DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC.No.130 of 18.06.2009<br /> Decided on: 12.11.2009<br /> <br /> Vivek Sarwal S/o Sh. Parkash Sarwal, resident of house No. 1762, Street No.4, Nai Basti, Bathinda.<br /> …….Complainant.<br /> Versus<br /> <br /> 1. Maheshwari Marketing, Distributor LG Electronics India (P) Ltd., 46, New Cloth Market, Hanuman Chowk, The Mall, Bathinda-151001.<br /> 2. LG Electronics India Pvt. Ltd., having its Registered Office at Plot No.51, Udyog Vihar, Surajpur-Kasna Road, Greater Noida-201306 (U.P0,through its Managing Director/Authorised person.<br /> …….Opposite parties.<br /> <br /> Complaint under Section12 of the Consumer Protection Act, 1986.<br /> <br /> Present:<br /> For the Complainant : Sh. Gaurav Aggarwal, counsel for the <br /> complainant.<br /> For the Opposite parties : Sh. Sunder Gupta, counsel for opposite parties.<br /> <br /> QUORUM<br /> <br /> Sh. George, President.<br /> Dr. Phulinder Preet, Member.<br /> Sh. Amarjeet Paul, Member.<br /> <br /> ORDER<br /> <br /> GEORGER, PRESIDENT:-<br /> <br /> 1. The present complaint has been filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as ‘Act’) with the allegations against opposite parties that he purchased one LG Refrigerator from opposite party No.1, vide Invoice dated 27.10.2008 for Rs. 20,000/-. The Refrigerator was operated/handled, as per instructions of the Booklet. The cooling of the Refrigerator was not proper/satisfactory from the very first day of its purchase, and this fact was brought to the notice of the opposite party No.1. Opposite party No.1 asked to him to wait for some time, as it takes some time to work and proper cooling. However, when he found no improvement, he reported the matter to opposite party No.1, but opposite party No.1 kept on lingering on one or the other pretext. He ultimately, reported the matter to opposite party No.1 in January, 2009. Opposite party No.1 instead of helping him, asked him not to visit his shop again and again. He has lodged the complaint on 27.01.2009 telephonically with LG Customer Service, but to no effect. He made complaint again telephonically, on 07.02.2009 with LG Customer Service. On 07.02.2009, some persons turned up, and after checking the Refrigerator, apprised the complainant that the Refrigerator has gas leakage problem, and refill of gas is required in the Refrigerator. The process of filling the gas in the Refrigerator involved breaking the pipes, and after filling the gas welding the same. He kept his patience, the person after filling the gas took his signature on the blank Job Card. Despite repairing the Refrigerator, the problem remained, and as such, he had to lodge another complaint with LG Customer Service on 04.06.2009, and 05.06.2009. After few days, one person visited him, and after checking the Refrigerator apprised him that the Refrigerator having gas choking problem, and he again offered to refill the gas once again in the Refrigerator, but this time complainant didn’t give consent. He showed copy of the Warranty Card to the person as well as opposite party No.1, being a dealer and having knowledge regarding the defect in the Refrigerator, and requested for replacement of the same. However, opposite party No.1 did not agree to his request nor he agreed to refund the purchase price of the Refrigerator, and therefore, he had to file the present complaint, seeking directions to the opposite parties to exchange the Refrigerator, or refund its purchase price alongwith interest @ 18% from the date of purchase till realization of the amount, and to pay him compensation to the tune of Rs. 90,000/- for mental agony, harassment and inconvenience, he has suffered, alongwith cost of litigation to the tune of Rs. 5,500/-.<br /> 2. Opposite parties filed reply raising objections that complaint is not maintainable; there is no manufacturing defect in the Refrigerator. The same is fully repairable, and therefore, complaint is not maintainable; complainant has no locus-standi, or cause of action; complaint has been filed on false and frivolous facts; complainant has not come with clean hands before this Forum, and has suppressed true and material facts. The actual facts are that after complaint was received regarding no cooling in the Refrigerator from the complainant on 26.01.2009, Parminder Singh, Service Engineer of the Authorized Service Station of the opposite parties visited him on 27.01.2009, and refilled the gas in the Refrigerator free of cost, and complainant put his signatures on the Job Sheet as fully satisfied, and thereafter the compliant, regarding no cooling was received only on 04.06.2009, when the customer refused to allow the necessary repair. Since, the defect of no cooling has occurred within warranty period, so, opposite parties are still ready to repair the defect of no cooling free of cost.<br /> 3. On merits while denying all the allegations of the complainant, facts pleaded in preliminary objections of para No. 2 were reiterated on merits as well.<br /> 4. Complainant in order to prove the allegations, filed his own affidavits dt. 10.06.2009 and dt. 07.09.2009 Ex.C- and Ex.C-2, and also brought on record, copy of retail Invoice dt. 27.10.2008 Ex.C-3; copy of warranty card Ex.C-4; copies of job sheet Ex.C-5 to Ex.C-8, and copy of letter dt. 10.06.2009 Ex.C-9.<br /> 5. To controvert the evidence of the complainant, opposite parties filed affidavits of Sh. Jagdish Lal Maheshwary, Partner, Sh. Virinder Kumar, and Sh Kamlesh dt. 07.10.2009 Ex.R-1 to Ex.R-3 and also brought on record, copy of letter dt. 10.06.2009 alongwith postal receipt Ex.R-4 and copies of certificate Ex.R-5 to Ex.R-7.<br /> 6. We have heard the learned counsel for both the parties and perused the entire record of the case carefully.<br /> 7. After going through the entire record of the case, it appears that there is no dispute between the parties with regard to the fact that complainant purchased one LG Refrigerator vide Invoice dt. 27.10.2008 for a sale consideration of Rs.20,000/- from opposite party No.1, manufactured by opposite party No.2, and the Warranty Card Ex.C-4 was issued to the complainant. It is also not in dispute as is emerging from the pleading of the parties as well as evidence available on the record that immediately after purchase of the said Refrigerator, it started troubling the complainant, and this fact was brought to the notice of opposite party No.1. Opposite party No.1 asked the complainant to wait for some time, as the Refrigerator will take some time to start proper cooling, but to no effect in the problem of cooling of the Refrigerator. Complainant once again requested the opposite party No.1 that there is no cooling in the Refrigerator, but opposite party No.1 failed to help the complainant. Therefore, the complainant lodged a complaint telephonically with LG Customer Service on 27.01.2009, but to no effect, as no one turned up to check the problem. <br /> 8. The complainant again lodged a complaint telephonically with LG Customer Service, and after that, one person came, he checked the Refrigerator, and apprised the complainant of the gas leakage problem, and refilled the gas in the Refrigerator, but the problem continued, and complainant was put to unnecessary inconvenience. Complainant again lodged a complaint on 04.06.2009, and also on 05.06.2009. After few days, one person from LG Customer Service visited the complainant, and after checking the Refrigerator, he apprised the complainant that the Refrigerator is faulty due to gas choking problem, and offered him to refill the gas once again in the Refrigerator, but the complainant did not give consent, and on the basis of Warranty Card alongwith purchase of the Refrigerator, he asked opposite parties No.1 and 2 to exchange the Refrigerator as the Refrigerator is having the manufacturing defect, and causing continuously no cooling problem, and he cannot afford to continuously being harassed. If the refrigerator would not have manufacturing defect, there would have not been either the gas leakage or gas choking problem. Reply filed by the opposite parties as well as the affidavits brought on the record of opposite party No.1 Ex.R-1, Virinder Kumar, Service Engineer of opposite party No. 2, and Kamlesh mechanic of service provider Virinder Kumar Ex.R-3, reveals that it has been admitted by the opposite parties that the complainant lodged a complaint regarding no cooling in the Refrigerator in the month of Jan., 2009, and on 27.01.2009, the gas was refilled in the Refrigerator. However, the complainant again made a complaint of no cooling on 04.06.2009. The representative of opposite parties visited the complainant and told the complainant that cooling is disturbed due to gas choking problem. Since, the defect of no cooling has occurred within warranty period, so, opposite parties are still ready to repair the defect of no cooling free of costs. <br /> 9. That the opposite parties by filing the three affidavits Ex.R-1 to Ex.R-3 have tried to show that no cooling effect due to gas leakage or choking of gas, is not a manufacturing defect. Rather they are ready to refill the gas free of cost. Now, the question is, as to how many times, the complainant has to approach the opposite parties for removing of the same defect, but he has been complaining about it from the very day, he purchased the Refrigerator for a big sum of Rs. 20,000/-. The problem of no cooling due to gas leakage or gas choking is not a routine problem, which is found in general in the Refrigerator of the kind sold by opposite parties to the complainant. Therefore, if the defect, is not assured, that it will not be removed permanently, definitely, complainant is well within his right to refuse to get the gas refill second time, within a span of about six months of newly purchased Refrigerator, which is normally, impossible, without any manufacturing defect.<br /> 10. The learned counsel appearing on behalf of opposite parties has relied upon case titled Anupriya Sethi Vs. CMPL Motors Pvt. Ltd. and others, 2004 (1) CLT 219, wherein, it has been held, “complainant has failed to show by any cogent and reliable evidence that the vehicle in question suffered from manufacturing defect,.” Similarly in case titled Hardeep Singh Vs. Arvindra Electronics Pvt. Ltd, and another, 2004 (2) CLT 405, wherein, it has been held, “complainant had not proved any manufacturing defect in the T.V. by leading any expert evidence, and thus, refund of money cannot be ordered. Order of District Forum to check the T.V. set, and rectify the defects whatever are herein, is just and fair was upheld.”<br /> 11. From the facts and circumstances of the case that it had been admitted by opposite parties in their reply that no cooling effect resorted in the Refrigerator, firstly, due to leakage of the gas and for the second time, it occurred due to gas choking and only cause, the Refrigerator is within warranty period. They are ready to refill the gas free of cost, meaning thereby, opposite parties have themselves brought on the record that the defect of no cooling occurred in the Refrigerator is not likely to manufacturing defect. Thus appears to be no need for any expert evidence to finally conclude that either the gas leakage or choking of the gas is not normally found in the newly manufactured Refrigerators, and thus we can safely conclude that the gas leakage/gas choking is resulting time and again not only for any defect, which can be removed by refilling the gas. The complainant who has spent an amount of Rs. 20,000/- for purchase of the Refrigerator from opposite party No.1, manufactured by opposite party No.2 has been put to continuously mentally torture, harassment and inconvenience, due to the inherent defect of no cooling in the Refrigerator, which itself amounts to deficiency in service and unfair trade practice. <br /> 12. The defects in the Refrigerators as referred to here-in-above, have occurred within warranty period repeatedly after, the complainant has paid full cost with a view to utilize the same, and with hope that the Refrigerator will not cause any problem to him. The developing of the defect of gas leakage or gas choking time and again within warranty period, itself amounts to deficiency in service. For this, we are supported with view taken by Hon’ble Himachal Pradesh State Consumer Disputes Redressal Commission, <br /> <br /> Shimla, in case titled Khem Raj Sharma Vs. Ashok Kumar Sharma & Co., II (2008) CPJ 141, where in, it has been held that :- <br /> “A customer having purchased a new Set after paying full cost with a view to utilize the same and not to cause problem for himself by taking it every now and then for removal of the defects in it. Unless the defect was inherent in the manufacture of the Television Set in question, there was no reason why the defects would crop up which may force the customer like appellant to approach the dealer like respondent in the present case every now and then. As such, on admitted facts, mere non-filling of the expert opinion does not wipe out the fact that the Television Set is a clear-cut case of not only deficiency in service, but also of unfair trade practice adopted by the respondent. Here, we have no reason to disbelieve the appellant that when the defects were persisting, he was informed by the Mechanic of the respondent that the Set was old one, whereas he has paid the price of a new Television Set to the respondent.”<br /> 13. In view of the aforesaid discussion, we allow the complaint, and it is ordered that the opposite parties shall replace the Refrigerator in question with a new one of the same model, and make with fresh warranty for full period, or refund a full cost of the Refrigerator with interest @ 9% P.A. from the date of purchase i.e.27.10.2008 till the payment is finally paid to the complainant, plus Rs. 15,000/- towards compensation on account of mental tension, agony, harassment and inconvenience, the complainant has under gone, after purchase of the defective Refrigerator, and another amount of Rs. 5,000/- towards litigation expenses. The complainant on receipt of a new Refrigerator, or cash payment as referred to above, will hand over old Refrigerator to opposite party No.1. <br /> 14. Opposite parties No.1 and 2 are liable to comply with this order jointly and severally. <br /> 15. The compliance of this order be made within 45 days from the date of receipt of copy of this order.<br /> 16. The copy of this order be sent to the parties concerned free of cost and file be indexed and consigned.<br /> <br /> <br /> Pronounced (GEORGE)<br /> 12.11.2009 PRESIDENT<br /> <br /> <br /> (DR. PHULINDER PREET)<br /> MEMBER<br /> <br /> <br /> (AMARJEET PAUL)<br /> MEMBER<br /> <br /> <br /> <br />