Delhi

North East

CC/44/2018

Sh. Bharat Bhushan Sharma - Complainant(s)

Versus

M/s Hindustan Distributor - Opp.Party(s)

06 Sep 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. 44/18

 

In the matter of:

	Shri Bharat Bhushan Sharma S/o Shri Joginder Pal Sharma R/o B-1/43, DLF Colony, Dilshad Ext-2 Ghaziabad (UP) 201005	Complainant
	Versus
1.         2.	M/s Hindustan Distributor B-127, 100 Ft, Road, Hardev Puri Shahdara, Delhi-110093   LG Electronics India Pvt Ltd 3rd Floor, Religare Building, Saket District Centre, Sector-6, Pushp Vihar, New Delhi-110017.	Opposite Parties

 

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

27.02.2018 06.09.2019 06.09.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Brief facts of the present case are that the complainant has purchased on LG MW 607 Microwave manufactured by OP2 from OP1 seller on 23.06.2017 vide invoice no HD-1915 for a sum of  Rs. 5,000/- inclusive of VAT. However, the said microwave function only for five-six months and started giving problems in early December when first complaint was lodged by with OP2 customer care on 06.12.2017 but was not attended to. Second complaint was made on 11.12.2017 on which occasion OP2 sent its executive Mr. Kuldeep to attend to the said problem on 12.12.2017 and vide jobsheet prepared on said date, the technician gave remarks of ‘buttons out of order + membrane is deft, part NSP’ and informed the complainant that the parts of the said microwave were not available in the market as production of the said model had been discontinued by OP2 and asked him to wait for some time for availability of parts and asked complainant to speak to OP1 in the interim for solving the problem which when contacted again referred the complainant back to OP2. Finding no assistance either of OPs, complainant had to locate the Concerned Manager and Area Manager  of OP2 and raised his grievance with them but never received any positive feedback till January 2018 despite having shared all the relevant data/ documents pertaining to his case. Therefore, the complainant was constrained to file the present complaint praying for issuance of directions against OPs to either refund the cost of the microwave i.e. Rs. 5,000/- or in the alternate provide him latest model of microwave. Complainant also prayed for compensation payable by of OPs to the tune of Rs. 15,000/- towards mental torture, agony, harassment, disturbance and irreparable loss of time And Rs. 10,000/- towards litigation expense.

Complainant has attached copy of purchase invoice, copy of mobile messages dated 11.12.2017 and 18.12.2017 from OP2 service centre for servicing and copy of jobsheet dated 12.12.2017.

2. Notice was issued to the OPs on 19.03.2018. None appeared on behalf of OP1 despite service effected on 04.04.2018. OP2 in proceeding held on 30.05.2018 made an offer of refund of  Rs. 5,500/- which acceptable to the complainant. Both OPs failed to file written statement within the statutory mandatory period prescribed u/s 13(2) of CPA and therefore their defence struck off vide order dated 13.07.2018.
3. Complainant filed evidence by way affidavit and written argument in reassertion of his grievance against the OPs and stated that the said microwave completely dysfunctional.
4. OP2 filed written argument taking the plea of having offered refund since the part of the microwave was irreparable/ irreplaceable way back on 06.12.2017 at the time of first service but complainant refused to accept the said offer and withheld this fact from the Forum. OP2 further submitted that when the microwave was repaired on 26.06.2017, a minor part shaft was replaced and the set was made ok to the satisfaction of complainant and again on 12.12.2017, when problem arose in the said microwave, OP2 had given an offer which was declined by him. OP2 denied any deficiency in service in as much as it attended each and every complaint of the complainant without any fail / delay and prayed for dismissal of the complaint.
5. We have heard the argument addressed by the both parties and have perused documents placed on record.

Undisputedly, the subject microwave went out of order within six months of purchase in December 2017 and could not be repaired due to non availability of parts owing to discontinuation of manufacture of the said model by OP2. The said microwave was within the warranty period but could not be repaired by OP2 as has been admitted too within warranty period. Hon'ble National Commission in Rellech Bio Chemical Systems Ltd Vs. Amulya Kumar Behara (Dr.) (2007) IV CPJ 388 (NC) held that OP having failed to render service of repairing defective machine during warranty period was deficient in service.Complainant however has not submitted any proof for warranty of the microwave but notwithstanding that, OPs having failed to repair the same to this extent are deficient in service. On going through the record, the complainant has nowhere alleged that the microwave had a manufacturing defect. No additional fact or evidence has been placed on record by the complainant to this effect. Hon'ble National Commission in Ramesh D. Motwani Vs IFB Global India Ltd and Ors II (2017) CPJ 124 (NC) upheld the orders of District Forum Rajkot un-interfered by SCDRC Ahmadabad pertaining to non repair of microwave oven whereby both Forums had directed repair free of cost alongwith compensation in absence of any allegation of manufacturing defect and any proof of warranty of the oven.

6. As regards fastening / apportionment of liability of the seller in such cases, the Hon’ble National Commission in the judgment of Prabhat Kumar Sinha Vs Nitish Kumar III (2016) CPJ 239 (NC) had held that the petitioner being the seller of a defective computer under warranty, in our considered view, was under obligation either to rectify the defects or to replace the computer or refund the consideration amount received. So far as the liability of the manufacturing company is concerned, it is the issue between the manufacturing company and the dealer for which the respondent cannot be made to suffer. The Hon’ble National Commission in Kirloskar Oil Engineers Ltd Vs M. Lokesh 2003 (1) CPR 192 (NC) upheld the concurrent findings of Hon’ble State Commission and District Forum holding manufacturer and dealer jointly and severally liable for deficiency of service in failure to rectify the defects in the generators manufactured by OP. The Hon’ble National Commission in the judgment of JNP Agro Systems Pvt Ltd Vs K.K.Jose 2001 (3) CPR 53 (NC) held that complainant could not be made to suffer for problems between dealer and manufacturer. Therefore in light of the settled proposition of law, the liability towards the complainant of dealer and manufacturer is joint and several.

OP2 has nowhere specifically denied the defects alleged by the complainant in the microwave in question and the defence was limited to having repaired the same on complaint raised and refund offered for non availability of its parts only to wriggle out of its liability. After due appreciation of the facts of the case we are of the considered view that both the OPs are guilty of deficiency of service in having sold a defective microwavewhich did not even last its warranty period and failed to provide after sale service. The Hon’ble National Commission in the judgment of R.Kesava Kumar Vs Sonovision and Ors I (2016) CPJ 675 (NC) had upheld the order passed by the District Forum, not interfered by Hon’ble State Commission Lucknow in case of manufacturing defects in case of fridge in which the District Forum had directed OP to refund the cost of fridge alongwith compensation as reasonable and justified.

From the admission of the complainant, he had used the subject microwave for six months within warranty period from June 2017 till November 2017. The Hon’ble National Commission in the judgment of Godrej Photo-ME Ltd Vs Jaya P. Apachu in FA  No. 723/2003 decided on 24.05.2004 held that the undisputed fact that the machine was with the complainant in working order till few weeks before the end of warranty period and that the complainant had used the machine for almost six months, he could not demand a full refund. The Hon’ble National Commission, therefore held that the order passed by State Commission directing full refund was not right and reduced the quantum to be paid by OP to less than half.

Therefore, relying on the observation and view of the Hon’ble National Commission in such a case where the complainant using defective product for a while cannot claim full refund, we are not inclined to grant full refund of the cost of microwave and direct OP1 and OP2 jointly and severally to refund cost of Rs. 4,000/- to the complainant towards depreciated value of the microwave alongwith compensation of Rs. 2,000/- towards mental torture, agony, harassment, disturbance and irreparable loss of time andRs. 2,000/- towards cost of litigation.

7. Let the order be complied with by OPs within 30 days from the date of receipt of copy of this order.
8. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
9. File be consigned to record room.
10.  Announced on 06.09.2019 

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member