Delhi

North East

CC/144/2016

Mr. Aziz Ullah - Complainant(s)

Versus

M/s Technoking Home Appliance & Anr. - Opp.Party(s)

20 May 2019

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. 144/16

 

In the matter of:

	Sh Aziz Ullah S/o Late Sh Azim Ullah R/o 4/4, A-Block Dilshad Colony Delhi-110095	Complainant
	Versus
1           2	M/s Technoking Home Appliances At A-69, Hardev Puri 100 Feet Road Shahdara, Delhi-110093   Godrej & Boyce Mfg. Co. Ltd. Godrej Bhavan, Sher Shah Suri Marg Okhla, New Delhi-110065	Opposite Parties

 

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

02.06.2016 20.05.2019 20.05.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Facts of the case necessary for the disposal of the complaint are that the complainant had purchased a Godrej refrigerator RTEON 231 C 1.4 manufactured by OP2 from OP1 dealer on 08.03.2016 for a sum of Rs. 16,400/- paid through his HDFC debit card against bill no. R5910. The said fridge had 10 years warranty thereon but did not function properly for even a month of purchase and stopped cooling / freezing the items kept inside for which the complainant lodged a complaint with OP2 on 05.04.2016 vide reference no. D0504136499 and OP2 sent an employee on the same date at 7:00 pm to check the fridge who told the complainant that the gas has to be changed to which complainant had refused since he had purchased the fridge barely a month ago and instead repeatedly asked for change of the fridge on 06.04.2016, 15.04.2016 & 21.04.2016 to the OP2 when complainant spoke to its various officials who assured the complainant that they shall change the fridge as early as possible but did not do so causing great mental and physical agony to the complainant and his family. Lastly, on 22.05.2016, two persons from OP2’s company came to the house of complainant alongwith a new fridge in a tempo and complainant asked them to wait for a minute before letting them in but they just vanished from the site. Therefore, alleging deficiency in service on the part of OPs causing hardship and trauma to the complainant, the complainant was constrained to file the present complaint against the OPs praying for issuance of direction for refund of the price of the fridge i.e. Rs. 16,400/- alongwith interest thereon @ 18% p.a. and compensation of Rs. 1,00,000/- for mental torture, pain and agony, Rs. 21,000/- towards cost of litigation and Rs. 50,000/- as compensation.
2. Complainant has attached copy of the purchase invoice of the fridge.
3. Notice was issued to the OPs 06.06.2016 which was served on both OPs on 15.06.2016. None appeared on behalf of OP1 and was therefore proceeded against ex-parte vide order dated 09.09.2016. OP2 filed its written statement wherein it took the preliminary objection of the subject refrigerator suffering from no manufacturing defect as having undergone various quality control checks before being sold to the complainant and warranty of 10 years is conditional. OP2 admitted that the subject fridge was reported of suffering from gas leakage complaint by the complainant on 05.04.2016 which was confirmed on inspection and further submitted that there was a technical problem in the fridge and also admitted that within 10 days, another complaint regarding the same problem was received from the complainant on 15.04.2016 again admitting it being a technical problem. OP2 submitted that the complainant did not agree for the offer made by the OP2 for rectification of the problem and has not filed any mechanical / technical report to substantiate the claim and prayed for the dismissal of the complaint as no deficiency of service made out against the OP2.
4. Rejoinder in rebuttal to the defence taken by the OP2 was filed by the complainant in which the complainant submitted that the complainant faced difficulties with the  said fridge suffered from the date of purchase as it did not function properly even for a month in terms of cooling / freezing and despite several complaints lodged by the complainant, OP2 did not resolve the issue  despite being responsible for the same and fail to replace the said fridge which did not function properly for month despite having warranty of 10 yeas thereon and prayed for relief claim.
5. Evidence by way of affidavit was filed by the complainant and OP2.
6. Written arguments were filed by complainant and OP2 in reassertion / reemphasis of their respective grievance / defence. To the arguments taken by OP2 that its expert technician had visited the premises of complainant on 15.04.2016, the complainant denied of any such visit or any resolution of his problem given by the OP2.
7. At the advanced stage of proceedings, an attempt was made for amicable settlement in the matter which was posted before National Lok Adalat where OP2 offered refund of the value of the fridge but the complainant desired to get Rs. 30,000/- as full and final settlement and due a dead lock, the settlement failed.
8. 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.
9. It is not in dispute that the fridge in question was purchased by the complainant from OP2 on 08.03.2016 manufactured by OP2 which had started giving problem from the very beginning of its purchase as admitted by OP2 in its written statement also. The OP2 has further admitted to repeated gas problem in the said fridge and that the subject machine was suffering from "technical problem”.  The written statement of OP2 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 OP2 did not even mention what exact rectification of the problem was offered by them as a good will gesture to which the complainant did not agree. OP2 offered  settlement by way of refund of the value of said fridge almost after delay of two and half years of filing of the present complaint which was an offer too little too late. 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 the 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 (Del), 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. We are not convinced with the line of arguments / defence adopted by OP2 to circumvent the grievance of the complaint since the complainant had from the correspondence mentioned in the complaint duly confirmed by the OP2 in its written statement too, apprised the OP2 about the defect in the fridge but no repair/rectification report by way of job card has been placed on record by the OP2 in their defence of having rendered after sales service to the complainant qua the said fridge. We therefore find the act of omission on the part of OP2 as deficiency of service and dereliction of duty towards a bona-fide consumer / customer. The Hon’ble National Commission in the judgment of R. Kesava Kumar v. Sonovision and ors I (2016) CPJ 675 (NC) upheld the order of district forum and UP SCDRC in consumer complaint case of defective fridge in granting refund of the defective fridge alongwith compensation as reasonable on the complainant returning the said fridge to the opposite party.
10. As regards the issue of apportionment of liability, the Hon’ble Supreme Court in landmark judgment of Jose Philip Mampillil Vs. Premier Automobiles Ltd. AIR 2004 SC 1529 held that for manufacturing defect, manufacturer and dealer are jointly and severally liable. The Hon’ble National Commission has also held this view in catena of judgment viz Prabhat Kumar Sinha Vs Nitish Kumar III (2016) CPJ 239 (NC) in which the Hon’ble National Commission held that the petitioner being the seller of a defective computer under warranty was under obligation either to rectify the defects or to replace the computer or refund the consideration amount received. The Hon’ble National Commission in Ashoke Khan Vs. Abdul Karim (2006) 1 CPR 173 (NC ) held that for wrong committed by agent or dealer, consumer is entitled to have reimbursement from manufacturer and dealer as their liability is joint and several. So far as the liability of the manufacturing company is concerned, it is the issue between the manufacturing company and the dealer for which the respondent cannot be made to suffer. The Hon’ble National Commission in Kirloskar Oil Engineers Ltd Vs M. Lokesh 2003 (1) CPR 192 (NC) upheld the concurrent findings of Hon’ble State Commission and District Forum holding manufacturer and dealer jointly and severally liable for deficiency of service in failure to rectify the defects in the generators manufactured by OP. The Hon’ble National Commission in the judgment of JNP Agro Systems Pvt Ltd Vs K.K.Jose 2001 (3) CPR 53 (NC) held that complainant could not be made to suffer for problems between dealer and manufacturer. Therefore in light of the settled proposition of law, the liability towards the complainant of dealer and manufacturer is joint and several. An agent who sales a product is duty bound to ensure its quality and if the product is found defective, agent shall be vicariously liable for the loss caused to the purchaser, alongwith the manufacturer of the product. This view was held by Hon’ble National Commission in Emerging India Real Assets Pvt Ltd. and ANR Vs. Kamer Chand and Anr in RP no 765/16 decided on 30.03.2016. In view of settled proposition of law, as discussed exhaustively in the aforementioned judgment of Hon’ble Supreme Court and Hon’ble National Commission, liability of both OPs is joint and several and coextensive qua the complainant. This issue is therefore decided in favour of complainant holding both OPs jointly and severally liable for deficiency of service.
11. We therefore, following the settled preposition of law laid down by Hon’ble National Commission in the afore cited judgments, allow the present complaint against OP1 & OP2 as liability of dealer and manufacturer is joint and several / co- extensive.
12. 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 OP2 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. We therefore, direct OP1 & OP2 jointly and severally to refund the cost of the fridge i.e. Rs. 16,400/- alongwith interest @ 9% thereon from the date of filing of the complaint till realization. We further award a sum of Rs. 5,000/- as compensation for mental torture and agony faced by the complainant and  Rs. 3,000/- towards cost of litigation payable by both OPs jointly and severally to the complainant. The said fridge shall be returned to the dealer i.e. OP1 by the complainant on satisfaction of the decree as per the law settled by Hon'ble National Commission in this regard. Let the order be complied by OPs within 30 days from the date of receipt of this order.          
13.  Let a copy of this order be sent to each party free of cost as per Regulation 21 of the Consumer Protection Regulations, 2005.
14.   File be consigned to record room.
15.   Announced on  20.05.2019

 

(N.K. Sharma)      President

(Sonica Mehrotra)  Member