Punjab

StateCommission

A/2/2019

M/s LG Electronics India Pvt. Ltd - Complainant(s)

Versus

Mr. Rohit Chopra and Ors. - Opp.Party(s)

Arjun Grover

15 May 2019

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB, CHANDIGARH.

First Appeal No.02 of 2019

    Date of institution  :     02.01.2019

    Reserved on           :     10.04.2019

    Date of decision     :     15.05.2019

 

          M/s LG Electronics India Pvt. Ltd., having office at Plot No.194-195, 2^nd Floor, Phase-2, Industrial Area, Chandigarh through its Branch Service Manager, Sh. Amit Rathore.

                                                              ….Appellant/OP No.1

Versus

1.      Mr. Rohit Chopra and Rajat Chopra s/o Sh. Pawan Chopra, R/o H.No.NB266, Laxmi Pura, Jalandhar City, Jalandhar,Punjab-144011.

Email: advocaterajatchopra@yahoo.com

                                                 ….Respondent No.1/Complainant

 

2.      M/s Global Services having office at 486-L, Model Town, Back side Geeta Mandir, Jalandhar-144001 through its partner Sh. Gurminder Pal Singh Sidhu.

3.      M/s Aarco Electronics, Gem House, G.T. Road, Jalandhar through its proprietor Sh. Ashish Mahindru.

                                        ….Proforma Respondents/OP No.2 & 3

 

First Appeal against the order dated 13.11.2018 of the District Consumer Disputes Redressal Forum, Jalandhar.

 

Quorum:- 

     Hon’ble Mr. Justice Paramjeet Singh Dhaliwal, President

                    Mrs. Kiran Sibal, Member.

 

Present:-

          For the appellant       :    Sh. Arjun Grover, Advocate

          For the respondents :    Ex-parte

MRS. KIRAN SIBAL, MEMBER

          The instant appeal has been preferred by the appellant/opposite party No.1 challenging therein order dated 13.11.2018 passed by District Consumer Disputes Redressal Forum, Jalandhar (for short, “District Forum”) whereby the complaint filed by the respondent No.1/complainant was partly accepted and opposite parties (in short “OPs”) were directed to refund the price of the product i.e. Rs.44,200/- along with extended warranty amount of Rs.4485/- with interest @ 12% per annum from the date of filing complaint, till realization and further directed to pay compensation of Rs.20,000/- for mental tension and harassment and Rs.5000/- as litigation expenses within one month from the date of receipt of the copy of order. 

 2.     It would be apposite to mention that hereinafter the parties will be referred, as have been arrayed before the District Forum.

Facts of the Complaint

3.      Brief facts, as averred in the complaint, are that the complainant purchased LG Washing Machine from OP No.3, vide Invoice No.Aej/13-14/1059 dated 10.06.2013 for an amount of Rs.44,200/-. The said product is under warranty, vide extended warranty policy/AMC No.020734 for a period till 31.08.2018 for which complainant paid a separate amount of Rs.4484/- in cash. On 19^th September, 2017 he registered a complaint with OP bearing complaint No.RNP170919049453 for non working of the product.  In response to which a Service Engineer was sent at the place of the complainant. Upon inspection, it was diagnosed that there was a power issue in the washing machine and accordingly the whole socket was replaced with a new one. Even after the replacement of the sockets, machine was not in working condition, as such, the matter was again reported to the executive of the LG online on 05.10.2017 bearing No.RNP171004009274. The service engineer, after the preliminary checking of the machine reported that there was a problem with the PCB of the machine, which needed to be replaced and within 2 to 3 days, the machine would be set in working condition, free of cost as the product is under warranty, which is not disputed.  Till date product of the complainant is not in a working condition and his complaint dated 05.10.2017 has been closed by the LG Service Centre without repairing the machine and without providing any information to him. No signature of the complainant was ever taken on the job sheet nor any satisfaction note was given to him. He again called the LG customer care on 15.10.2017 enquiring about the address of the service centre from where he came to know that LG company was ready to initiate the refund/replacement of the product, but regarding this no information was given to him. The act and conduct of the OP, amounts to deficiency in service and unfair trade practice, therefore complainant sought the following reliefs:-

i)        to refund the product amount of Rs.44,200/- along with Rs.4485/-,  the amount extended warranty with interest.

ii)       to pay Rs.40,000/-, as compensation, for harassment to the complainant;

iii)      to pay Rs.11,000/- as counsel fee to the complainant.

4.      Upon notice, OP No.1 contested the complaint by filing written reply, whereas after service OP No.2 and 3 failed to appear and were proceeded against ex parte vide order dated 03.11.2017. 

5.      OP No.1 in its written reply raised preliminary objections that the complaint is not maintainable. The complainant had filed a complaint with the sole motive of pressurising and harassing the answering OP to submit to the unreasonable and mischievous demands of the complainant. It was further submitted that the complainant does not fall under the definition of “Consumer” and even complainant No.1, Rohit Chopra, had no concern with the present complaint and as such, it is liable to be dismissed. The complainants had filed this complaint on the false and concocted facts, whereas the true and correct facts are that the complainant Rohit Chopra, who was not a   consumer nor a buyer of the product as mentioned in the complaint had earlier also filed a complaint under the Consumer Protection Act for defect in LG LED, which is still pending. It was further submitted that there is no defect in the Washing Machine of the complainant and even then, the OP was ready to rectify the same if it falls in the warranty. All other allegations as made in the complaint were categorically denied and OP No.1 prayed for dismissal of the complaint.

 Finding of the District Forum

6.      Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, partly accepted the complaint, vide impugned order. Hence this appeal.

Contentions of the Parties

7.      We have heard learned counsel for the appellant and have also gone through the record of the case.

8.      Learned counsel for the appellant vehemently contended that the District Forum failed to appreciate the law laid down by the Hon’ble Apex Court in 2010 SCC 1014, that a litigant who attempts to pollute the streams of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final. District Forum also failed to appreciate the fact that if there would have been any manufacturing defect in the washing machine then it could not have functioned for even a single day. However, in the present case the washing machine functioned without any issue in the same for more than 4.5 years since its purchase. It was further contended that whenever the appellant was contacted by the respondent No.1/complainant, the appellant immediately sent its service engineer in order to facilitate and redress his grievance. The respondent/complainant is in the habit of instituting frivolous complaints as earlier also the respondent No.1/complainant had filed a consumer complaint No.499/2016 on 23.12.2016 before the District Forum, Jalandhar which was dismissed vide order dated 24.04.2018 for want of jurisdiction. The fault in the washing machine is persisting due to the own wrongful conduct of the complainant himself as the appellant had contacted respondent No.1/complainant many times in order to facilitate him with new PCB free of cost and even today the appellant is ready to accommodate him. However, he is misusing the process of law and is trying to drive extra bucks out of the present complaint. Averring on similar lines as stated in the appeal, learned counsel for the appellant prayed for allowing the appeal.

Consideration of Contentions

9.      We have given our thoughtful consideration to the contentions raised by the learned counsel for the appellant.

10.    Admittedly, the complainant purchased LG Washing Machine from OP No.3, vide Invoice No.Aej/13-14/1059 dated 10.06.2013 for an amount of Rs.44,200/- as Annexure A-3/Ex.C-1.  As per the policy of the appellant-Company, the said washing machine carried two year warranty period as Annexure A-4. It is a case of the appellant that respondent No.1 after using the washing machine for more than 4.5 years i.e. much after the expiry of the warranty period, on 31.08.2017, purchased an AMC from the appellant by paying Rs.4484/- as Annexure A-5/Ex.C-8. The said AMC was valid from 01.09.2017 till 31.08.2018 and was purchased in the name of Mr. Rohit Chopra in the year 2017, however, the washing machine was brought in the name of Mr. Rajat Chopra in the year 2013. The objection raised by the appellant that respondent No.1-Mr. Rohit Chopra had no concern with the complaint as he had not purchased the product in question, so he was neither a consumer nor a buyer of the product has already been rightly dealt with the District Forum. Mr. Rohit Chopra and Rajat Chopra are sons of Sh. Pawan Chopra who are residing in the same house and the product is being used by all the family members. The relationship of Mr. Rohit Chopra with the purchaser finds evidence in the form of the affidavit submitted by him and is on the record. Therefore, we do not wish to interfere with the finding of the District Forum in this regard.  

11.    Now the contentious question for consideration before us is whether the product sold had a manufacturing defect for which the appellants have been made liable to refund the price of the washing machine along with the extended warranty amount with interest. In this regard, it would be relevant to reproduce the relevant portion of the impugned order wherein the finding regarding the manufacturing defect is given and reads as under:-

“So far as the question of any defect in the said Washing Machine is related, the same is not obviously proved by the complainant by bringing on the file any report of the mechanic, but the allegations of the complainant as alleged in the complaint that the Job Sheet Ex.C-2 issued by the OP, despite that the Washing Machine is not working properly and even the service engineer of the OP visited to the house of the complainant, who checked the said Washing Machine, despite that the same is not still working, we find whenever any defect in the product has been brought to the notice of the OP and OP issued the Job Sheet as well as got checked the said product from its service engineer, then ball goes to the courtyard of the OP to dispel the said onus and accordingly, now onus shifted on the OP to prove that there is no defect in the Washing Machine, but in order to dispel the said onus, the OP itself failed to examine the service engineer, who visited the house of the complainant and inspected the said Washing Machine. So, from this angle, if we see the case of the complainant, then there remains no doubt that the Washing Machine, so purchased by the complainant from OP having some major defect, which is not curable and due to that reason, the service engineer of the OP despite visit to the house of the complainant failed to rectify the same. Whenever, there is any manufacturing defect in the product, then OPs are liable to replace the said product and accordingly, in this case, the complainant is entitled for the relief”

 

From the perusal of the above finding of the District Forum, it appears the District Forum has entirely shifted the burden and onus on the OPs to prove the alleged defect in the product. It is pertinent to mention here that the machine was purchased on 10.06.2013 and was functioning very well for 4.5 years after purchase. Thereafter, vide extended warranty policy/AMC No.020734 for which complainant paid Rs.4484/- in cash and the AMC was valid from 01.09.2017 till 31.08.2018. After a few days of buying the AMC, the complainant had started raising the alleged defects firstly on 19.09.2017 and thereafter on 05.10.2017. On both the occasions, the appellant sent its Service Engineer to inspect the product and to rectify the same. A copy of the job sheet dated 19.09.2017 as Annexure A-6 bears the signature of the complainant and it is mentioned that the machine was functioning properly to the satisfaction of the complainant. When the complainant again contacted the appellant on 05.10.2017 regarding some issue in the washing machine, the Service Engineer was sent and after inspecting the product diagnosed that the PCB of the washing machine needed replacement. It is the case of the OPs that the complainant was duly apprised that the appellant would require atleast 20 days time to arrange the PCB since the washing machine was of 2013 model and was outdated. The appellant was able to arrange the PCB after almost 25 days but the complainant denied to get the new PCB installed in the washing machine. From these facts, it cannot be said that the appellant had not discharged its duty in sending the service engineer and arranging to replace the PCB in the said machine which would have served the purpose. Hence, we do not find any merit in the finding given by the District Forum that the OPs failed to prove that there is no defect in the washing machine and that the OPs itself failed to examine the Service Engineer who visited the house of the complainant. As far as the question of manufacturing defect as alleged and established by the District Forum is concerned, we are of the view that the said defective product would not have functioned for even a single day from the date of purchase i.e. 10.06.2013 had there been any manufacturing defect in it. But the said machine had however worked for 4.5 years without any issues and even the complainant had never pointed out any defect   prior to 19.09.2017 i.e. after the purchase of the Annual Maintenance Contract. Therefore, we do not find any merit with this plea raised by the complainant and observation of the District Forum.

12.    Now we would like to discuss the quantum of compensation that has been awarded by the District Forum. In the instant case, while holding the appellant deficient in service by providing a defective product to the complainant, the Fora has directed the appellant to refund the price of the product i.e. Rs.44,200/- along with extended warranty amount of Rs.4485/- with interest @ 12% per annum along with other compensation so awarded. Learned counsel for the appellant has contended before us that this awarded amount is on the higher side and is also against the depreciation policy of the appellant-company. He drew our attention towards the depreciation policy of the company which is reproduced as under:-

“Depreciation Policy

Period	REF/AC/MWO/VC/WPAP/CTV/FPDTV/Hecto/CAV(Excluding DVD Player)		WM/DW/HotelTV/Mini PC/Car Audio		MNT/Projector/Security Systems/Commercialmonitor/Signage		DVDPlayer/GSM/Chromebase-PC/NPC/PhotoPrinter/PC with or Without monitor
(Months)	Depreci.%	Refund %	Depreci.%	Refund %	Depreci.%	Refund %	Depreci.%	Refund %
0-12	0%	100%	0%	100%	0%	100%	0%	100%
13-24	20%	80%					50%	50%
25-36	45%	55%	45%	55%			70%	30%
37-48	65%	35%	65%	35%	65%	35%	100%	0%
49-60	85%	15%	85%	15%	85%	15%
61-72
>72	100%	0%	100%	0%	100%	0%

 

Policy

• Applicable for sets which are not repairable, having repeat failure or for which functioned spares are not available.
• In case customer does not agrees for replacement, refund to be given after apply depreciation.
• All product to undergo depreciation from the Date of purchase.
• In Case Bill is not available with customer then he has to provide a affidavit (format Attached) and DP of the model is considered as per Purchase month.
• For replacement cases: Customer has to pay the difference amount between New product DP (current equivalent model) with that of depreciated value of his old set.

Scope

• Applicable for all product under out of Warranty/Extended Warranty/AMC.”

13.    In lieu of the terms and conditions of the depreciation policy, the same would apply to the said product in this case. Since the washing machine was purchased on 10.06.2013 and the directions for refund of the entire price of the machine was awarded vide impugned order dated 13.11.2018, we deem it appropriate that the depreciation value of the machine i.e. the depreciation value would be taken as 85% (49 to 60 months period) is to be taken into consideration and as such, the order of the District Forum is liable to be modified. However, the complainant is entitled to the refund of the AMC amount as the product was not repaired to his satisfaction.

14.    Sequel to the above discussion, the appeal is partly accepted and the order of the District Forum is modified with the following directions:-

(i)      to refund an amount of Rs.6,630/- as 15% of the refund value after deducting 85% depreciation as per the policy of the company.

(ii)      to refund the amount of Rs.4485/- along with 8% interest from the date of filing of the complaint paid as Annual Maintenance Contract charges by the complainant.

(iii)     to pay Rs.10,000/-, as lumpsum compensation, for the mental agony and harassment suffered by the complainant and towards litigation expenses costs.

15.    The appellant/opposite party No.1 had deposited a sum of Rs.25,000/- at the time of filing of the appeal. It also deposited another amount of Rs.16,000/- in compliance with order dated 07.01.2019. Both these amounts, along with interest which has accrued thereon, if any, shall be remitted by the registry to the District Forum forthwith. The parties may approach the District Forum for the release of the above amounts as per the above order and the District Forum may pass the appropriate order in this regard after the expiry of limitation period in accordance with law.

 

                             (JUSTICE PARAMJEET SINGH DHALIWAL)

                                                          PRESIDENT

 

 

                                                (MRS. KIRAN SIBAL)

                                                         MEMBER 

         

May 15, 2019                                               

SK/-