Haryana

Ambala

CC/311/2021

Sushil Bhatia - Complainant(s)

Versus

M/s Saugaat Electronics - Opp.Party(s)

Subhagya Liberhan

02 Jan 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.		:		311 of 2021
Date of Institution	:		28.09.2021
Date of decision	:		02.01.2024

Sushil Bhatia aged 61 years son of Late Sh.J.C.Bhatia, resident of # 926, Urban Estate, Sector-09, Ambala City-134003.

          ……. Complainant.

                                                Versus

1. M/s Saugaat Electronics through Rajesh, Shop No.93, Prem Nagar, Main Road, Ambala City-134003 (Email: saugaatcity@gmail.com).
2. Bosch Home Appliances, BSH Household Appliances Manufacturing Pvt. Ltd. Through Sh.S.C.Srinivasan, CFO & Executive Director, Arena House, 2nd floor, Road No. 12, MIDC, Andheri (East), Mumbai-40093

     Email: Service.in@bosch-home.com

….…. Opposite Parties.

 Before:       Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:       Shri Rohit Dhiman, Advocate, counsel for the complainant

                     None for OP No.1

                   Shri Rajeev Sachdeva, Advocate, counsel for the OP No.2.   

Order:        Smt. Neena Sandhu, President.

1.                Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To refund Rs.51,000/- being cost of the Refrigerator alongwith interest @18% p.a.
2. To pay Rs.50,000/- for causing harassment, agony and mental torture, financial loss to the complainant alongwith interest @18% p.a.
3. To pay Rs.33,000/- as litigation expenses
4. Any relief which this Commission deems fit, in view the facts and circumstances of the complaint. 

 

2.             Brief facts of this case are that OP No.1 is a duly appointed authorized Distributor of OP No.2 and is responsible for Sale of Electronic products manufactured by OP No.2. The complainant purchased one Frost Free Refrigerator KDN53X1301 454L having S.N.98041001407 vide Invoice No.SE/208/2020-21 dated 22/07/2020 for Rs.51,000/-, from OP No.1. At the time of purchase, the OP No.1 had assured the complainant about the quality and performance of the refrigerator and had further assured that the same carries five year warranty. To the surprise of the complainant, the refrigerator started giving problem within few weeks of its purchase and the complainant approached the OP No.1 and also made complaints on the Toll free consumer complaint number of the OP No.2 and had also been corresponding via Email. The mechanics/engineers of OP No.2 visited many times at the residence of the complainant but without any success and just after a week of their visit the refrigerator again started giving trouble in cooling and subsequently started making noise also. It appears that there is a manufacturing defect in the refrigerator and that’s why the mechanics/engineers failed to rectify the defect. In the month of August/September, 2021, the refrigerator again stopped cooling and started making noise and the complainant again made complaints through Email duly acknowledged by the OP No.2 but nobody visited the residence of the complainant to rectify the defect despite repeated emails. The  complainant requested the OPs to replace the defective refrigerator as their mechanics/engineers have failed to rectify the defect for the last one year but they have refused to replace the defective refrigerator, rather have even stopped to attend the complaints made via Email and simply extended false assurances that their mechanics/engineers shall be shortly visiting the residence of the complainant to redress the complaint. The complainant has suffered huge loss due to defective refrigerator as every eatable item stored in the refrigerator spoiled within hours. Due to act and conduct of the Ops, the Complainant has been harassed and humiliated besides the Complainant has suffered financial loss. Hence, the present complaint.
3.           Upon notice, OP No.1, appeared and filed written version wherein while admitting the factual matrix of the case regarding purchase of the said refrigerator in question by the complainant and that at the time of purchase, OP No.1 had assured the complainant about the quality and performance of the Refrigerator and had further assured that the refrigerator carriers One Year Comprehensive Warranty and 10 Years Compressor Warranty, it has been stated that the complainant never approached the OP No.1 for the complaint of the refrigerator. The Complainant never came to OP No.1 for the Replacement of the Refrigerator.  OP No.1 is a Selling Agent of the Company and Service & Warranty of the product is to be provided by the Company's Authorized Service Centre i.e. Ultimate Solutions - # 100, The Mall, Ambala Cantt. The Product Warranty and After Sale Service/ Replacement of Product/ damages or refund of the cost of the product are to be borne by the Company i.e. OP No.2 or through its Authorized Service Centre i.e. Ultimate Solutions-#100, The Mall, Ambala Cantt. Rest of the averments of the complainant were denied by OP No.1 and prayed for dismissal of the present complaint.
4.           Upon notice, OP No.2, appeared and filed written version wherein it has been stated that  the complaint is a vexatious litigation, filed with malafide intention to arm-twist OP No. 2; it is a settled position of law that the complainant is required to discharge the burden of proof for establishing deficiency in service as has been held by the Hon’ble Supreme court in Ravneet Singh Bagga v. KLM Royal Dutch Airlines, (2000) 1 SCC 66: in terms of section 38(1)(c) of the CP Act, if the complaint alleges a defect in the goods by sending it to the laboratory, which fact has been reiterated by the Hon’ble National Commission in the case of Classic automobiles v. Lila Nand Mishra & Ors (2010) CPJ 235;  no case has been made out for unfair trade practices etc. On merits, it has been stated that the parties are bound by the contractual terms established by the Warranty Card. The warranty was only for a period of one year from 22 July 2020 to 21 July 2021.  The Product was installed to the satisfaction of the complainant on 22 July 2020. The complainant registered several service requests through telephonic conversations with O.P. No. 2 bearing Complaint No. 477479260 dated 09.09.2021, Complaint No. 477472624 dated 13.07.2021, Complaint No. 477480063 dated 16.09.2021, Complaint No. 477473362 dated 19.07.2021, Complaint No. 477429904 dated 19.08.2020, Complaint No. 477449462 dated 23.12.2020, Complaint No. 477481123 dated 24.09.2021, Complaint No. 477478412 dated 31.08.2021 and Complaint No. 477480209 dated 20.09.2021 alleging that the Product has cooling issues. The OP No.2 in furtherance of their exemplary after-sales services promptly responded to all the service request and sent technicians to inspect the refrigerator. After each visit to the complainant's premises, the service executive identified that there was no defect in the Product and the Product was indeed functioning appropriately. OP No.2, being manufacturer, in good faith and without any prejudice to terms of the Warranty Card, extended services free of charge even after the expiry of warranty on 21 July 2022. However, after the last visit to complainant's premises by the technician pursuant to the complaint dated 16.09.2021, the issue was escalated to a senior technician. However, the customer refused to entertain the senior technician to his premises for further inspection of the Product. There are no inherent manufacturing defects in the Product as it has been appropriately working without any issues for a period and all service requests that had been raised with respect to the functioning of the Product were non-existent and resolved by the technician by making minor adjustments. Rest of the averments of the complainant were denied by the OP No.2 and prayed for dismissal of the present complaint with exemplary costs.
5.           Learned counsel for the complainant tendered affidavit of the complainant as Annexure CA alongwith documents as Annexure C-1 to C-9 and closed the evidence on behalf of the complainant.  However, it is pertinent to mention here that the OP No.1 failed to lead any evidence despite availing various opportunities, therefore, evidence of the OP No.1 has been closed by the order of this Commission dated 05.10.2023. Learned counsel for OP No.2 tendered affidavit of Manish Kakkar, Authorized Representative of OP No.2 company, BSH Household Appliances Manufacturing Pvt. Ltd. as Annexure OP-2/A alongwith documents Annexure OP-2/1 to OP-2/4 and closed evidence on behalf of  the OP No.2.
6.           None put in appearance on the day of arguments on behalf of OP No.1 and therefore, we have heard the learned counsel for the complainant and learned counsel for OP No.2 and have also carefully gone through the case file.
7.           Learned counsel for the complainant submitted that by neither rectifying the defect in the refrigerator in question during warranty period or even thereafter nor refunding the price. The OPs have committed deficiency in providing service to the complainant and also indulged into unfair trade practice.  
8.           On the contrary, the learned counsel for the OP No.2 submitted that whatever defect was reported, the same rectified to the satisfaction of the complainant. Complainant has not placed on record any evidence in the shape of expert report to prove that the refrigerator in question is suffering from any manufacturing defect.
9.           Annexure C-1 is the invoice dated 22.07.2020, whereby complainant purchased the refrigerator in question by paying an amount of Rs.51,000/- from the OP No.1, manufactured by OP No.2.  From warranty terms and conditions Annexure OP2/1, it is clearly coming out that the said refrigerator carried standard warranty of one year with 10 years extended warranty on compressor. It is the specific case of the complainant that the said refrigerator started giving problem of cooling and noise within the standard warranty period i.e. within a period of one year of its purchase. Even OP No.2 in its written version has candidly admitted that complainant has registered first complaint in the matter on 13.07.2021 i.e. within a period of one year regarding cooling issues in the said refrigerator. Furthermore, OP No.2 has also admitted that the complainant registered several requests and lodged complaints regarding cooling issues in the said refrigerator as under:-

1.      Complaint No. 477479260 dated 09.09.2021,
2.      Complaint No. 477472624 dated 13.07.2021,
3.      Complaint No. 477480063 dated 16.09.2021,
4.      Complaint No. 477473362 dated 19.07.2021,
5.      Complaint No. 477429904 dated 19.08.2020,
6.      Complaint No. 477449462 dated 23.12.2020,
7. Complaint No. 477481123 dated 24.09.2021,
8. Complaint No. 477478412 dated 31.08.2021 and
9.      Complaint No. 477480209 dated 20.09.2021

          It is further evident from emails dated 20.07.2021, Annexure C-4, 09.08.2021, Annexure C-5, 15.09.2021, Annexure C-6, 08.09.2021, Annexure C-7 that the complainant kept on requesting the OPs to rectify the defects in the said refrigerator. Even from the job cards, Annexure C-8 dated 20.07.2021, 29.10.2022, Annexure C-9 it is evident that the defect of cooling of refrigerator and noise in the same was reported by the complainant and the complainant has put specific remarks on these job cards that the problem in the said refrigerator exists since purchase. Thus, by placing on record the said job cards, emails and also the complaints lodged by the complainant which has been admitted by the OPs, the complainant has been able to prove his case that the refrigerator in question was suffering from defect, which could not be rectified by the OPs and as such under these circumstances, an adverse inference could easily be drawn that the said refrigerator suffers from manufacturing defect.  The refrigerator in question was purchased in the year 2020 and till 2022  (even during pendency of this complaint) the complainant has been running behind the OPs for defect rectifications therein. One can well imagine the dilemma of the complainant who had purchased the refrigerator for his comfort but from the year of its                    purchase he cannot use the same and is running behind the OPs for its defect rectification. 

10.           As far as plea taken by the OPs that the complainant has failed to place on record any expert report to prove manufacturing defect in the refrigerator in question, it may be stated here that expert report is required in the cases, where the parties except leveling allegations against each other, has no evidence to prove that there is any defect in the product or that the product remained continuously defective even after attempts made to repair it. However, in the present case from the record, it is coming out that till 2022 (even during pendency of this complaint), the complainant was running behind the OPs for defect rectification in the said refrigerator. Thus, it a fit case, wherein this Commission has no hesitation to order refund of the amount paid to the complainant alongwith interest and compensation.  
11.           In view of the aforesaid discussion, we hereby allow the present complaint and direct the OPs, in the following manner:-
    1. To refund the amount of Rs.51,000/- to the complainant, alongwith interest @6% p.a. from 22.07.2020, (the date of purchase), till its realization.
    2. To pay Rs.3,000/-, as compensation for the mental agony and physical harassment suffered by the complainant.
    3. To pay Rs.2,000/-, as litigation expenses.  

                   It is further directed that OPs No.1 & 2 shall comply with the aforesaid directions, jointly and severally, within the period of 45 days, from the date of receipt of the certified copy of the order, failing which the OPs No.1 & 2 shall pay interest @8% per annum on the awarded amount, from the date of default, till realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced:- 02.01.2024

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President