Punjab

Ludhiana

CC/21/291

Sukhwinder Singh - Complainant(s)

Versus

M/s Rehan Home Appliances - Opp.Party(s)

Complainant in person

02 Feb 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 291 dated 01.06.2021.                                                        Date of decision: 02.02.2023.

 

Sukhminder Singh aged about 51 years son of Shri Nachattar Singh, resident of Village Atiana, PS Sudhar, Tehsil Raikot, District Ludhiana.                                                                                                                  ..…Complainant

                                                Versus

M/s. Rehan Home Appliances, Ludhiana-Malerkotla Road, Near Alamgir Sahib, Ludhiana, through its Partner/Proprietor.

                                                                                       …..Opposite party

Complaint Under Section 35 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Sudagar Singh, Advocate.

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

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                 In brief, the facts of the complaint are that on 06.05.2021, the complainant purchased one Air conditioner make Hitachi 1.50 ton from the opposite party vide invoice No.INV-2326 for a sum of Rs.33,000/- in cash. AT the time of purchase, the opposite party assured that the produce is perfectly fine. After making the payment, opposite party told the complainant to go to home with assurance that his employees shall accompany the product and install the same in the premises of the complainant which was accordingly installed by the employees of the opposite party. After the installation of the AC, the complainant found that the same was not up to mark and looks like an old AC upon which he called the opposite party at his mobile No.76963-38450 and asked him that the AC is old one and also complained that the same is not working properly. Then the opposite party assured the complainant to replace the AC with new one. The complainant again contacted the opposite party number of times on his personal number 81464-64489 but opposite party flatly refused to take back the AC and also hurled threats with dire consequences. The act and conduct of the opposite party amounts to deficiency in service on its part which has caused mental harassment, agony to the complainant for which the complainant is entitled for Rs.1,00,000/- as compensation and refund of amount of Rs.33,000/-. In the end, the complainant has prayed for issuing directions to the opposite party to refund Rs.33,000/- along with interest @24% per annum and compensation of Rs.1,00,000/-.

2.                Upon notice, the opposite party appeared and filed written statement by assailing the complaint on the ground of maintainability, the complainant is stopped by his act and conduct from filing the said complaint and the complaint is barred under Section 26 of the Consumer Protection Act. The opposite party alleged that in fact he is running business of sale and purchase of liquidation material and used to purchase liquidation materials from Amazon etc. The complainant visited the shop of the complainant and purchased the said AC on market value of which was about Rs.53,000/- but the ACT in question was sold for Rs.33,000/- only as the same was liquidation item. The opposite party further stated that as per invoice No.INV2326 dated 06.05.2021, no GST was charged from the complainant as the AC was liquidation item. The complainant duly checked the AC before purchase and took the delivery of the said AC without box and carry the same in his own car. Moreover, the complainant has got installed the AC of his own. The complainant was well aware of the fact that the AC is liquidation item and that is why he had purchased the AC without box. The opposite party further stated that the liquidation material are those items which had minor scratches or dents during transit and companies sold them in bulks and the opposite party is running the business to purchase those items and sod them in the market at very concessional prices. The customers who want to purchase those items in less prices comes in the shop of the opposite party and used to purchase said items at very reasonable prices. The complainant has purchased the said liquidation item at a very reasonable price and now after use of the said item he is trying to return the same. The said liquidation items once sold cannot be returned, however the purchasers can lodge the complaint with the company if any complaint in goods and company can get repair the item if there is any fault.

                    On merits, the opposite party reiterated the crux of averments made in the preliminary objections and has denied any deficiency in service on its part and in the end, has also prayed for dismissal of the complaint.

3.                The complainant has filed rejoinder to the written statement reiterating the facts mentioned in the complaint and controverting those mentioned in the written statement.

4.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of Aadhar card of the complainant, Ex. C2 is the copy of invoice dated 06.05.2021 and closed the evidence.

5.                On the other hand, counsel for opposite party tendered affidavit Ex. RA of Sh. Rohit Saini, Proprietor of the opposite party along with documents Ex. R1 is the copy of invoice dated 06.05.2021 and closed the evidence.

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

7.                The grievance raised by the complainant is that the air conditioner was not up to mark and it looked like an old air conditioner and is not working properly since its installation.

8.                On the other hand, it was contended on behalf of the opposite party that the complainant duly checked the air conditioner before its purchase as he was fully aware that it was a liquidation item being purchased by him only for a sum of Rs.33,000/- against the actual price of Rs.53,000/-. So it cannot be said that the complainant had purchased air conditioner which looks like an old one.

9.                Now the other grievance of the complainant is that the air conditioner was not working since its installation and the product was defective. The complainant was required to lead evidence in this regard that he had immediately approached the opposite party in this regard by making some representation in writing or otherwise. The complainant has further not lead any evidence whether any emails were sent by way of complaint to the opposite party and on receipt of such representations, opposite party did not depute any expert to rectify the defect. So the allegations with regard to malfunctioning of the air conditioner are general in nature. Even no legal notice was served before filing of the present complaint. Even the complainant was required to specify in the complaint itself as what was the nature of the defect and how the alleged deficiency impaired the efficient functioning of the air conditioner. The complainant was required to lead some positive evidence in this regard.

10.              In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India whereby it has been held as under:-

’19.  The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

In the given facts and circumstances, the complainant has failed to prove the deficiency in service on the part of the opposite parties by any cogent and convincing evidence.

11.              As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

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

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                       President         

 

Announced in Open Commission.

Dated:02.02.2023.

Gobind Ram.

Sukhminder Singh Vs M/s. Rehan Home Appliances               CC21/291

Present:       Sh. Sudagar Singh, Advocate counsel for the complainant.

                   Sh. R.K. Chand, Advocate counsel for the OP.

 

                   Arguments heard. Vide separate detailed order of today, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                       Member                     Member                                       President         

 

Announced in Open Commission.

Dated:02.02.2023.

Gobind Ram.