Punjab

Ludhiana

CC/19/544

Jatinder Pal - Complainant(s)

Versus

M/s KYK India - Opp.Party(s)

Rakesh Gandhi Adv.

18 Apr 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 544 dated 26.11.2019.                                                       Date of decision: 18.04.2023. 

 

Jatinder Pal Singh aged 51 years son of Shri Jagdish Singh, resident of 315-D, BRS Nagar, Ludhiana-141001.                                                                                                                                                                  ..…Complainant

                                                Versus

1. M/s. KYK India, 611, Ring Road Mall, Sector-3, Rohini, New Dellhi-110085 through its Director/Auth. Official Akshit Aggarwal S/o. Sh. Nishant Pandey.
2. M/s. Bio Health Ignizer (Authorized Representative & Service Provider of respondent No.1), 17-B, Char Khamba Road, Opp. Milan Cloth House, Model Town, Ludhiana-141002 through its owner/Proprietor/Partner/Auth. Officia.                                                                                                                …..Opposite parties

Complaint Under Section 12 of the Consumer Protection Act, 1986.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :         Dr. Rakesh Gandhi, Advocate.

For OPs                         :         Sh. R.K. Chand, Advocate.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                In brief, the facts of the case are that the complainant KYK Higen 2+ Hydrogen Generator (hereinafter called as product) from opposite party No.1 vide bill No.KYK/GST/215/07.05.2018 for Rs.1,53,000/-. Opposite party No.2 is the authorized representative and service provider of opposite party No.1. At the time of purchase of the product, the opposite parties assured that the product is based on latest technology and is free from any defect. Even opposite party No.1 failed to provide its manual and warranty/guarantee card along with machine despite assurance nor it has supplied till date. The complainant stated that just one month after the installation of the product in the month of June 2018 a major fault occurred in the machine. The representative of the opposite parties failed to rectify the same and admitted that there is manufacturing defect in the machine and it was sent back to Delhi office for replacement. The replaced machine was installed after 40-50 days. Again after installation of the replaced machine, it broke down on 05.09.2018 resulting in non-operation of machine for many weeks due to defect in the product. The complainant requested the opposite parties on 17.09.2018 to return his hard earnings and to take back the said machine and also through email dated 28.09.2018 reminder the opposite parties to their commitment that machine will be taken back and money will be refunded if the complainant was not satisfied. Even in October/November 2018, machine remained non-functional for sizable period due to continuous breakdown fault, imperfection and shortcoming in the machine. On 06.11.2018, the opposite parties fitted defective fungus infected filters in the machine and as such, the complainant was cheated when faulty/defective filters were replaced by flawed/infective & used filters. On being caught, the service provider felt sorry for his deeds and replaced it with newer one. The complainant further stated that due to negligence, the service providers of the opposite parties lost the filter control chip of the machine during this period of machine/filter transportation to & from service centre. To make up, the filter control chip of demo machine of service centre was fitted in the machine which gave wrong high reading of usage but this was never replaced/rectified despite repeated reminders. This anomaly in displayed filter reading was conveyed to opposite parties that the sensor chip control system might have crashed. However, in between there were many instances when there was breakdown/fault/imperfection and shortcoming in different machine part lime in pressure gauge, flow meter, auto cut etc. leading to breakdown of machine which does not allow the complainant to use the machine for 7 to 10 days multiple times. The complainant further stated that on 12.06.2019, due to leakage fault there was breakdown of machine and since then the same could not be used. The opposite parties did not bother despite information. Thus, just from the day of initial installation, the product could not give perfect performance due to manufacturing defect and most of time, it was non-functional despite various complaints/mails and the opposite parties failed to provide services and rectify the defects. Now the product is out of order and non-functioning due to manufacturing defect and despite promise of the opposite parties, they did not refund the billing amount. As such, there is deficiency in service and unfair trade practice on the part of the opposite parties due to which the complainant has suffered undue harassment and humiliation for which he is entitled to compensation. The complainant sent a legal notice dated 24.10.2019 to the opposite parties but to no effect. Hence this complaint whereby the complainant prayed for issuing direction to the opposite parties to pick the defective product and refund the amount of Rs.1,53,000/- along with interest and to pay cost of litigation as Rs.20,00/- and also to pay compensation of Rs.2,00,000/-.

2.                Upon notice, the opposite parties appeared and filed written statement by taking preliminary objections and assailed the complaint on the ground of maintainability of the complaint; lack of territorial jurisdiction; gross misuse of the process of law. The opposite parties submitted that opposite party No.2 several times visited the premises of the complainant for servicing of the machine/product in question but every time it was the complainant who refused to avail those services and not just to cover his own wrongs has moved the instant case to extort money from them. Even when the issue raised by the complainant, every time the opposite parties had provided their services and resolved the same. The product requires services only which the complainant is avoiding since long. The opposite parties further submitted that it has been more than 6 months and as per the policy “the filter needs to be replaced after 6 months, 12 months which is not happened in the case in hand which is again a shortcoming at the end of the complainant himself. The complainant cannot take advantage of his own wrong. Even if any defect persists in the machine or malfunctioning that is only due to the reason that the complainant himself fails to adhere to usage norms and precaution provided in the manual itself. The opposite parties stated that they are still ready and undertake to repair the machine/product in question.

                   On merits, the opposite parties reiterated the crux mentioned in the preliminary objections. The Opposite parties alleged that they have not replaced the machine due to alleged manufacturing defect rather the same was replaced with intention to avoid any inconvenience faced by the complainant. The opposite parties stated that there is a specific term “that the goods once sold cannot be returned or exchanged.” It also reflects in the warranty registration form as well i.e. “if the repair of the product is not possible, we will replace the product.” The opposite parties stated that it was possible to repair the machine as there was issue in the filter which can be resolved as the proper service to be given by opposite party No.1. However, it was the complainant who failed to avail the services of the opposite parties.  The opposite parties denied any deficiency in service and in the end, a prayer for dismissal of the complaint has been made.

3.                The complainant filed replication reiterating the facts mentioned in the complaint and controverted those mentioned in the written statement filed by the opposite parties.

4.                In evidence, the complainant tendered his affidavit as Ex. CA and reiterated his averments of the complaint. The complainant also placed on record documents i.e. Ex. C1 is the copy of tax invoice dated 07.05.2018, Ex. C2 to Ex. C6, Ex. C8 are the emails correspondence, Ex. C7  and Ex. C9 are the copies of whatsapp chatting,  Ex. C10 is the legal notice dated 25.10.2019, Ex. C11 to Ex. C14 are the postal receipts, Ex. C15 is the copy of certificate dated 29.10.2021 of Rupinder Singh and closed the evidence.

5.                The opposite parties failed to tender any evidence despite grant of sufficient opportunities including last opportunities and as such, their evidence was closed by order vide order dated 22.03.2023.

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, replication affidavit and annexed documents and written statement produced on record by both the parties.    

7.                Admittedly, the complainant purchased KYK Higen 2+ Hydrogen Generator i.e. the product in question from the opposite parties vide bill dated 07.05.2018 Ex. C1 for a sum of Rs.1,53,000/-. Perusal of documents shows that the opposite parties have given guaranty for a period of five years from the date of its purchase. The product was commissioned and installed in the house of the complainant. However, in June 2018, it developed a snag and it was replaced by the opposite parties and reinstalled on 21.06.2018 but the replaced machine did not function properly and effectively and the complainant has brought this fact into  the notice of the opposite parties through series of emails. The complainant raised his grievance through whatsapp chatting on 14.08.2018, 06.10.2018 (Ex. C9), 06.09.2018, 13.09.2018 (Ex. C7). Although the opposite parties were servicing the parts but still its performance was not up to the standard that one could expect in the given set of circumstances.

8.                The counsel for the complainant contended that persistent  defect and malfunctioning is only due to the reason that the complainant had failed to adhere to the usage norms and precautions enlisted in the manual. It is only due to the negligence of the complainant that even the replaced machine has performed below par. From the sequel of aforesaid events, it can be seen that the faulty machine once replaced and the repair of the defective parts has also been carried out by the opposite parties as and when it was brought to the notice of the opposite parties. The opposite parties have also mentioned in para No.6 of the reply that they are still ready to undertake the repair of the product in question. In the given set of facts and circumstances, a prayer for refund of amount of Rs.1,53,000/- on the part of the  complainants appears to be unreasonable since the complainant has utilized the services of the opposite parties since its purchase. The counsel for the complainant contended that the product is lying dysfunctional since 17.05.2019 and can be readily met if the opposite parties are ordered to carry out the repair comprehensively and scientifically.

9.                In C.N. Ananthram Vs M/s. Fiat India Ltd. and others 2010 (4) CPJ 56 passed by the Hon’ble Supreme Court of India whereby the complainant sought replacement or full refund of the amount along with interest for “defect in the engine of the vehicle”. The Hon’ble Supreme Court has held that the replacement of the defective engine with new engine would suffice. Further, in Tata Motors Ltd. Vs Sharad and others in 2016 (SCC) NCDRC 1600 whereby it has been held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi that whether the vehicle purchased by the complainant suffered certain defects and also used for considerable kilometers, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi has held that a new vehicle cannot be replaced and defective part of old vehicle has to be replaced.  In the given set of facts and circumstances, it would be just and appropriate if the opposite parties are directed to repair the product in question free of costs within 30 days from the date of receipt of copy of order and also to pay composite costs of Rs.7000/- to the complainant.

10.              As a result of above discussion, the complaint is partly allowed with direction to the opposite parties to repair the product in question i.e. KYK Higen 2+ Hydrogen Generator free of costs within 30 days from the date of receipt of copy of order. The opposite parties shall further pay a composite costs of Rs.7,000/- (Rupees Seven Thousand only) to the complainant within 30 days from the date of receipt of copy of order. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

11.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Jaswinder Singh)                      (Sanjeev Batra)        

                    Member                                      President

 

Announced in Open Commission.

Dated:18.04.2023.

Gobind Ram.

 

 

Jatinder Pal Singh Vs M/s. KYK India                          CC/19/544

Present:       Dr. Rakesh Gandhi, Advocate for complainant.

                   Sh. R.K. Chand, Advocate for OPs.

 

                   Arguments heard. Vide separate detailed order of today, the complaint is partly allowed with direction to the opposite parties to repair the product in question i.e. KYK Higen 2+ Hydrogen Generator free of costs within 30 days from the date of receipt of copy of order. The opposite parties shall further pay a composite costs of Rs.7,000/- (Rupees Seven Thousand only) to the complainant within 30 days from the date of receipt of copy of order. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

                    (Jaswinder Singh)                      (Sanjeev Batra)        

                    Member                                      President

 

Announced in Open Commission.

Dated:18.04.2023.

Gobind Ram.