Delhi

North East

CC/136/2015

Sagar Mehra - Complainant(s)

Versus

M/s Samsung India Electronic Ltd - Opp.Party(s)

01 Jun 2018

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.136/15

 

In the matter of:

	Sh. Sagar Mehra S/o Sh. Dalip Mehra R/o 439-E, Gali no.7 Bhola Nath Nagar, Shahdara, Delhi-32.	Complainant
	Versus
1.             2.	M.s Samsung India Electronic Ltd Regd. Office:- A-25, Mohan Cooperative Industrial Area, New Delhi-44. Head Office: 2nd, 3rd, 4th floor Tower-C, Vipul Tech Square, Golf Course Road, Sector -43, Gurgaon-122002, Haryana.   M/s Sargam India Electronic Pvt. Ltd C-52, Preet Vihar, Delhi-32	Opposite Parties

 

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

17.04.2015 24.05.2018 01.06.2018

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Case of the complainant is that he was in need of a refrigerator for which he visited the OP2 outlet on 20.04.2014 when the employees of OP2 suggested the complainant to purchase the refrigerator manufactured by OP1 with an assurance and representation that the same is the best in the market carrying 10 years warranty for machine and compressor and that in case of any defect therein, OP2 shall replace the said fridge immediately. The complainant acting upon and believing the said assurance and representation, purchased the Samsung Ref GV321 Litres model no. FF                           RT-33HDRFASL/TL/2014 and serial no. 030G4PAF101038L for a sum of Rs. 30,700/- against retail invoice/tax invoice no. 07020174673 dated 20.04.2014. The complainant paid Rs. 9900/- at the time of purchase and Rs. 19,800/- through Bajaj Finance and ultimately paid the rest of the balance amount vide bill no. 07020174673 to OP2 against the said fridge. The representative of OP2 delivered the said fridge to the resident of complainant on 20.04.2014 and the mechanic of OP2 installed the said fridge and instructed the complainant to open it the next day. The complainant has stated that he was shocked to open the said fridge on the next day to find that it was not the same selected model and the body of the said fridge was cracked at two places and the fridge was not working properly with problem of low cooling and unusual heating on the external body and even the door of the said fridge was not shutting properly as its rubber was loose. The complainant immediately contacted OP2 complaining about the said defect asking OP2 to replace the defective fridge to which the OP2 told the complainant that he would forward the complaint to OP1. The OP representative visited the residence of the complainant on 21.04.2015 and inspected the said fridge and told the complainant that he would submit the inspection report to OP1 for recommendation of replacement vide request no. 8422715612. Thereafter several visits were made by the representative of OP1 to the residence of the complainant with assurances and promises for replacement of said fridge but no action was taken till March 2015 by OP1. The complainant again contacted OP1 and OP2 in the end of March / beginning April for replacement of the defective fridge but no resolution of his problem was given by either of the OPs. The complainant issue the legal notice to the OPs on 06.04.2015 but the OP despite service did not pay any heed to the same except that on service of notice, a mechanic of OP1 had visited the residence of the complainant on 08.04.2015 with assurance to replace the fridge immediately but to no consequence. Lastly the complainant was constrained to file the present complaint against the OP1 as manufacturer and OP2 as dealer of the said fridge alleging selling of defective goods and failure and negligence to replace the defective fridge amounting to deficiency of service which has caused mental torture, agony inconvenience and hardship to the complainant and prayed to this Forum for issuance of directions to the OPs to replace the defective fridge, to pay a sum of Rs. 50,000/- to the complainant as compensation for mental and physical harassment and Rs. 20,000/- towards litigation expenses.

Complainant has annexed copy of the retail invoice dated 20.04.2014, authorization letter in favour of his mother and legal notice dated 06.04.2015.

2. Notice was issued to the OPs for appearance which was served on both the OPs. However written statement was filed by OP1 and OP2 did not appear and was therefore proceeded ex-parte vide order dated 04.12.2015. In the written statement filed by OP1, the OP1 took the preliminary objection that the complainant adamantly demanded refund / replacement of the said fridge which was denied by OP1 since the issue therein could be resolved by the service provider and not by OP1 which clearly proves that the said fridge was working fine and placed reliance on the judgment of Hon’ble National Commission in Shivprasad Paper Industries Vs Senior Machinery Company I (2006) CPJ 92(NC) in which the Hon’ble NCDRC held that it is settled law and equipment of machinery cannot be ordered to be replaced if it can be repaired. The OP1 further submitted that the complainant disallowed the engineer of the OP1 to repair the said fridge.
3. Rejoinder and evidence by way of affidavit were filed by the complainant in which the complainant stated that the OP1 had deposited cheque no. 578807 dated 29.04.2015 drawn on HSBC Bank for a sum of Rs. 30,700/- in favour of the complainant before the Delhi Government Mediation Centre after filing of the present complaint towards the refund of the said fridge and has annexed the photograph of the said cheque alongwith the technical report dated 08.04.2015 with remarks of the service manager and photographs of the cracks and defects in the said fridge.
4. Evidence by way of affidavit was filed by the OP1 wherein the OP1 admitted the factum of purchase of the said fridge by the complainant from OP2 on 20.04.2014 for a sum of Rs. 30,700/- and also admitted to the first problem arising therein on the very next of purchase. OP1 submitted that on 01.04.2015, its engineer had inspected the said fridge and resolved the issues by giving satisfactory service to the complainant as per T&C of the warranty and alleged that the problem in the said fridge arose due to negligence of the complainant which he cannot be allowed to take advantage of. The OP1 denied any deficiency of service, delay of negligence or violation of terms of warranty policy on its part. The OP1, while contending that the complainant has failed to established any manufacturing defect in the said fridge, placed reliance on the judgment of City Municipal Corporation Vs S.A.Latif Company AIR 2004 Kant 491 in which the court had observed that the defendant had accepted the delivery consciously and to establish that the product had manufacturing defect, the defendant had to refer the machinery for expert opinion. Further OP1 relied upon the judgment of Hon’ble NCDRC in Tata Motors Vs Deepak Goyal in which the Hon’ble NCDRC had reversed the judgment of Hon’ble SCDRC which had observed that the onus to prove that the vehicle does not suffer from manufacturing defects shifts to the manufacturer because the burden instead was on the complainant to show that the vehicle was suffering from manufacturing defect. OP1 relied upon the judgment of Vikram Bajaj Vs Hind Motors (India) Ltd 2009 (II) CLT 670 in which the Hon’ble NCDRC had held that where the complainant has failed to produce any expert opinion / evidence to prove that the goods is suffering from manufacturing or latent defect, the consumer complaint is liable to be dismissed. Lastly the OP1 submitted that there was no deficiency of service, negligence on the part of OP1 giving rise to any cause of action for claiming damages by the complainant against OP1 and relied upon the judgment of Hon’ble Supreme Court in Interglobe Aviation Ltd Vs N. Satchidanand (2011) 7 SCC 463 in this regard.
5. Written arguments were filed by both the parties reiterating their respective grievance and defence in the pleadings.

We have heard the rival contentions of both the parties and have carefully and thoroughly perused the documentary evidence placed on record by both the parties in support of their respective claim/defence.

It is not in dispute that the fridge in question was purchased by the complainant from OP2 on 20.04.2014 manufactured by OP1 which had started giving problem from the very beginning of its purchase as admitted by OP1 in its written statement also. The written statement of OP1 is an evasive denial without any cogent or substantive defence/explanation given therein countering the specific allegation of defects pointed out by the complainant in the complaint. The OP1 did not even mention that they had already offered a settlement amount of refund of the value of said fridge almost 5 months before filing of the said written statement to the complainant after filing of the present complaint and it is apparent that OP1 was trying to take refuge under the judgment cited by OP1 in its written statement to wriggle out of its liability towards the complainant with respect to the said fridge. The photographs of the said fridge also speak volume of the defaced/defective nature of the fridge. The Hon’ble National Commission in Expo Machinery Ltd Vs G.S. Pal 1996 (II)CPJ 45 had rejected the contention of the OP of complainant not producing expert opinion to prove that the fridge was defective and had directed manufacturer and dealer to replace the fridge with fresh guarantee for one year since they had failed to attend to the machine during guarantee period. In the case of Godrej Boyce Manufacturing Co. Ltd Vs Amar Singh Jain (1993) I CPR 47 (Dell), the Hon’ble SCDRC Delhi, had upheld the judgment of District Forum extending the warranty period of defective fridge to three years since the fridge was found defective before the expiry of the warranty period and the purchaser was claiming a new unit before expiry of the warranty period.

In light of the documents placed on record and arguments forwarded by both the parties, we find force in the case of the complainant that indeed the fridge in question was suffering from manufacturing defects and the OP1 failed to resolve the issue despite the fridge being covered under warranty which amounts to deficiency in service and dereliction of duty towards its consumer i.e. complainant herein. The fact cannot be ignored that the OP1 was willfully concealing the offer of settlement / cheque of Rs. 30,700/- in the name of the complainant which was offered by the OP1 in April 2015 itself but was declined by the complainant since he had been harassed by OP1 for one year since the time of purchase. We therefore, direct OP1 as the manufacturer of the said refrigerator to replace the defective fridge of the complainant with a brand new fridge of the same capacity with proper and fresh warranty to the complainant. We further direct OP1 and OP2 jointly and severally to pay a sum of Rs. 15,000/- as compensation for mental and physical harassment and Rs. 5,000/- as cost of litigation to the complainant. Let the order be complied by OP1 & OP2 within 30 days from the date of receipt of copy of this order.

6.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
7.   File be consigned to record room.
8.   Announced on 01.06.2018

 

(N.K. Sharma)      President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member