Delhi

North East

CC/120/2016

Rukshar - Complainant(s)

Versus

M/s Kuber Enterprises - Opp.Party(s)

05 Dec 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. 120/16

 

In the matter of:

 

		Rukshar D/o Mubarak Husain R/o H.No. 512, Gali No. 23 Jafrabad, Delhi		Complainant
		Versus
	1.           2.	M/s Kuber Enterprises Through its owner/proprietor A-31/11, main Yamuna Vihar Road, Maujpur, (Near Bhagwan Das School) Delhi-110053.   M/s L.G. Electronics India Pvt Ltd A-Wing, (3rd Floor) D-3 District Center, Saket New Delhi-110017.		Opposite Parties
			DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :		06.05.2016 05.12.2019 05.12.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Brief facts shorn of unnecessary details as narrated in the complaint are that the complainant had purchased an LG Washing machine for Rs. 10,900/- and one LG Refrigerator 190 Liters for Rs. 11,950/- bearing model no. 201 KL-5 serial no. 106 SRPR-009264 both manufactured by OP2 from OP1 dealer on 03.06.2015 vide invoice book No. 54 / serial No. 2659. Out of the two goods, the fridge in question soon started giving problem of cooling for which the complainant complaint to both OPs which assured him replacement of both the same. However, on complainant’s visit to the office of OPs, he never got any satisfactory response nor any replacement of the defective fridge. Therefore, aggrieved with the conduct and behavior of both OPs causing mental, physical and economic loss to the complainant and failure to provide proper services, complainant was compelled to file the present complaint alleging deficiency of service on the part of OPs and prayed for issuance of directions against the OPs to either replace the fridge in question or refund the price thereof with interest @18% p.a. alongwith compensation OF Rs. 50,000/- on account of mental, economic, physical and business loss.

Complainant has attached copy of the purchase invoice dated 03.06.2015.

2. Notice was issued to the OPs on 24.05.2016. OPs entered appearance and filed respective written statements. In the written statement filed by OP1, it took the preliminary defence that it is only a sub dealer and had sold a working well condition fridge to the complainant and it was only OP2, manufacturer thereof which provides warranty/guarantee of its products which otherwise also limited and not absolute and is a caveat to the buyer to get the product repaired only by an authorized service Centre as per terms and conditions of limited warranty documents. Lastly OP1 submitted that the complaint is not sustainable qua it for lack of valid cause of action / grievance since OP1 has not concern with the services of the products of OP2 and therefore prayed for dismissal of the complaint.

OP2 in its written statement took the preliminary defence of non- maintainability of complaint on grounds of lack of territorial jurisdiction of this Forum in as much as it averred that the fridge in question is not in Delhi and the answering OP also neither had its branch office or carrying on business for gain within the territorial jurisdiction of this Forum coupled with the fact that the fridge was delivered at Noida address and purchased from Mathura Road, New Delhi. Therefore, the present complaint is not maintainable before this Forum and liable to be dismissed. OP2 resisted the complaint on ground that in the entire complaint, complainant has nowhere mentioned any single complaint number lodged with OP2 nor filed any jobsheet with respect to the servicing/ repair thereof.

3. Evidence by way of affidavit was filed by the complainant averring that the fridge in question was not working from the time of its purchase and after few months, the complainant tried to restart the same but there was no power in it and accordingly a telephonic complaint number 160211021979 was logged by her with OP2 on which complaint when the engineer/ mechanic of OP2 came at the residence of complainant, he told her that the said model of the fridge is about 5 years old and irreparable. Hearing this, the complainant approached OP1 seeking replacement of the same and was assured of replacement but no resolution came forth. The complainant has exhibited documents relied upon as Exhibit CW1/A to CW1/C.
4. Evidence by way of affidavit was filed by OP2 reaffirming the defence of territorial jurisdiction taken in the written statement.
5. Written arguments were filed by complainant in reassertion of her grievance.
6. At the completion of the pleadings, OP2 vide statement on hearing dated 07.03.2017 submitted that earlier representation made by it on behalf of OP1 was incorrect and both the parties be separately considered. OP1 did not appear or filed its evidence and therefore its opportunity stood close vide order dated 18.04.2017. subsequently OP2 offered settlement in the matter by way of replacement of the defective fridge but prior to that, prayed for opportunity to inspect the same. Therefore, this Forum directed OP2 to send its service engineer at the residence of the complainant. On hearing held on 28.08.2018, the complainant placed on record copy of inspection report dated 07.04.2018 with defect reported as “No Cooling” and repair remarks giving by engineer Sunil Kumar “Gas problem explain to customer fridge manufacture by 6/2011”. 
7. We have heard the arguments addressed by complainant and OP2 and perused the documents placed on record.

Admittedly the fridge in question manufactured by OP2 was sold by OP1 to the complainant in June 2015. OP2 has not controverted the allegation levelled by the complainant of the subject fridge not having worked in terms of cooling or that no repair efforts were made from OP2 side on complaint registered by the complainant. It is evident from the jobsheet dated 07.04.2018 placed on record by the complainant provided by OP2’s own service engineer that the subject fridge was manufactured in June 2011. Therefore, it is apparent that the complainant was sold a four years old manufactured fridge by the OPs. The act of selling an old fridge by concealing its date of manufacture is itself unfair trade practice and failure to repair or rectify the defects therein is deficiency of service which in our considered view both OPs are guilty of.

As regards fastening of liability of the seller in such cases, the Hon’ble National Commission in the judgment of Prabhat Kumar Sinha Vs Nitish Kumar III (2016) CPJ 239 (NC) had held that the petitioner being the seller of a defective computer under warranty, in our considered view, was under obligation either to rectify the defects or to replace the computer or refund the consideration amount received. 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, considering the settled proposition of law, this contention/ arguments/ defence of OPs are unsustainable in law and the liability towards the complainant of dealer and manufacturer is joint and several.

Both the OPs have nowhere specifically denied the defects alleged by the complainant in the fridge in question and the defence was limited to wriggling out of its liability. After due appreciation of the facts of the case we are of the considered view that both the OPs are guilty of deficiency of service in having sold an old dated manufactured and defective fridge and failed to provide after sale service or attended to repair calls of the complainant. The Hon’ble National Commission in the judgment of Rellech Bio Chemical System Vs Amulya Kumar Behara (Dr.) (2007) IV CPJ 388 (NC) had in a similar case upheld the order of the lower Fora holding the OPs guilty of deficiency of service in having failed to render service within warranty period. The Hon’ble National Commission in the judgment of R.Kesava Kumar Vs Sonovision and Ors I (2016) CPJ 675 (NC) had upheld the order passed by the District Forum, not interfered by Hon’ble State Commission Lucknow in case of manufacturing defects in case of fridge in which the District Forum had directed OP to refund the cost of fridge alongwith compensation as reasonable and justified.

8. After due appreciation of the facts of the case and settle proposition of law, we hold both OPs guilty of deficiency of service and direct them jointly and severally to refund the cost of the fridge i.e. Rs. 11,950/- alongwith interest @ 6% p.a. from the date of filing of the complaint till realization. We further direct both OPs jointly and severally to pay compensation of Rs. 6,000/- towards mental harassment to the complainant. Let the order be complied with by OPs jointly and severally within 30 days from the date of receipt of copy of this order.
9.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
10.   File be consigned to record room.
11.   Announced on  05.12.2019

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member