Punjab

Ludhiana

CC/21/148

Pardeep Kumar - Complainant(s)

Versus

New Era Electronic Shop - Opp.Party(s)

P.S.Batra

10 Jan 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No: 148 dated 18.03.2021.                                                        Date of decision: 10.01.2023.

 

Pardeep Kumar son of Sh. Sidh Nath, resident of House No.951, Kucha No.13, Field Ganj, Ludhiana.                                                                                                                                                                      ..…Complainant

                                                Versus

1. New Era Electronics, Shop No.8-9, Street No.1, Baba Deep Singh Nagar, Near Police Station, Phase-II, Dividing Road, Dugri, Ludhiana, through its Prop./Partner/Authorized Signatory.
2. Haier Appliance India Pvt. Limited, Head Office Building No.1, Okhla Industrial Estate, Phase-III, New Delhi-110020, through its Managing Director/Director/Authorized Signatory.                                                                                                                     …..Opposite parties 

Complaint Under Section 12 of the Consumer Protection Act.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. P.S. Batra, Advocate.

For OP1                         :         Sh. Jashan Preet Sidhu, Advocate.

For OP2                         :         Sh. Manoj Kumar, representative of OP2 in                                                          person.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the complaint are that the complainant, a small Karyana shop trader, needed one Beverage cooler for storage of cold drinks, milk and butter etc. for earning his livelihood. On 02.04.2019, he purchased one beverage cooler make Haier from opposite party No.1 for an amount of Rs.59,000/-. At the time of purchasing the said beverage cooler, Bajaj Finance Pvt. Limited agreed to provide loan for the purchase of beverage cooler thus a loan agreement bearing No.4260CDEF345991 was executed and as per oral terms disclosed to the complainant, an amount of Rs.59,000/- was payable in 12 installments out of which 3 installments of Rs.4917/- were payable in advance besides Rs.1392/- as file charges. At the time of selling the said beverage cooler, opposite party No.1 assured that the beverage cooler is best selling product and has latest model of the year 2019 with several features, which will be explained and demonstrated to the complainant at the time of delivery of beverage cooler. Although the beverage cooler was delivered at the premises of the complainant and on 07.04.2019 at 8 PM but the original bill, guarantee card and other related documents were not provided by the opposite parties. The complainant opened the package of the beverage cooler and found the same to be in damaged and defective condition. The complainant lodged a protest with opposite party No.1 to the effect that an old damaged and defective beverage cooler has been supplied to him and there are cracks in the product and the layer of the foam is visible from the cracks on the upper door of the beverage cooler. Further the beverage cooler has dents on several places. Opposite party No.1 assured the complainant that the beverage will be checked and changed on the next day. On 08.04.2019, the service man visited the house of the complainant who disclosed that it is not a fresh piece and had already been sold in the year 2018 and the warranty of the product has already been expired and the complainant has to pay extra charges for the same. The complainant brought this fact to the notice of the opposite parties but they did not give any satisfactory reply and kept the matter pending on one pretext or the other. The act and conduct on the part of the opposite parties amounts to deficiency in service and unfair trade practice. The complainant also served a legal notice dated 19.04.2019 upon the opposite parties calling upon them to replace the said beverage cooler with new one and to pay compensation of Rs.50,000/- for harassment and mental tension, pain and agony but the opposite parties did not respond.  Hence this complaint whereby the complainant has sought direction to replace the above said freezer with new one and pay compensation of Rs.50,000/- and litigation expenses of Rs.15,000/-.

2.                Upon notice, the opposite party No.1 appeared and filed written statement. In his written statement, opposite party No.1 admitted the sale of beverage cooler which was got financed by availing service of Bajaj Finance Limited for a sum of Rs.59,000/-. The complainant had registered the first complaint bearing No.CG20190408103280 with regard to installation of the product and on receipt of the said complaint, service engineer/technician appointed by opposite party No.2 duly attended the complaint and resolved the issue to the utmost satisfaction of the complainant. As far as the second complaint bearing No.HI201904110000576 was with regard to the cooing issue of the product and the same was also taken care of. The third complaint was also duly attended by the opposite party and the cooling fan of the product was changed.

                   On merits, it was submitted that the product was delivered in perfect condition and the warranty of the product was afforded as per manufacturing policy. It is further stated that no defect was alleged at the time of installation of the product in the premises of the complainant and the complainant wants to extort money from opposite party and wants to tarnish the reputation of opposite party No.1. Opposite party No.1 denied the other averments of the complaint and prayed for dismissal of the complaint.

3.                Opposite party No.2 filed separate written statement thereby admitted the lodging of three complaints by the complainant. It has been further stated that those complaints were resolved to the satisfaction of the complainant. There was no dent in the product as the complainant was given demo after installing the product and at that time the complainant did not complaint any issue nor the technician witnessed any damage/defect in the product. The other averments made in the complaint have been denied and a prayer for dismissal of the complaint has been made.

4.                In support of his claim, the complainant tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of tax invoice dated 07.04.2019, Ex. C2 is the copy of repayment schedule, Ex. C3 is the copy of quotation, Ex. C4 is the copy of statement of account of the complainant, Ex. C5 is the legal notice dated 19.04.2019, Ex. C6 and Ex. C7 are the postal receipts and closed the evidence.

5.                On the other hand, the opposite parties formally did not tender any evidence and respectively suffered their statements to read their written statements as evidence and closed the same.

6.                           We have given thoughtful consideration to pleadings of the parties and have examined evidence on record. It would be most appropriate to examine the definition of ‘defect’ as enshrined in Section 2 (10) of the Consumer Protection Act, 2019 which is re-produced as under:-

“ ‘Defect’ means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods or product and the expression “defective” shall be construed accordingly.”

The definition is wide enough to include any fault, imperfection or shortcoming in quality, quantity, potency, purity or standard. A seller is under legal obligation to maintain goods free from any defect. In Tata Motors Jivan Tara Building Vs Rajesh Tyagi in 2013 SCC Online NCDRC 1031whereby it has been held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi that whenever a brand new vehicle is sold to a consumer, there is an implied contract that the vehicle being sold does not suffer from and will not suffer from any kind of fault or imperfection or shortcoming in the quality, quantity, potency and standard which is required to be maintained.      

7.                It is an admitted fact that the complainant had to approach the opposite parties thrice within a short span for resolving the issue with regard to the quality and functioning of the product. The complainant has specifically deposed that at the time of the visit, it is the salesman of the opposite parties who brought to his notice that the product has no warranty as it was sold in the year 2018. This fact has gone unrebutted and no document has been adduced on the part of opposite party No.1 to show that this product was a new one and was within the warranty period. This fact further stands corroborated on the deposition of the complainant who stated that the copy of invoice, warrantee card and challan was not provided to him at the time of purchase or installation of the product. As such, the act and conduct of opposite party No.1 that there was unfair trade practice and deficiency in service on the part of opposite party No.1.           

8.                In Maruti Udyog  Ltd. Vs Susheel Kumar Gabgotra and another 2006 (4) SCC (644) whereby it has been held by the Hon’ble Supreme Court of India that where defects in various parts of a car are established, direction for replacement of the car would be justified. “Replacement of the entire item or replacement of defective parts only called for.” Further in C.N. Ananthram Vs M/s. Fiat India Ltd. and others 2010 (4) CPJ 56 passed by the Hon’ble Supreme Court of India whereby the complainant sought replacement or full refund of the amount along with interest for “defect in the engine of the vehicle”. The Hon’ble Supreme Court has held that the replacement of the defective engine with new engine would suffice. Further, in Tata Motors Ltd. Vs Sharad and others in 2016 (SCC) NCDRC 1600 whereby it has been held by the Hon’ble National Consumer Disputes Redressal Commission, New Delhi that whether the vehicle purchased by the complainant suffered certain defects and also used for considerable kilometers, the Hon’ble National Consumer Disputes Redressal Commission, New Delhi has held that a new vehicle cannot be replaced and defective part of old vehicle has to be replaced. In the given facts and circumstances, we are of the considered view that it would be just and appropriate if opposite party No.1 is directed to repair the beverage cooler comprehensively and to the utmost satisfaction of the complainant within 20 days along with composite compensation of Rs.20,000/-. 

9.                As a result of above discussion, the complaint is partly allowed with direction to opposite party No.1 to repair the beverage cooler make Haier comprehensively and to the utmost satisfaction of the complainant within 20 days from the date of receipt of copy of order. Opposite party No.1 is further directed to pay a composite compensation of Rs.20,000/- (Rupees Twenty Thousand only) to the complainant within 20 days from the date of receipt of copy of order failing which the complainant shall be held entitled for interest @8% per annum from the date of order till date of actual payment. However, the complaint as against opposite party No.2 is dismissed. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

10.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                      President         

 

Announced in Open Commission.

Dated:10.01.2023.

Gobind Ram.

 

 

Pardeep Kumar Vs New Era Electronics                                   CC/21/148

Present:       Sh. P.S. Batra, Advocate for complainant.

                   Sh. Jashan Preet Sidhu, Advocate for OP1.

                   Sh. Manoj Kumar, authorized representative of OP2.

 

                   Learned counsel for opposite party No.1 suffered statement that the written reply filed by OP1 be considered as evidence of OP1 and closed the evidence. Sh. Manoj Kumar, representative of OP2 also suffered statement that written reply filed by OP2 be considered as evidence of OP2 and closed the evidence. 

                   Arguments heard. Vide separate detailed order of today, the complaint is partly allowed with direction to opposite party No.1 to repair the beverage cooler make Haier comprehensively and to the utmost satisfaction of the complainant within 20 days from the date of receipt of copy of order. Opposite party No.1 is further directed to pay a composite compensation of Rs.20,000/- (Rupees Twenty Thousand only) to the complainant within 20 days from the date of receipt of copy of order failing which the complainant shall be held entitled for interest @8% per annum from the date of order till date of actual payment. However, the complaint as against opposite party No.2 is dismissed. Copies of the order be supplied to the parties free of costs as per rules. File be indexed and consigned to record room.

 

                

(Monika Bhagat)          (Jaswinder Singh)                      (Sanjeev Batra)                          Member                            Member                                      President         

 

Announced in Open Commission.

Dated:10.01.2023.

Gobind Ram.