BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
Complaint Case No.219 of 2016.
Date of Instt.: 22.08.2016.
Date of Decision: 22.09.2017.
Neki Ram son of Hanuman, resident of village Pirthala, Tehsil Tohana, District Fatehabad.
..Complainant
Versus
1.M/s Chopra Electronics, Railway Road, Tohona District Fatehabad through its Proprietor.
2.Samsung India Pvt. Ltd. 2nd, 3rd and 4th flour, Tower-C, Vipul TCH, Square, Sector 43, DLF, Golf Course Road Gurgaon.
…Respondents/OPs
Before: Sh.Raghbir Singh, President.
Mrs.Ansuya Bishnoi, Member.
Sh.R.S.Panghal, Member.
Present: Sh.Sant Kumar, Advocate for complainant.
Sh.Yogesh Gupta, Advocate for the respondents.
ORDER
The present complaint under Section 12 of Consumer Protection Act, 1986 has been filed by the complainant with the averments that he had purchased one refrigerator of Samsung Company from the OP on 04.06.2016 vide invoice No.5567 for an amount of Rs.15500/-. It is further averred that at the time of purchasing of the refrigerator it was told by the OP that its capacity is 230 liters and it was assured by the OP that the refrigerator has warranty of five years. It is further averred that when the fridge was brought to his house, it came to his knowledge that the refrigerator is of 192 liters capacity and it was not giving cooling and no ice was prepared. It was also creating noise and motor of the refrigerator used to become off automatically. Therefore the refrigerator was not working properly. Intimation regarding the defect was given to the OP and a mechanic was sent by op 1 to check the fridge. After checking, the mechanic informed that the fridge is out of order and the same will have to be brought to the shop. So the complainant took the fridge to the shop and the OP asked him to take new fridge after one or two days. However in spite of several request made by the complainant the fridge was not replaced by the OP. Thereafter a legal notice was given to the OP by the complainant through his counsel. However no response to the notice was given by OP. It is further submitted that on account of defective fridge sold by the OP the complainant has suffered financial loss, mental agony and physical harassment. Hence this complaint.
2. On notice, the OP No.1 appeared through his counsel and a prayer was made to implead the manufacturer as party. Therefore an amended title was filed and OP no.2 was impleaded as a party who appeared and resisted the claim of the complainant by filing written statement wherein various preliminary objections regarding maintainability, cause of action, territorial jurisdiction etc. were raised. On merits, it is submitted that the complainant never approached the OP No.2 or any of its service centres after installation of the refrigerator. It is further submitted that OP No.2 does its business of selling products with its dealers on principal to principal basis and the OP No.2 has no control in the business activities of the OP No.1. Therefore OP No.2 cannot be held liable for any deficiency on the part of the OP No.1. It is also averred that manufacturing defect cannot be determined on the simplicit and the same needs a proper analysis test report to confirm the same. The complainant has miserably failed to prove the alleged manufacturing defect by any opinion of expert. Other averment, made in the complainant have been denied and a prayer for dismissal of the complaint has been made.
OP No.1 did not file any written statement and was proceeded ex-parte on 15.03.2017.
3. In evidence, the complainant filed his affidavit as Annexure C-1 and documents Annexure C-2 to C-6 and closed his evidence. On the other hand the OP no.2 produced affidavit of Anindya Bose, Deputy G.M. as Annexure R1/A and tendered document as Annexure R-1 and closed its evidence.
4. We have given thoughtful consideration to the arguments advanced by learned counsel for the contesting parties and have also perused the documents placed on record of the case file. A perusal of the complaint reveals that the complainant has levelled two allegations against the OPs i.e. the refrigerator sold to him is having manufacturing defect and secondly in place of 230 liters capacity of the refrigerator the OP No.1 has sold him 192 liters capacity refrigerator. However to prove the allegation that the refrigerator sold to him has manufacturing defect the complainant has not produced any evidence. There is no expert opinion to prove that the unit in question has manufacturing defect. Even there is no job card to prove that the unit has any defect. Even the complainant has failed to produce any evidence that the refrigerator was taken by the complainant to any service centre of the OPs. It is settled proposition of law that onus to prove the manufacturing defect is on the complainant and in absence of expert opinion the manufacturing defect cannot be proved. Therefore we are of the considered opinion that the complainant has miserably failed to prove the manufacturing defect or any other defect in the refrigerator in question. The second allegation is only against the OP No.1 that at the time of selling of the refrigerator OP No.1 had told that the capacity of the refrigerator is 230 liters but the unit was found to be of 192 liters capacity. However this allegation has gone unrebutted as OP No.1 did not file written statement and was proceeded ex-parte. Therefore the above said allegation against OP No.1 stands proved. Therefore we award a compensation of Rs.5000/- against OP No.1 for adopting unfair trade practice. Consequently OP No.1 is directed to pay an amount of Rs.5000/- as compensation and Rs.1500/- as cost of litigation to the complainant within the one month. Order of this Forum be complied within a period of 30 days from the date of receipt of copy of this order. Copy of this order be supplied to both the parties free of cost. File be consigned after due compliance.
Announced in open Forum.
Dated: 22.09.2017.
(Raghbir Singh)
President
(Ansuya Bishnoi) (R.S.Panghal) District Consumer Disputes
Member Member Redressal Forum,Fatehabad
