Punjab

Ludhiana

CC/16/412

Sukhwinder Singh - Complainant(s)

Versus

Metro Cash & Cary India fLtd - Opp.Party(s)

Devan Verma Adv.

20 Jan 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No.412 of 27.05.2016

Date of Decision          :   20.01.2017

 

Sukhwinder Singh aged about 29 years son of Shri Kulwant Singh resident of 2206-A, Bhagwan Dass Colony, Near Shine Medical Store, Salem Tabri, Ludhiana.

….. Complainant

Versus 

1.M/s Metro Cash & Carry India Pvt. Ltd., Hadbast No.89 (Near Octroi Post), Village Bhatian, NH-1, Jalandhar Bye Pass, Ludhiana 141014.

2.M/s Samsung India Electronics Pvt. Ltd.,having its registered office A-25, Ground Floor, Front Tower, Mohan Co-Operative Industrial Estate, New Delhi-110044 through its Managing Director.

3.M/s.Samsung India Electronics Pvt. Ltd., having its Service Centre Imperial Refrigeration, Plot No.32, Sector 3, Guru Gian Vihar, Sua Road, Jawaddi, Ludhiana.

..…Opposite parties

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

For Complainant                     :         Sh.Devan Verma, Advocate

For OP1                         :         None

For OP2 and OP3                    :         Sh.Govind Puri, Advocate for OP2 and OP3.

 

PER G.K DHIR, PRESIDENT

 

1.                          Shorn of unnecessary details, the case of the complainant is that he purchased 1.5 Ton Samsung Inverter A.C. from OP1 on 27.6.2014 through invoice No.0/0/(42) 0008/004052 dated 27.06.2014 for Rs.37,990/-. After one and half month of its purchase, the said A.C.started creating problem because it was not giving proper cooling. Complaint was lodged with OP1, but he kept on procrastinating the matter and finally refused to remove the problem in A.C by saying that OP2 is responsible for removal of defects because of A.C being within warranty. Thereafter, complainant approached OP2 vide complaints No.41765612200 and 4778742080 dated 3.8.2014, 4182110267 dated 27.9.2014, 4193027277 dated  22.4.2015, 419315672 dated 24.4.2015, 4193940115 dated 8.5.2015 respectively. Op2 referred the complainant to OP3 by claiming that the same is authorized centre. OP2 claimed that complaint will be forwarded to OP3. Thereafter, employee of service centre of OP3 came to the premises of the complainant, but they remained unable to remove the defect in the A.C. Employees of OP3 promised to return back with senior engineer for removing the problem, but thereafter, none turned up, despite repeated approaches by the complainant. Complainant got the A.C. repaired from the authorized service centre namely Imperial Refrigeration, Plot No.32, Sector 3, Guru Gian Vihar, Sua Road, Jawaddi, Ludhiana. Said service centre even could not affect the due repair. Thereafter, matter was reported to the head office as well as to OP2, but no response was received. Complainant apprehended as if the AC supplied by OP1 was a second hand AC, which was given a look of new A.C. Complainant claims to have suffered mental tension, physical cruelty and as such, by pleading deficiency in service on the part of Ops, prayer made for directing Ops to give new AC in place of old one. Compensation for mental harassment of Rs.50,000/- and litigation expenses of Rs.20,000/- more claimed.

2.                In written statement filed by Op1, it is claimed interalia as if the complaint is not maintainable; this Forum lacks jurisdiction because the complainant is not a consumer. Besides, it is claimed that the complaint is frivolous and vexatious. OP1 operating the wholesale cash and carry stores/distribution center (Store) in major towns of India and caters exclusively to its business registered customers only. In order to become a member, all business entities/commercial establishments should register with OP1 by submitting copies of valid business licenses and by filling up a Customer Registration Form after accepting the terms and conditions detailed therein. Complainant has no locus standi to file this complaint. Metro Sells goods to the customer on the condition that they are for resale, commercial, business or industrial use only. Customer agrees not to purchase goods at Metro Distribution Centre for personal consumption. Purchases are not allowed by persons as private individuals for personal use. OP1 issued card referred in complaint to M/s Balwinder Karyana Store and not to the complainant in his individual capacity. Complainant has concealed the material facts while filing this complaint. If A.C. in question is under warranty with OP2 and OP3, then liability for curing the defect is not of OP1. Admittedly, purchase of the AC in question from OP1 took place vide invoice dated 27.6.2014 for Rs.37,990/- in the name of M/s Balwinder Karyana Store.  A.C was sold to the complainant along with its manual and   warranty of the manufacturer. No warranty ever given by OP1 to the complainant. Each and every other averment of the complaint denied by praying for dismissal of the complaint.

3.                In separate joint written statement filed by OP2 and OP3, it is claimed that A.C. of the complainant was out of warranty, when the present complaint was filed because warranty period expired on 26.6.2015 after its purchase on 26.6.2014. Last complaint was lodged by the complainant on 7.5.2016 and thereafter, the service engineer visited the complainant premises and found that AC required gas recharging. In view of AC being out of warranty, the estimate was given to the complainant, but complainant refused to pay for recharging of the gas. Thereafter, the complainant never lodged complaint with regard to any kind of problem in the A.C.,but filed this false complaint. Complaint alleged to be filed for gross misuse of process of law. After purchase of the AC on 27.6.2014, the same was duly installed an the house of the complainant. Working of the AC was explained to the complainant and his family by Demo. Complainant was fully satisfied with the working and performance of the AC at the time of installation. There was no problem in AC, when it was installed at the house of the complainant. On 8.5.2015, complainant lodged first complaint with regard to low cooling of AC. On inspection by the service engineer, it was found that only temperature setting was required and the same was done. No other defect was found in A.C and thereafter, complainant was satisfied with the working of AC. No irreparable manufacturing defect or inferior quality of the product complained of. In the absence of any expert evidence, the claim cannot be allowed. Legal duty is on the complainant to prove the manufacturing defect, but no technical expert report has been produced and nor any evidence in that respect has been produced. Replacement is permissible only when defect developed during the period of warranty is of such a nature that it cannot be cured or repaired. That defect not proved and as such, replacement is not permissible at all. Besides, it is claimed that there is no deficiency in service or breach of contract on the part of Ops or its service centre because service never denied after sale as per the terms and conditions of the warranty. Each and every other averment of the complaint denied.

4.                Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 & Ex.C2 and thereafter, he along with his counsel closed the evidence.

5.                On the other hand, Sh.Sandeep Kumar, Manager of OP1 concern tendered in evidence his affidavit Ex.OP1/1 along with documents Ex.OP1/A and OP1/B and then closed the evidence.

6.                Counsel for OP2 and OP3 tendered in evidence affidavit Ex.RA of Sh.Anindya Bose, Deputy General Manager along with documents Ex.R1 and Ex.R1/A and thereafter, closed the evidence.

7.                Written arguments not submitted by any of the parties. Oral arguments alone addressed and those were heard. Records gone through minutely. 

8.                Undisputedly, A.C in question was purchased by the complainant through OP1 on 27.6.2014 for amount of Rs.37,990/-. Copy of invoice in this respect has been produced on record as Ex.C1. Perusal of Ex.C1 reveals that this AC was purchased in the name of M/s Balwinder Karyana Store on production of identity card Ex.C2 issued by OP1. Ex.C2 is the card of Sukhwinder Singh as proprietor of M/s Balwinder Karyana Store. If that be the position, then certainly contents of written statement of OP1 and of affidavit Ex.OP1/1 of Sh.Sandeep Kumar, Manager are correct that OP1 concern operated the wholesale cash and carry stores/distribution centers in major towns of India and caters exclusively to its business registered customers only. In view of catering of OP1 for business registered customers, it is obvious that A.C in question purchased by the complainant through OP1 by representing as if the same required for business needs. If that need would have been expressed by the complainant only, then OP1 would have sold the A.C in question to the complainant. In view of involvement of element of business for purchase of AC by the complainant from OP1, this complaint against OP1 certainly is not maintainable and as such, the same is hereby dismissed against OP1 only.

9.                Contents of written statement of OP2 and OP3 establish that last complaint was lodged by the complainant on 7.5.2016 and thereafter, service engineer visited the complainant premises for finding that AC requires gas recharging. In view of this admission of OP2 and OP3, it is obvious that OP2 and OP3 ready and willing to provide services as per the terms and conditions of the warranty. That warranty expired on 26.6.2015 as per contents of written statement of OP2 and OP3. Even if that warranty expired on 26.6.2015, despite that contents of para no.2 of complaint establishes that the complainant approached OP2 vide complaints No.41765612200 and 4778742080 dated 3.8.2014, 4182110267 dated 27.9.2014, 4193027277 dated  22.4.2015, 419315672 dated 24.4.2015, 4193940115 dated 8.5.2015. So, virtually the complainant approached OP2 for redressal of the grievance of improper cooling of AC during period from 3.8.2014 to 8.5.2015 also. Question of mentioning of the complaints number with dates specifically by the complainant to arise only, if really such complaints of the complainant would have been registered by OP2 or OP3. The complaints are auto generated and even SMS are sent to the complainant concerned now a days and as such, in view of the mention of complaint’s number with dates by the complainant  conclusion liable to be drawn that actually the complaints were lodged by the complainant with OP2 during period from 3.8.2014 to 8.5.2015 i.e. within the warranty period. So, it is not a case, in which, the grievance of the complainant sought to be got redressed beyond the period of warranty.

10.              After going through para no.3 of heading preliminary objections of written statement filed by OP2 and OP3, it is made out that the complainant lodged first complaint with regard to the low cooling in AC on 8.5.2015 and as such, this admission of OP2 and OP3 fortifies the conclusion that actually complaints were lodged by the complainant on 8.5.2015 and prior thereto as referred above. It is the case of the complainant that even after 8.5.2015, he had been approaching OP3 many times, but all efforts of such approaching remained futile. Contents of affidavit Ex.CA of complainant in this respect virtually remains un-rebutted and as such, the same leans in favour of holding that virtually the complainant had been approaching OP2 and OP3 time and again for redressal of grievance, but to no effect. That approach was made by the complainant to OP2   or OP3 for repair of the AC, but repair of the same not done and that is why complainant has to approach this Forum.

11.              As per law laid down in case of Swami Automobiles Pvt. Ltd. vs. Jagdish Chander and others-2013(4)CLT-156(Chandigarh State Consumer Disputes Redressal Commission), if defects persisted in spite of repeated repairs, then direction need to be issued to rectify the defect and pay compensation, even if the warranty period has expired.

12.              However, benefit from ratio of case Jugnu Dhillon vs. Reliance Digital Retail Ltd and others-2014(1)CLT-588(Delhi State Consumer Disputes Redressal Commission), cannot be availed by the counsel for the complainant because in the reported case, compressor failure occurred within 2-3 months from the purchase of new AC and that is why inference of manufacturing defect was drawn. However, in the case before us, no report of expert produced to show that defect was on account of compressor failure or manufacturing defect. Even allegation of compressor failure not levelled in the complaint. Only allegation is that AC was not working properly because it was not giving proper cooling and that is why registered complaints had to be lodged. At page no.3 of the complaint, it is mentioned that complainant apprehends as if AC   supplied was a second hand AC, but for proving the same, report of expert is required. No expert opinion obtained for proving that supplied AC was a second hand AC and as such, this allegation remains an apprehensive allegation only. Apprehensions alone cannot be formed the basis for granting relief. However, deficiency in service on the part of OP2 and OP3 remains to the extent that they did not rectify the cooling defect in     the AC, despite lodging of registered complaints on different dates. In case of Luminous Power Technologies Pvt. Ltd and another vs. Kanwan Sain and another-2013(3)CPJ-34(Uttarakhand State Consumer Disputes Redressal Commission), appellate company as well as its authorized dealer had been harassing respondent no.1 by supplying defective inverter and not providing satisfactory service, despite charging of huge amount for repair and that is why it was held that defective inverter and battery was supplied. That is not the position in the case before us. Only fact proved is that despite repeated requests, defect in the AC not cured. These complaints lodged during warranty period and as steps for removal of the defect within warranty period not taken place and as such, certainly complainant is entitled for the repair of the AC free of cost even after the warranty period has expired.

14.              In case of Tata Construction Equipment Company Limited vs. Rajendra Prasad-2014(2)CLT-619(Rajasthan State Consumer Disputes Redressal Commission), appellants refused to repair and replace the machine. Job cards were submitted before the Forum to show that there were major defects in the machine and the appellants were just killing time to expire the date of warranty period. That is not the position in the case before us because here, the job cards are not produced on record, but only terms and conditions of warranty Ex.R1 and the warranty card Ex.R1/A  are the documents produced by the OP2 and OP3. Question of issue of job cards in the present case would have been arisen only, if OP2 and OP3 would have admitted about lodging of these registered complaints by the complainant with OP2 during period from 3.8.2014 to 8.5.2014. That fact has not been admitted by OP2, but claim of the complainant regarding lodging of these complaints is fully believable and that is why he is able to disclose the number of complaints with dates.

15.              Consumer Protection Act,1986 is a beneficial statue enacted for the better protection of the interests of consumers and that is why it is not to be seen as to where from consumer has purchased the goods. After purchase, privity of contract still remains between the customer and the manufacturer is ratio of law laid down in case of Electro Audio Vision vs. M/s Diddan Construction-2014(1)CLT-428(Meghalaya State Consumer Disputes Redressal Commission). In view of this, manufacturer and the service centre i.e. OP2 and OP3 cannot escape from liability of rectifying the defects pointed out during warranty period, particularly when those defects not shown to be removed by producing any job card/job sheet, even though it is admitted that complaint was lodged on 7.5.2015 by the complainant and even on 8.5.2015. If complaint on 8.5.2015 during warranty period was lodged by the complainant as per admission suffered in written statement of OP2 and OP3, then certainly job card dated 8.5.2015 could have been easily produced by OP2 and OP3, but the same is not produced and as such, virtually OP2 and OP3 are withholding the true facts, owing to which, inference of deficiency in service on the part of OP2 and OP3 is drawable.

16.              Therefore, as a sequel of the above discussion, complaint against OP1 is dismissed, but same is allowed against OP2 and OP3 in terms that OP2 and OP3 will repair the AC in question free of costs within 90 days from date of receipt of copy of order. Compensation for mental harassment of Rs.2,000/- (Rupees Two Thousand only) and litigation expenses of Rs.1,000/- (Rupees One Thousand only) more allowed in favour of complainant and against OP2 and OP3, whose liability held as joint and several. Copies of order be supplied to parties free of costs as per rules.

17.                        File be indexed and consigned to record room.

 

                      (Param Jit Singh Bewli)                        (G.K.Dhir)

                                  Member                                        President

Announced in Open Forum

Dated:20.01.2017

Gurpreet Sharma.