Present : Sri S. K. Majumdar, President.
Sri T.K. Bhattachatya, Member.
Order No. 1 3 Dated 2 8 / 1 0 / 2 0 0 9 .
Complainant Bikash Ganguly by filin g a petition u/s 12 of the C.P. Act on 29.2.08 has prayed for issuing an order upon o.p. no.1 M/s. L.G. India (P) Ltd. for replacement of defective refrigerator, compensation payment of interest and litigation cost etc.
Fact of the case in short is that on 1.2.05 the complainant purchased one refrigerator from o.p. no.2 M/s. Anandamela of G-9, Gariahat Market, Kolkata-19 at Rs.8000/- by cash. He booked the refrigerator on 1.2.05 from o.p. no.2 who promised to deliver the refrigerator within 24 hours of purchase. The refrigerator was delivered on the next day at midnight and so the complainant could not check the materials by giving trial run of the refrigerator. The delivery personnel of o.p. no.2 assured the complainant that the personnel of o.p. no.1 will come in the next morning and will give trial run in presence of the complainant to his full satisfaction. But the service personnel did not visit the house of the complainant and the defect was detected in the next morning and immediately the complainant reported the matter to o.p. no.2. But o.p. no.2 without attending the complainant asked him to contact o.p. no.1 and gave telephone number, but the complainant could not contact o.p. no.1 because the telephone number given by o.p. no.2 to the complainant never responded.
O.p. no.2 being the authorized representative of o.p. no.1 sat tight over the mater and always tried to shift the responsibility to o.p. no.1. Finding no other alternative the complain ant wrote letter to o.p. no.1 under regd. post on 25.6.07 ventilating his grievances and after two years one service personnel of o.p. no.1 visited the complainant and offered for repair of the defect subject to payment of cost of materials to be replaced. But the defect was detected during the warranty period, but o.p. no.1 neglect to rectify the defect. The complainant refused to make any payment for such repair and finding no other alternative the complainant has filed this case against both the o.ps. with the aforesaid prayer.
O.p. no.1 on 23.2.09 has filed a w/v denying interalia that the refrigerator was delivered to the complainant at midnight and it has also denied any defect of the refrigerator in question and they have also denied that he complainant has made any complaint about the alleged defect of the refrigerator during the warranty period and complainant for his unlawful gain has filed this case and accordingly, it should be dismissed.
Decision with reasons :
It appears on perusal of the record that even in spite of service of notice either of the o.p. did not appear till 22.8.08 when the date of ex parte hearing was fixed. Subsequently, on 16.11.08 o.p. no.1 appeared and gave an undertaking to file power on the next date on 23.2.09. On 23.2.09 o.p. no.1 filed w/v and ex parte order against o.p. no.1 was vacated. But o.p. no.2 neither appeared nor filed any w/v. So the case is heard ex parte against o.p. no.2.
We have already mentioned that o.p. no.1 on 23.2.09 has only given some denial against the case of the complainant has made out in his petition of complaint. It is the settled principle of law that mere denial without any substance to establish its own case is evasive denial and that does not carry any value of its own. Denial must be established or counter acted by cogent evidence oral and documentary and also by way of pleadings. We do not find it in the w/v as submitted by o.p. no.1.
Admittedly, petitioner purchased a refrigerator which he booked with o.p. no.2 and o.p. no.2 who delivered it at his house on 1.2.05. It is the specific allegation of the complainant that as o.p. no.2 delivered it in the midnight he had no opportunity to give trial run of the refrigerator and o.p. no.2 further assured him that in the next day morning the service personnel of o.p. no.1 will visit his house and will give the trial run of the refrigerator in presence of the complainant to the satisfaction of the complainant. But ultimately his promised was not given effect to and o.p. no.2 took the device to shifting responsibility upon o.p. no.1 and o.p. no.1 also claimed that there was no defect in the refrigerator in question and the complainant did not inform them within the period of warranty.
Common prudence suggests that when a person purchases any article and if it gives satisfactory service in that event there is no earthly reason to complaint against it unless the purchaser is guided by ill motive. But this aspect is completely absent in the present case. Admittedly, he purchased the refrigerator. It appears from cash memo/challan that he purchased the refrigerator at Rs.8000/- vide invoice no.19541 from Anandamela. It appears from road challan that it was delivered on 1.2.05 within 5-00 p.m. It appears from the letter dt.25.6.07 of the complainant addressed to o.p. no.1 on the subject of non attending of service personnel on call after sale service. It appears from this letter refrigerator was delivered at 12-00 in the midnight and the defect was found on the next date. He complained about the defect to o.p. no.2. Repeated complaints were lodged by the complainant on 2.2.05 and subsequently on 16.3.05, but in spite of promising none of o.p. no.2 cared to attend and visit the house of the complainant for the refrigerator and the defect was within the warranty period. We have already said that o.p. no.2 is not contesting this case and the denials given by the o.p. no.1 in its w/v is mere evasive denial without any substance. Either of the o.p. no.1 or 2 has not given the reply of the letter dt.25.6.07 to the complainant. So both these facts taken together conjointly highlight that there is substance and merit in the case of the complainant. Further, we have perused the affidavit of examination in chief of the complainant and the averments are in tune with the averments of the petition of complaint.
In order to substantiate his case the complainant has filed one decision reported in (2007) 1 WBLR (CPNC) 217 of National Consumer Disputes Redressal Commission, New Delhi on the point that false representation that a motor cycle could run 93 k.m. per liter which actually did not and as the defects were not rectified, the Hon’ble National Commission was pleased to give direction to take back the motor cycle and refund the purchase money with interest and compensation. We have gone through the decision refered to herein and we are of the candid opinion that this decision is aptly suited in the present case because the complainant here is a consumer who purchased a refrigerator from o.p. no.1 delivered by o.p. no.2 and within the period of warranty defect was found and even in spite of promising the defect was not removed. Therefore, considering facts, circumstances, evidence on record both oral and documentary we are of the candid opinion that the complainant is entitled to get the relief as prayed for as there is defect in goods and deficiency in service committed on the part of the o.ps.
Hence,
Ordered,
That the petition of complaint is allowed on contest with cost against o.p. no.1 and ex parte against o.p. no.2. O.p. no.1 is directed to replace the defective refrigerator being LG make model no. GR 181-TPLX of Rs.8000/- (Rupees eight thousand) only positively within thirty days from the date of communication of this order and the replaced refrigerator must bear the fresh warranty period as prescribed under the rule of the company. Both o.p. nos.1 and 2 are directed to pay compensation of Rs.5000/- (Rupees five thousand) only each and litigation cost of Rs.2000/- (Rupees two thousand) only each to the complainant positively within thirty days from the date of communication of this order and the grand total of Rs.14,000/- (Rupees fourteen thousand) only is to be paid by the o.p. nos.1 and 2 to the complainant positively within thirty days from the date of communication of this order, failing which it will carry interest @ 10% p.a. till full realization. Fees paid are correct.
Supply certified copy of this order to the parties on payment of prescribed fees.
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MEMBER PRESIDENT
