Haryana

Kaithal

8/21

Vikas Sharma - Complainant(s)

Versus

M/s Janta Stores - Opp.Party(s)

Sh.Rajesh Malik

12 Jul 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KAITHAL.

                                                 Complaint Case No.8/2021.

                                                 Date of institution: 04.01.2021.

                                                 Date of decision:12.07.2023.

Vikas Sharma age 43 years, S/o Sh. Rishiram, resident of Narwana, Tehsil Narwana, Distt. Jind.

 

                                                                        …Complainant.

                        Versus

1. M/s. Janta Stores, Main Bazaar, Kaithal through its proprietor, Tehsil & Distt. Kaithal.
2. Bajaj Electrical Ltd., 45/47 Veer Nariman Road, Mumbai-400001 (Marketed & Manufacturer).

….OPs.

Complaint under Section 35 of the Consumer Protection Act, 2019.

 

CORAM:     SMT. NEELAM KASHYAP, PRESIDENT.

                SMT. SUMAN RANA, MEMBER.

                SH. SUNIL MOHAN TRIKHA, MEMBER.

 

Present:     Sh. Manoj Ichhpilani, Advocate, for the complainant.   

                OPs exparte.

               

ORDER

NEELAM KASHYAP, PRESIDENT

        Vikas Sharma-Complainant has filed this complaint under Section 35 of Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the OPs.  

                    In nutshell, the facts of present case are that the complainant purchased a microwave oven 25 CG (Morphy Richards) vide invoice No.17094 dt. 01.11.2016 from the OP No.1 against the warranty of two years.  After the purchase of above-said microwave oven, first time in the month of January, 2017 the above-said microwave started malfunctioning and many times its working was not proper.  The complainant approached the OP No.1 and complained about the non-functioning of above-said microwave oven but despite repair, the defects were not removed from the said microwave oven.  The above-said problem has come again and again in the month of July, 2018, September, 2019 and after that, it remains continuously.  The complainant approached the OPs several times to repair or replace the said defective microwave oven but the OPs did not redress the grievances of complainant.  So, it is a clear cut case of deficiency in service on the part of OPs and prayed for acceptance of complaint.   

2.             Upon notice, the OPs initially appeared and contested the complaint by filing their written statements separately.  OP No.1 filed the written statement raising preliminary objections with regard to maintainability; that as per warranty card, only the company or manufacturer is liable for any defect and not the answering OP.  On merits, the objections raised in the complaint are rebutted and so, prayed for dismissal of complaint.

3.             OP No.2 filed the written statement raising preliminary objections that the product in question was purchased on 01.11.2016 with two years warranty, which expired on 01.11.2018; that in the month of October, 2020 the complainant raised a complaint with the OP No.2, stating that malfunctioning and defect in the product.  Thereupon the OP No.2 technical service visited the complainant’s house and told the complainant that the product is out of warranty period and informed the complainant that the product is out of warranty period.  The complainant refused to pay for the technical service/technical assistance, the OP No.2 did not pursue with the complaint and closed the complaint stating that the customer is refusing to pay charges for the technical service/technical assistance after expiry of warranty period.  There is no deficiency in service on the part of answering OP.  On merits, the objections raised in the complaint are rebutted and so, prayed for dismissal of complaint.

                After filing written statement, both the OPs did not appear and opted to proceed against exparte vide order dt. 11.05.2023 passed by this Commission.  

4.             The complainant tendered in evidence affidavits Ex.CW1/A and Ex.CW2/A alongwith documents Annexure-C1 to Annexure-C3 and thereafter, closed the evidence.     

5.             We have heard the learned counsel for complainant and perused the case file carefully and minutely.

6.             Ld. counsel for the complainant argued that the complainant purchased a microwave oven 25 CG (Morphy Richards) vide invoice No.17094 dt. 01.11.2016 from the OP No.1 against the warranty of two years.  After the purchase of above-said microwave oven, first time in the month of January, 2017 the above-said microwave started malfunctioning and many times its working was not proper.  The complainant approached the OP No.1 and complained about the non-functioning of above-said microwave oven but despite repair, the defects were not removed from the said microwave oven.  The above-said problem has come again and again in the month of July, 2018, September, 2019 and after that, it remains continuously.  The complainant approached the OPs several times to repair or replace the said defective microwave oven but the OPs did not redress the grievances of complainant.  So, it is a clear cut case of deficiency in service on the part of OPs.

7.             It is clear from the Annexure-C1 that the microwave oven in question was purchased by the complainant on 01.11.2016.  We have perused the terms and conditions of microwave as per Mark-A from which it is clear that there was two years warranty of microwave in question which means that the warranty of microwave oven expired on 01.11.2018.  The OP No.2 has taken the stand in the written statement that in the month of October, 2020 the complainant raised a complaint with the OP No.2, stating that malfunctioning and defect in the product.  Thereupon the OP No.2 technical service visited the complainant’s house and told the complainant that the product is out of warranty period and informed the complainant that the product is out of warranty period.  To rebut the said contention of OPs, ld. counsel for the complainant has vehemently contended that the case of complainant is that the defects of microwave oven were not removed by the OPs in the year 2018 and 2019 and it remained continuously and when they approached the Ops in the year 2020 rather than they did not remove the defects from the microwave oven and he has drawn our attention towards the message as per Annexure-C3 wherein it is mentioned that “Your Bajaj Electricals Calls ID KUN1210200022149316-1 has been removed”, whereas the defects were not removed by the OPs.  In this regard, ld. counsel for the complainant has placed reliance upon the case law titled as Indochem Electronic & another Vs. Addl. Collector of Customs, A.P. decided by Hon’ble Supreme Court on 24.02.2006 bearing Appeal (Civil) No.173 of 2006, wherein it has been held as under:-

“By reason of its own conduct, the Appellant made representation to the respondent that despite expiry of period of warranty, maintenance of the system to the Respondent’s satisfaction was its contractual obligation.  The contract in view of such representation on the part of the Respondent does not come to an end.  The contract, if looked in the light of the surrounding circumstances evidently pointed to the intention of the parties and as gathered from the contract itself that the representation of the Appellant should have been treated as warranty for an expended period.  Even in a case where the goods are accepted, it is well known, the buyer will have a remedy for damages for the breach of it.”

Similarly, in the present case, the defects of microwave oven were not removed by the OPs in the year 2018 and 2019 and it remained continuously despite expiry of warranty period.  On the other hand, after filing written statement, the OPs did not appear and opted to proceed against exparte.  So, the evidence produced by the complainant goes unrebutted and unchallenged against the OPs.           

8.             As a result of aforesaid discussion as-well-as in the interest of justice, we direct the OPs jointly and severally to repair the microwave oven in question and to replace the defective parts, if any, free of cost to the satisfaction of complainant within 30 days from today.  There is no order as to costs.  Hence, the present complaint is accepted partly. 

9.             In default of compliance of this order, proceedings against OPs shall be initiated under Section 72 of Consumer Protection Act, 2019 as non-compliance of court order shall be punishable with imprisonment for a term which shall not be less than one month, but which may extend to three years, or with fine, which shall not be less than twenty five thousand rupees, but which may extend to one lakh rupees, or with both.  A copy of this order be sent to both the parties free of cost.  File be consigned to the record room after due compliance.     

Announced in open court:

Dt.:12.07.2023.

                                                                (Neelam Kashyap)

                                                                President.

 

(Sunil Mohan Trikha),           (Suman Rana),          

Member.                            Member.

 

Typed by: Sanjay Kumar, S.G.