Delhi

North East

CC/104/2015

Jaswinder Singh - Complainant(s)

Versus

M/s Ekta Electronics - Opp.Party(s)

29 Jan 2019

ORDER

  DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.104/15

 

In the matter of:

	Jasvinder Singh, S/o Shri. Atma Singh D-26/1, Gali No. 8 New Govind Pura, Krishna Nagar Gandhi Nagar, Delhi-110051	Complainant
	Versus
1         2       3           4         5	M/s Ekta Electronics 54, Khureji Khas Delhi Main Road, Delhi -110051   Priya Money Point X/1460 Gali No. 4, Rajgarh Colony Delhi-110031   Kool Care Services C-17A Mandawali Opp. Navneetin Apartment Patparganj, Plot No.51, I.P. Extn. Delhi-110092   Whirlpool of India Ltd. A-12/B-1 F-5, Industrial Area Okhla New Delhi-110020     M/s Whirlpool of India Ltd. Whirlpool House Plot No- 40, Sector- 44 Gurgaon-122002 (HR)	Opposite Parties

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION      :

24.03.2015 29.01.2019 29.01.2019

 

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

 Order passed by Ms. Sonica Mehrotra, Member

 

 

ORDER

1. Brief facts, shorn of unnecessary detail are that the complainant had purchased Whirlpool Refrigerator of capacity 215 Ltr model no DC230 5S/ 1392725122018357 manufactured by OP4 & OP5 from OP1 vide invoice no 404 dated 23.02.2014 for a sum of Rs. 15,900/- inclusive of vat against which the complainant had made down payment of Rs. 5,900/- in cash to OP1 and balance Rs.10,000/- was financed through OP2 finance Company against 11 EMIs of Rs.1,263/- each payable by complainant to OP2 25.03.2014 onwards. However, on delivery of said fridge on 23.02.2014, when the complainant unpacked the same at his residence, he noticed a big dent on its front door and noisy compressor for which the complainant immediately informed OP1 which asked the complainant to call up OP4 & OP5 on their help line since the said fridge was in warranty period. The complainant called up the help line no of OP4 & OP5 on 24.02.2014 and lodged the complaint after which the service engineer came and checked the fridge and took certain photographs of dented door but paid no heed to the request of the complainant to replace the faulty fridge. The complainant thereafter called up the help line no again several times on 26.02.2014, 03.03.2014, 04.03.2014 and 11.09.2014 when he was given the complaint no DL0914006686 on call made on 11.09.2014 when OP4 & OP5 sent their service engineer to check the said fridge and the said engineer gave the assurance of replacement. The complainant further submitted that he received two invoices from OP1 regarding purchase of fridge in question –invoice no 404 dated 23.02.2014 / delivery challan no 064 dated 23.02.2014 and invoice no 413 dated 25.03.2014/ delivery challan no 2905 dated 25.03.2014 with different model and serial numbers questioning the intention of OP1. The complainant had lodged written complaint to OP1, OP3 (service centre of OP4 & 5) and OP4 & OP5 on 11.03.2014 for replacement of his fridge or refund of the price but OPs failed to do either. Lastly the complainant, feeling aggrieved due to inaction by the OPs was constrained to file the present complaint before this forum praying for issuance of direction against the OPs to refund the price of the fridge i.e. Rs15,900/- along with compensation of Rs.1,50,000/- for mental agony and harassment payable by OP1, OP4 & OP5 and Rs. 20,000/- as cost of litigation.
2. Complainant has attached copy of invoice no 404 dated 23.02.2014 and corresponding delivery challan no 064 dated 23.02.2014 mentioning that balance amount of Rs. 10,000/- shall be payable in 11 EMIs of Rs. 1,263/- each with due date 25.03.2014, bill issued by OP2 for EMI payment of Rs1,263/- X 11 = 13,893/- raised on complainant, copy of invoice no 413 dated 25.03.2014 and corresponding delivery challan no 2905 dated 25.03.2014 mentioning HP to OP2 and EMI of Rs.1,263/- of 11 terms with due date 25.03.2014, copy of warranty card dated 25.03.2014 issued by OP1 for model no 1392715900 (second invoice), copy of photographs of door of fridge, copy of passbook entry of savings account of complainant held with Bank of Baroda highlighting EMI payments of Rs.1,263/- made to OP2 and copies of hand written complaints dated 11.03.2014 by complainant to OP1, OP3 and OP4 & OP5 for replacement / refund with respect to the defected fridge.
3. Notices were issued to OPs. OP1, OP2 & OP3 were served on 05.10.2014, 12.10.2014 and 01.10.2015 respectively however none appeared on their behalf and they were proceeded against ex-parte  vide order date 23.12.2015.
4. OP4 & OP5 filed its written statement in which it took the preliminary objection that though the complainant had purchased the said fridge on 23.02.2014 but against his allegations of defects therein, there were no complaints lodged on the help line of OP4 & OP5 nor were there any job cards placed on record with the complaint and the complainant had only filed letter dated 11.03.2014 mentioning cooling problem. The OPs further urged that  as per general procedure of the industry any complaint of any dent, scratch and missing parts is to be lodged within seven days of purchase after expiry of which period, such complaints are not entertained and therefore since the complainant had reported the defects after expiry of the said period, they were not considered. The OPs also contended that the warranty of the fridge starts from the date of purchase and not from the date of use and complainant was trying to mislead the forum by filing two bills of same model and has intentionally not filed the copy of warranty card along with terms of warranty. Lastly, OPs submitted that the said fridge in question did not have functional defect nor had the OPs denied to provide after sale service as assured under the term of warranty and therefore there was no deficiency of service and unfair trade practice on the part of the OPs and prayed for dismissal of the complaint with costs.
5. Rejoinder to the written statement was filed by the complainant in rebuttal to defence taken by OPs in which complainant submitted that the said fridge was under guarantee / warranty and the OPs were legally bound to replace or repair the same but failed to do so and reiterated and reaffirmed his averments in the complaint.
6.  Evidence by way affidavit was filed by the complainant wherein he exhibited the documents filed alongwith the complaint as exhibits CW-1/1 to CW-1/10. Despite opportunity granted to OP4 & OP5, it failed to file its evidence and therefore its right to file same was closed vide order dated 08.04.2016.
7. Written arguments were file on behalf of complainant as well as by OP4 & OP5 in reinforcement of their respective grievance / defence. The matter was reserved for orders by erstwhile bench on 17.05.2017 but was relisted on 03.11.2017 for 07.05.2017 when notice was issued specifically to OP1 for demanding explanation on issuance of two invoices dated 23.02.2014 and 25.03.2014 to the complainant. However, the notice was returned with postal remarks “refused” which is deemed service under section 28 (3A) of CPA which is ample proof that OP1 was deliberately evading appearance before this Forum.
8. We have heard oral arguments advanced by counsels for complainant and OP4 & OP5 and none could throw light on dual billing / two invoices. We have applied our judicial mind and have given our anxious consideration to the documentary evidence placed on record. It is not in dispute that the subject fridge was manufactured by OP4 & OP5 and was purchased by complainant from OP1. However, regarding the defects therein OP4 & OP5 denied having any knowledge before September 2014 whereas the turn around time for rectification / replacement was seven days from the date of purchase the complainant had written letter to OP4 & OP5 on 11.03.2014 through speed post detailing the defects in the fridge of low cooling, noisy compressor and dented door and series of calls made to its customer care but to no avail despite several visits by their technician and assurances of replacement. We are not doubtful that the subject fridge was purchased on 23.02.2014 since the EMI was starting from March 2014 payable to OP2 and complaints regarding defects in the fridge were made by complainant to OP1, OP3 & OP4 & OP5 on 11.03.2014. However, on realizing that OP1 had not issued a warranty card to the complainant, the complainant asked for the same and OP1 issued another invoice dated 25.03.2014 and the warranty card also bears the same date with seal of OP1 and this invoice mention the model number also unlike the previous one i.e. 23.02.2014. This in our opinion is unfair trade practice under section 2 (1) (r) of Consumer Protection Act on the part of OP1 and the complainant cannot be made to suffer for such anomaly / malpractice. This issue is therefore decided in favour of the complainant against OP1.
9. No relief is prayed against OP2 which is finance company and no role has been brought out by the complainant of OP3 and therefore no orders are passed against OP2 & OP3 who have been erroneously arraigned.
10.  As regards OP4 & OP5, we are not convinced with the line of arguments / defence adopted to circumvent the grievance of the complaint since the complainant had from the correspondence placed on record, apprised the OPs about the defect in the fridge but no repair/rectification report by way of job card has been placed on record by the OPs in their defence of having rendered after sales service to the complainant qua the said fridge. We therefore find the act of omission on the part of OP4 & OP5 as deficiency of service and dereliction of duty towards a bona-fide consumer / customer. The Hon’ble National Commission in the judgment of R. Kesava Kumar v. Sonovision and ors I (2016) CPJ 675 (NC) upheld the order of district forum and UP SCDRC in consumer complaint case of defective fridge in granting refund of the defective fridge alongwith compensation as reasonable on the complainant returning the said fridge to the opposite party.
11. We therefore, following the settled preposition of law laid down by Hon’ble National Commission in the afore cited judgment, allow the present complaint against OP1, OP4 & OP5 as liability of dealer and manufacturer is joint and several / co- extensive as laid down by Hon’ble National Commission in judgment of Prabhat Kumar Sinha v. Nitesh Kumar III (2016) CPJ 239 (NC). We therefore direct OP1, OP4 & OP5 jointly and severally to refund the cost of the defective fridge i.e. Rs. 15,900/- to the complainant. We further direct OP1, OP4 & OP5 jointly and severally to pay a sum of           Rs. 5,000/- as compensation for mental agony and harassment suffered by complainant and Rs. 2,000/- towards cost of litigation.
12.  Let the order be complied with by OP1, OP4 & OP5 within 30 days  from the date of receipt of copy of this order.
13.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
14.   File be consigned to record room.
15.   Announced on  29.01.2019

 

(N.K. Sharma)      President

(Sonica Mehrotra)  Member