Delhi

North East

CC/44/2022

Smt. Neelam Dwivedi - Complainant(s)

Versus

M/s Whirlpool of India Ltd. - Opp.Party(s)

17 Oct 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

Complaint Case No. 44/22

 

 

 

 

In the matter of:

 

		Smt. Neelam Dwivedi W/o Sh. SanjeevDwivedi R/o C-174/B, St. No. 5, New Usmanpur, Jain Nagar, Shastri Park, Delhi-110053		Complainant
		Versus
	1.         2.	M/s Whirlpool of India Ltd. Head office Address:- Whirlpool House, Plot No. 40, Sector-44, Gurugram, 122003, Haryana   M/s Rohan Electronics Through its Proprietor, R/o B99, Kh. No. 1/9/1, Main Road, Pusta 1, New Usmanpur, Delhi-110053		Opposite Parties
			DATE OF INSTITUTION:         JUDGMENT RESERVED ON:                           DATE OF ORDER:		02.03.22 28.03.23 17.10.23

 

CORAM:

Surinder Kumar Sharma, President

Anil Kumar Bamba, Member

Adarsh Nain, Member

ORDER

Ms. Adarsh Nain, Member

 

The Complainant has filed the present complaint under Section 35 of the Consumer protection Act, 2019 against the Opposite Parties 1 & 2 i.e. M/s Whirlpool of India Ltd., the manufacturer and M/s Rohan Electronics, the seller respectively.

Case of the Complainant

1. The case of the Complainant as revealed from the record is that on 13.12.20 the Complainant purchased a refrigerator having Model 71626 215 IMPC PRM 3S WINE WH from the Opposite Party No.2 (seller) for a sum of Rs. 13,800/- vide invoice No. 643. The Complainant stated that the refrigerator was notrunning well from the beginning as the said refrigerator was creating overcooling in entire space and there was freezing ice in the entire refrigerator. In this regard, the Complainant made complaint to customer care and the staff of customer care support visited the Complainant but could not repair the refrigerator. Further, the Complainant stated thatthe subject refrigerator was under warranty period and the Opposite Parties were under obligations to cure the defect of refrigerator. Therefore,on 15.11.21, the Complainant has sent a legal notice to the Opposite Parties but the Opposite Parties neither complied nor replied the same. Hence, this shows deficiency in service on behalf of Opposite Parties. The Complainant filed the present complaint and prayed to direct the Opposite Party to replace the refrigerator in question with new one and Rs. 5,00,000/- with interest @ 24 % p.a. on account of mental harassment.  She has also prayed for Rs. 51,000/- towards litigation charges.

Case of the Opposite Party No.1

2. Upon notice, the Opposite Party No.1entered their appearance and filed written statement.Opposite Party No.1 contends they have never refused to provide any after sale service and the warranty of therefrigerator had already expired on 12.12.2021 and the refrigerator presently covers warranty on the compressor. It is also contended that the Complainant has not mentioned even a single date or a complaint no. lodged by her with the Opposite Party No.1 so asto show that the Opposite Party No.1 failed to provide after sales service as assured under terms of warranty. It is alleged that the present complaint is abuse of law hence, deserves to be dismissed with costs.

Case of the Opposite Party No.2

3. Upon notice, the Opposite Party No.2entered their appearance and filed written statement. The Opposite Party No.2 objects to the complaint on the ground they are only the seller of the subject product and no vicarious liability can be attributed to them as they are neither the manufacturer nor a service provider. It is contended that Opposite Party No.2 does not fall within the ambit of Section 2(36) and section 84 of the Consumer Protection Act,2019 and the complaint is liable to be dismissed.

Rejoinders to the written statements of Opposite Parties

4. The Complainant filed separate rejoinders to the written statements of Opposite Parties wherein the Complainant has denied the objections raised by the Opposite Parties and has reiterated the assertions made in the complaint.

 

 

Evidence of the Complainant

5. The Complainant, in support of her complaint, filed herevidence by way of affidavit wherein she has supported the averments made in the complaint.

Evidence of the Opposite Party No.1

6. In order to prove its case Opposite Party No.1 filed affidavit of Shri Neeraj Mehta, Senior Manager of Opposite Party No.1 wherein he has supported the case of the Opposite Party No.1 as mentioned in the written statement.

Evidence of the Opposite Party No.2

7. In spite of affording sufficient opportunities, the Opposite Party No.2 failed to file their evidence. Therefore, vide order dated 12.01.2023, the evidence of Opposite Party No.2 was closed.

Arguments & Conclusion

8. We have heard the Ld. Counsels for Complainant and the Opposite Party No.1. We have also perused the file and the written arguments filed by the Complainant.
9. It is the case of the Complainant that subject refrigerator purchased by her from the Opposite Parties was defective as from the date of purchase and was not functioning properly. It is also the case of the Complainant that she lodged the complaints in this regard with customer care service but Opposite Parties did not remove the defects in said product. It is alleged that in spite of lodging many complaints, Opposite Party No.1 and 2 neither repaired or replace the above said product. It is alleged that the subject refrigerator was under warranty period and Opposite Parties were under obligation to cure the defects of the subject refrigerator. On the other hand, the Opposite Party No.1 contends that they have never refused to provide any after sale service and the warranty of the refrigerator had already expired on 12.12.2021 and the refrigerator presently covers warranty on the compressor. Opposite Party No.2 contends that they are merely seller of the product, hence not liable under the Consumer Act.
10. The perusal of the file shows that the Complainant has only filed copy of Purchase invoice as well as few photographs allegedly of the same refrigerator in support of her case. The contention of the Complainant is that the defect in the product was intimated to the Opposite Party and the complaints were lodged, however, the said contention has not been supported by any documentary proof. The perusal of the complaint itself shows that the Complainant has neither mentioned any dates of complaints allegedly lodged with the Opposite Parties nor any complaint no. allotted. The Complainant has also failed to show any warranty card to show that the product was covered under the warranty. We observe that the Complainant has neither filed any copy of complaint to the Opposite Party nor has she filed any correspondences exchanged between the parties. The Complainant has neither mentioned about any Job no. in her pleadings nor placed any documents such as job sheet of the product to prove his averments.
11. The Complainant has not filed any other proof whatsoever in support of her claim that the Refrigerator  in question was defective and despite her complaint asking Opposite Party to repair or removal of defect, Opposite Party  failed resolve the issue making Opposite Party  liable to be deficient in services.
12. In this context, we would like to place reliance on the judgement dated October 06, 2021 passed by the Hon’ble Supreme Court in Civil Appeal No. 5759 of 2009 titled SGS India Ltd v. Dolphin International Ltd. (Oct 6, 2021) wherein it is upheld that “ 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.” The Division Bench in above cited case relied on its judgment reported in Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. (2000 1 SCC66) wherein it held that the burden of proving the deficiency in service is upon the person who alleges it.
13. In view of above, we find that the contentions raised by the Complainant in the complaint have not been substantiated/corroborated by sufficient documentary evidence and the onus being on the Complainant to prove her case, the Complainant has miserably failed to discharge the onus.
14. Thus, we are of the considered opinion that no case is made out for deficiency in services and unfair trade practices against the Opposite Parties and as such, the present complaint is hereby dismissed. No order as to costs.
15. Order announced on 17.10.23.

Copy of this order be given to the parties free of cost.

File be consigned to Record Room.

 

(Anil Kumar Bamba)           Member

(Adarsh Nain) Member

(Surinder Kumar Sharma) President