By Sri.  A.S. Subhagan,  Member:

          This is a complaint filed under section  12 of the Consumer Protection Act 1986.

          2.  Facts of the case in brief:-  On  02.05.2018,  the Complainant  had purchased a  Samsug Refrigerator  R.T. 26H 3000 SE from the  1^st  Opposite Party paying a total sum of  Rs.20,249.99, including tax.  From  the date of the  first use of the refrigerator, it  began producing  extraordinary  huge sound on working.  Moreover, the  freezer used to fill with ice,  immediately, and the freezer become out of  use.  This matter was reported many times to the first Opposite Party, calling them.  They told to send the mechanic for examination and on 31.10.2018, he came and examined it.  After  the examination, the mechanic also told that no repairs were required  to the refrigerator.  But the mechanic had told that the forming of ice cubes in the freezer and  defrozing  it may be due to any  manufacturing defect.  On Complaining, again the mechanic examined the product and returned saying the  same  previous statements.  The refrigerator is not able to be used and it is kept idle in the Complainant’s house.  Hence a registered notice was forwarded to the Opposite Party seeking replacement of the defective refrigerator on the expenses of Opposite Party and refund of the price of the refrigerator including tax,  the loading and including charge of Rs.1,000/-, totaling Rs.21,250/-.  Subsequently on 28.12.2018, a  person called the Complainant over phone and stated that if there is any defect,  the product would be repaired and given and also stated that the mechanic had not submitted any defect as to the refrigerator.  So,  they denied the replacement of the product.  No reply has so far  been received by the complaint for the registered notice showing the complaint of the refrigerator.

          3. Hence the Complainant has approached the Commission with prayers to direct the Opposite Parties to

1.  To refund Rs.20,250/-  being the price of the refrigerator.
2. To pay Rs.1,000/-  being the amount spent for loading and unloading  charges.
3. To pay compensation of Rs.10,000/-  and
4. To pay cost of this complaint  Rs.500/-.

4. Notices were issued to  1^st and 2^nd  Opposite Parties for appearance. Both of

them appeared  and filed  separate version.

          5. Contents  of version filed by  1^st  Opposite Party, in brief:-  The Complainant had purchased the refrigerator from the shop of   1^st  Opposite Party as stated by the Complainant.  After using it for  ‘6’ months,  the complaint was reported to us.   1^st  Opposite Party had intimated the issue to  2^nd  Opposite Party.  Company mechanic had approached the Complainant, examined  the product on many occasions  and had repaired  it.  This has been admitted by the Complainant.  The Complainant himself has admitted that the company had offered  the Complainant to give the refrigerator  repaired.  Even though,  it has been stated by the  company mechanic that the Complainant was not willing to accept this but insisted to replace the refrigerator.   1^st  Opposite Party is only the selling agency in Kalpetta of  Samsung company products.  The after sale service is to be provided by the manufacturing company and hence 1^st  Opposite Party prays to release them from  this complaint.

          6.  Contents of version filed by  2^nd  Opposite Party  in brief:-  The averments in the complaint are based on illegal, baseless,  unwarranted and  unsound allegations.  The allegation  of the Complainant is that the product has  manufacturing defect.  It can not be construed  from the complaint.  It  is to be proved with proper analysis  Test Report to confirm the same.  The Complainant has failed to prove manufacturing defect.  It is admitted that the product was purchased from the  1^st  Opposite Party. The product does   carry warranty  only  which means that the product shall be repaired free of cost upto a limited  period of one year from the date of purchase.  The  technician   has opined that “ the statement of the Complainant that  the technician had told that the refrigerator had  no complaints but the  icing  in the freezer may have been due to any manufacturing  complaint” is false.  The averments of the Complainant that “the product purchased on 02.05.2018 is kept idle in my house without  any use.  Due to the manufacturing defect,  I must get the product replaced” are false.

          7. There have not been any kind of negligence,  unfair trade practice or deficiency in service.  All other  allegations in the complaint are false.

          8. Hence   2^nd  Opposite Party has prayed to dismiss the complaint.

          9. Proof affidavit was filed by the Complainant, Exts.A1  to A5 were marked from his side and he was examined as PW1.  Proof affidavit was also filed by  1^st  Opposite Party and they were examined as OPW1.  2^nd  Opposite Party had adduced no oral evidence.

          10. The case was examined by the Commission in detail and perused the documents marked and the oral evidence adduced by the parties to the complaint.  On a thorough  probe  into   the case, Commission  raised the following points  for consideration.

1.  Whether there has been any manufacturing defect to the refrigerator?
2. Whether there has been deficiency  in service/unfair trade practice from the side of the Opposite Parties?
3.  If so, relief  and cost?

11.  Point No.1:-  The allegation of the Complainant is that the refrigerator

purchased by him  from the   1^st  Opposite Party on 02.05.2018 had manufacturing defect and hence he has to get the refrigerator replaced  or to get refund of the  price of the product and to get  compensation, cost  of this complaint and other expenses.  The  contention of  1^st  Opposite Party is that they are only selling agent of the  2^nd  Opposite Party,  manufacturing  company and hence  2^nd  Opposite Party is liable for it.  On the other hand,  the contention of the  2^nd  Opposite Party is that  mere allegation of manufacturing defect can not  entertained but it is to be proved by the Complainant,  taking  steps for testing the product by appointing an expert commission   and it has not been done by the Complainant.  Manufacturing defect could not be attributed to the product but it is to be proved.  The Opposite Parties are also willing to cure the defect,  if any,  to the product  free of cost during  warranty.  The  Honorable  National Consumer Disputes Redressal Commission in Tata Motors Vs Rajesh Tyagi and  HIM Motors  shows Room 11.1(2014) CPJ 132 (NC) has held  that the Complainant should prove the defect by the support of a test report.  In the case of Classic Automobiles Vs Lila Nand Mishra and Another “1(2010) CPJ 235 (NC),  it has been stated that the  onus  to prove the  manufacturing  defect was  on the Complainant  and further, it was necessary to obtain expert opinion  before  saying that there was a manufacturing defect”.  In oral examination, PW1 (Complainant) has stated that  “Fridge s\ ]än ]dª Ipg-¸-§Ä sXfn-bn-¡p-¶-Xn\v Rm³ bmsXmcp   \S-]-Snbpw kzo-I-cn-¨n-«n-Ô.  So,  considering the above discussion,  Commission  finds that the Complainant has not taken any steps  to prove the alleged manufacturing defect to the refrigerator,  with the aid  of an Expert  Commissioner. In this circumstance, we are of the view that   mere allegation or  attribution of manufacturing  defect to the product could not be accepted and hence  point No.1 is proved  against the Complainant.

          12.  Point No.2:-  On going  through the complaint,  it can be found that the Complainant himself has stated that  the   1^st  Opposite Party  has told to repair the product.  But it is seen that the Complainant was not amenable to this.  The Opposite Parties in their version have stated that they are still  ready to cure the defect,  if any, to the product by repairing it.  So,  in the present  circumstances,  as manufacturing defect is not  proved  and as the    Opposite Parties  are  willing to cure the defect,  if any, to the  product,  Commission finds no negligence, deficiency in service  or unfair trade practice on the part of the Opposite Parties.  Therefore,  point No.2 is also against the Complainant.

          13. Point No.3:-  As point No.1  and point 2 are against the Complainant, he is not entitled to get the relief as prayed for.  So, point No.3 is also against  the Complainant.

          14. Hence, the complaint is liable to be dismissed.

          In the result,  the complaint is dismissed without cost.

Dictated to the Confidential Assistant, transcribed by him and corrected by me

and pronounced in the Open Commission on this the  24^th  day of October 2024. 

Date of filing:10.01.2019.

                                                                             PRESIDENT:   Sd/-      

                                                                               MEMBER   :    Sd/-  

                                                                             MEMBER    :   Sd/-

APPENDIX.

Witness for the Complainant:

PW1.          Stani Slavos. A.M.                             Pensioner.  

Witness for the Opposite Parties:

OPW1.        P.A. Varghese.                          Business.    

Exhibits for the Complainant:

A1.      Tax Invoice        .                            dt:02.05.2018.

A2.       Warranty Card.

A3(a)    Photo.

A3(b)    Photo.

A3(c )   Photo.

A4.       Letter.

A5(a)    Postal Receipt.

A5(b)     Track Consignment.

Exhibits for the Opposite Parties:

Nil.

                                                                        PRESIDENT:   Sd/-  

                                                                       MEMBER  :   Sd/- 

                                                                       MEMBER  :   Sd/-