Haryana

Panchkula

CC/288/2020

AKASH MANCHANDA. - Complainant(s)

Versus

MODERN SALES. - Opp.Party(s)

IN PERSON.

05 Feb 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

 

                                                       

Consumer Complaint No	:	288 of 2020
Date of Institution	:	22.09.2020
Date of Decision	:	05.02.2024

 

 

Aakash Manchanda, Prop. Jai Laxmi Agency, Plot No.154, Industrial Area, Phase-I, Panchkula.

 

                                                                ….Complainant

Versus

1.     Modern Sales, SCO No.-1066, Sector 22-B, Chandigarh through its Authorised Signatory.

2.     Johnson Controls-Hitachi Air Conditioning India Ltd., SCO No.57, 2^nd Floor, Sector-47-C, Chandigarh through its authorized signatory.

3.     Supreme Electronics, Plot No.78, Industrial Area, Phase-II, Chandigarh through its authorized signatory.

                                                                                       ….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

 

Before:              Sh.Satpal, President.

Dr.Sushma Garg, Member

Dr.Barhm Parkash Yadav, Member

 

 

For the Parties:   Sh. Ashok Kumar, Advocate for the complainant.

                        Sh. Puneet Tuli, Advocate for OPs No.1 & 2.

                        OP No.3 ex-parte vide order dated 12.11.2020.

                                               

 

                                        ORDER

 

Satpal, President

1.              The brief facts, as alleged, in the present complaint are, that the complainant had purchased a refrigerator, having model no.R-VG610PND3 for a consideration of Rs.72,930/- vide invoice no.MS-GST-145 dated 19.07.2017, from OP No.1. The said refrigerator was manufactured by OP No.2. The complainant, after the purchase of said refrigerator, noticed that cooling of the refrigerator was not proper and accordingly, he contacted the OP No.1 in the month of July 2018. The OP No.1 asked the complainant to raise the issue with the manufacturer i.e. OP No.2 and accordingly, the issue was raised with OP No.2, who sent the engineer to visit the house of the complainant for checking of the refrigerator. The engineer as deputed by the OP No.2 informed the complainant that the glass of the door of the refrigerator had got broken, due to which, the refrigerator was not giving the proper cooling. The complainant, thereafter, sent various emails and made telephonic calls to the Op No.2, who, ultimately, got the door of the refrigerator replaced on 16.07.2019. It is averred that, in the month of December 2019, the complainant was approached by the executive of OP No.2 and was provided the AMC (Annual Maintenance Contract) on the payment of Rs.590/-. The said AMC was valid for 03.12.2019 to 02.12.2020 and in this regard, a certificate was issued by OP No.2 vide receipt no.CHD-51081. It is stated that the refrigerator gave proper cooling for a couple of months but, with the passage of time, again started creating trouble with regard to the cooling during the month of March, 2020.  Besides this, the door of the refrigerator also started creating noise, which was brought in to notice of the OP No.2 but to no avail. Thereafter, on the basis of repeated request and emails, the service engineer of the Opposite Party No.3(hereinafter referred to as OP No.3), who is authorized service agent of manufacturer(OP No.2) visited the residence of the complainant on 14.07.2020 and on inspection of the refrigerator, found the door of the refrigerator as broken from lower side and on this count, the refrigerator was stated to be giving not proper cooling. It is averred that the said refrigerator suffers from some manufacturing defects. Due to act and conduct of the OPs, the complainant has suffered mental agony, physical harassment and financial loss; hence, the present complaint.

2.             Upon notice, the OPs No.1 and 2 appeared through counsel and filed written statement by raising preliminary objection that the complainant has not approached the Commission with clean hands as he has suppressed the true material facts. It is submitted that the issues as and when raised by the complainant were duly attended by deputing the technical persons. It is submitted that the technical persons, who were deputed, found that there was negligence on the part of the complainant, while using the refrigerator. As per technical persons, the door of the refrigerator was opened excessively and forcefully, due to which, proper cooling was not being given by the refrigerator. It is submitted that the door of the refrigerator was replaced free of cost as a goodwill gesture. It is submitted that the complainant was categorically instructed that the door of the refrigerator was to be opened up to 130⁰ C only and not beyond that. The complainant, acting in a negligent manner, did not follow the instructions of the technical persons and opened the door of the refrigerator beyond 130⁰ C, due to which, the problem of cooling had occurred again. It is submitted that the complainant was offered the replacement of the door again without any charge but he was not satisfied and refused to sign the job-sheet dated 07.10.2020. It is stated that the present complaint does not fall within the definition of consumer dispute as the complainant has failed to prove any manufacturing defect in the product in question. It is submitted that the complainant had sought the refund of the product and compensation, which are clearly beyond the express terms and condition of the warranty. It is further submitted that the replacement of the product or refund of the purchase price is not permissible unless the complainant proves by cogent and credible evidence supported by the report of the technical expert that the product suffers from inherent manufacturing defect. As per condition of the warranty, replacement of the product or refund is expressly excluded. The warranty conditions cover only repair or replacement of any part, which needs replacement or repair for any reason of defective workmanship and defective components.

                On merits, it is submitted that the complainant had purchased the refrigerator in question on 19.07.2017 for a consideration of Rs.72,930/- and there was warranty of one year for the said product but the compressor had warranty of 10 years. Rest of the allegations alleged by the complainant has been denied and it has been prayed that there is no deficiency in service on the part of the OPs No.1 & 2 and as such, the complaint is liable to be dismissed.

                Notice was issued to the OP No.3 through registered post, which was received back with the report of ‘refusal’ and thus, due to non appearance of OP No.3, it was proceeded ex-parte by this Commission vide its order dated 12.11.2020.

3.             To prove the case, the learned counsel for the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-5 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP No.1 & 2 has tendered affidavit Annexure R-A along with documents Annexure R-1 to R-3 and closed the evidence.

4.             We have heard the learned counsels for the complainant as well as OPs No.1 & 2 and gone through the entire record including the written arguments filed by the learned counsels for the complainant as well as OPs No.1 & 2, carefully and minutely.

5.             During arguments,, the learned counsel for the complainant reiterated the averments as made in the complaint as also in the affidavit(Annexure C-A) and contended that the refrigerator as purchased from the OP No.1 for a sum of Rs.72,930/- on 19.07.2017 was found suffering from manufacturing defects as the issue of low cooling could not be resolved by the technical persons, as deputed by the OP No.2 as well as OP No.3 and thus, the complaint is liable to be accepted by granting the relief as prayed for in the complaint.

6.             On the other hand, the learned counsel on behalf of Ops No.1 and 2 reiterated the averments as made in the written statement as also in the affidavit(Annexure R-A) and contended that the replacement of the product or refund of the purchase price of the product is not permissible as the same are beyond the scope of warranty conditions. The learned counsel argued that the complainant has failed to place any cogent, credible and adequate evidence, supported by the opinion/ report of technical expert, in support of his contentions that the refrigerator was suffering from inherent manufacturing defect. It is argued that report of an expert is mandatory as required vide Section 38(2)(c) under the C.P. Act 2019. The learned counsel further argued that the Ops were ready to replace the door without any charge but the same was not acceptable to the complainant as he had insisted for the replacement of the product with new one and refused to sign the job-sheet dated 07.10.2020. The learned counsel argued that there is no manufacturing defect in the product. It is argued that the complainant had not followed the instructions as given to him by the technical persons qua not opening of the door beyond 130 degree and thus, the complaint is liable to be dismissed being frivolous, baseless and meritless. Reliance has been placed on the following case laws:-

i.      Sushila Automobiles Ltd. Vs. Dr. Birender Narain & Ors. reported        in 3(2010) CPJ 130(NC).

ii.       Stereocraft Vs. Monotype India Ltd. New Delhi reported in (2000)      NCJ SC 59.

iii.      Shivprasad Paper Industries Vs. Senior Machinery Company     reported in I (2006) CPJ 92 NC.

7.             The OP No.3 has preferred not to contest the present complaint by remaining absent despite service of notice and accordingly, it was proceeded ex-parte vide order dated 12.11.2020 and thus, the assertions made by the complainant go unrebutted and uncontroverted.

8.             After hearing the learned counsels for the parties and perusing the entire record available on the file, it is found that the refrigerator, having a warranty of one year and 10 years on its compressor, was purchased by the complainant from OP No.1 vide invoice dated 19.07.2017(Annexure C-1) amounting to Rs. 72,930/-. It is also found that no complaint was lodged by the complainant qua the functioning of the said refrigerator or any of its part within the warranty period of one year. The learned counsel for the complainant even on the asking of the Commission has failed to furnish any such record, which shows that the extended warranty i.e. beyond the period of one year was availed by the complainant; as such, the claim of the complainant qua refund of the price of the refrigerator in question is found beyond the scope of the warranty conditions.

9.             However, the claim of the complainant is not liable to be rejected in toto because  the door of the refrigerator in question was replaced on 16.07.2019 by the Ops with new one as the same was found having defects in it. Pertinently, the said replaced door again became defective and in this regard, we have come across the job-sheet no.20071400613 dated 15.01.2020(Annexure C-4) issued by the OP No.3, wherein  the refrigerator in question was reported to have had the door cracked  from the lower side.  The complainant has been found to have raised the issue of low cooling vide several emails sent to the OPs on 17.07.2020(Annexure C-3), dated 22.07.2020, 07.08.2020, 10.08.2020 and 31.08.2020. The complainant is further have been found to have raised the issue of low cooling vide live chats on www.hitachiaircon.in dated 21.08.2020 and 02.09.2020.

10.            The OPs No.1 & 2 have taken the plea in their defence qua the defects in the door of the refrigerator that the complainant had not followed the instructions as given to him by the technical persons qua not opening of the door beyond 130⁰ C. However, no report of any technical person in support of the contentions of the Ops has been placed on record; thus, the plea taken by the OPs in their defence is not tenable. Needless to mention here that a manufacturer of a product is bound to equip its product with parts of merchantable quality, having reasonable durability, but in the present case, the door of the refrigerator was necessitated to be replaced within a short period on account of defects in it. The OP No.2, who, is manufacturer of the refrigerator in question, had given 10 year warranty on the compressor and one year warranty on the rest of product. In the present case, the door of the refrigerator was not of merchantable quality; so, providing of the warranty of ten years on the compressor had no meaning. We have no hesitation to mention here that the OP No.2 had sold the refrigerator with its part, which were not of merchantable quality.

11.            In the totality of the facts and circumstances as discussed above, we deem it fair, reasonable and proper to allow the present complaint partly with the directions to the OPs No.1 to 3 to pay 75% of the purchase price i.e. Rs.72,930/- of the refrigerator in question as incurred by the complainant; accordingly, the OPs no.1 to 3  are held liable, jointly and severally, to pay a sum of Rs.54,697.50 to the complainant which is 75% of the purchase price i.e. Rs.72,930/- of the refrigerator.

12.            As a sequel to above discussion, we partly allow the present complaint with the following directions to the OPs No.1 to 3:-

1. To pay a sum of Rs.54,697.50 to the complainant along with interest @ 9% per annum (simple interest) w.e.f. filing of the complaint till its realization subject to the return of the refrigerator by the complainant to the OPs.
2. To pay an amount of Rs.5,000/- to the complainant on account of mental agony and harassment.
3. To pay an amount of Rs.5,500/- as litigation charges.

 

13.            The OPs No.1 to 3 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall also be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, 2019 against the OPs No.1 to 3. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

 Announced on: 05.02.2024

 

 

        Dr. Barhm Parkash Yadav      Dr.Sushma Garg              Satpal

                  Member                      Member                      President

 

Note: Each and every page of this order has been duly signed by me.

 

                                          Satpal

                                        President

 

 

                                     

 

 

 

C.C. No. 288 of 2020

Present:             Sh. Ashok Kumar, Advocate for the complainant.

                        Sh. Puneet Tuli, Advocate for OPs No.1 & 2.

                        OP No.3 ex-parte vide order dated         12.11.2020.

                                       

                       Arguments heard. Vide a separate order of even date, the present complaint is hereby partly allowed against the OPs No.1 to 3 with costs.

         A copy of the order be sent to the parties free of costs and the file be consigned to the record room after due compliance.

Dt.05.02.2024

 

 

        Dr. Barhm Parkash Yadav     Dr.Sushma Garg           Satpal

              Member                          Member                   President