Delhi

North East

CC/242/2016

NASEEM AHMED - Complainant(s)

Versus

NUTAN ELECTRONICS - Opp.Party(s)

01 Aug 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. 242/16

 

In the matter of:

	Sh. Naseem Ahmad Farooqi S/o Sh. Abdul Samad R/o F-248, New Seemapuri Delhi-110095	Complainant
	Versus
1       2	Nutan Electronics H-122A, Dilshad Garden Delhi-110095   Samsung India Electronics Pvt Ltd. 20 to 24 floor, Two Horizon Centre, Golf Course Road, Sector-43 D.L.F Gurgaon, Haryana-122202.	Opposite Parties

 

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

15.09.2016 01.08.2019 01.08.2019

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Facts in brief of the present complaint are that the complainant had purchased a Samsung Refrigerator Model no. R727JARMAPX manufactured by OP2 from OP1 dealer on 24.09.2015 for a sum of Rs. 21,000/- vide invoice no. 1161. However, the said fridge started malfunctioning and started giving cooling problem due to which the food items kept inside at night used to go putrid by next morning and were inedible. The complainant lodged the first complainant in this regard with OP2 customer care on 20.08.2016 when OP2 sent its service engineer on 22.08.2016 who temporally rectified the defect in the said fridge with advice to the complainant that in case there is any further problem with the said model, the same being an unsuccessful model, would require replacement. Hearing this, the complainant went to OP1 requesting him to exchange the said fridge with a new one but the request was declined and instead complainant was asked by OP1 to voice his grievance with OP2. The said fridge became dysfunctional again after four-five days of temporary repair done on the previous date of 22.08.2016 and after many follow up by the complainant since he belongs to Muslim community and Advisor of Aman Sandesh Committee, Seemapuri ,Delhi, in view of festival of Eid-Ul-Zuha (Baqried) nearing, the complainant started frantically calling up the customer care of OP1 to send service mechanic to repair the said fridge when finally on 12.09.2016, complainant received a call from a service engineer of OP2 who assured him to visit his premise on 13.09.2016 at 11:00 AM which was also the day of festival Baqried. The complainant had purchased the sacrificial ceremonial goat as per festival ritual for Rs. 45,000/- and on OP2’s service assurance had cut the same and refrigerated it. But the service engineer of OP2 did not come either on 13.09.2016 or even on the next day. As a result, the mutton kept in the fridge got spoiled and had to be thrown away causing embarrassment to the complainant in his social political circle. By the time, the service engineer OP2 came on 15.09.2016, the complainant had run out of patience and refused to get the said fridge repaired. Therefore, the complainant was constrained to file the present complaint alleging deficiency of service on the part of OPs causing him loss of reputation, mental and financial loss and therefore prayed for issuance of direction against the OPs to either replace the defective fridge with the brand new one or refund the price thereof i.e. Rs. 21,000/- alongwith interest and also to pay a sum of Rs. 50,000/- as compensation for mental, physical and financial exploitation done by OPs and Rs. 11,000/- towards cost of litigation.

Complainant has filed copy of retail invoice for purchase of the fridge from OP1 and hand written notes of complaint alongwith type version.

2. Notice was issued to the OPs on 19.09.2016. OP1 did not appear service effected on 27.09.2016 and was therefore proceeded against ex-parte vide order dated 27.10.2016. OP2 filed its written statement on the same date and while admitting the factum of the purchase of the said fridge by the complainant on 24.09.2015 as also first complaint lodged with OP2 regarding problem of cooling vide complaint no. 4219945905 on 20.08.2016 took the preliminary objection that the complainant had used the said fridge with complete satisfaction for a period of eleven months and therefore there was no manufacturing defect in the said product and the same was confirmed by the technician of OP2 who inspected the said fridge and repaired the same as per warranty entitlement to the satisfaction of the complainant. OP2 further submitted that the complainant had again approached the OP2 on 13.09.2016 with some issue with regard to the said fridge and the complaint was registered as Ref. No. 4221458768 when on inspection by its technician, no defect / problem was found with the said machine which was working as per design and the complainant was explained and satisfied in this regard. OP2 urged that the complainant has failed to prove manufacturing defect in the said fridge or produced any expert report of any lab recognized by government as per requirement u/s 13(1)(c) of Consumer Protection Act since the onus to prove the manufacturing defect lies on the complainant and placed reliance upon judgment of Hon'ble National Commission in Vikram Bajaj Vs Hind Motor (India) Ltd. 2009 II CLT 670 and Kamal Kishore Vs Electronic Corporation of India in Rev. Petition. 3029/2010 and judgment of Hon'ble Delhi SCDRC in Tata Motors Vs. Deepak Goyal in Rev. Pet. No. 2309/2008 urging that expert opinion is mandatory as per settled proposition of law where manufacturing defect is alleged as in absence of any expert evidence, the complaint is liable to dismissed. OP2 lastly submitted that the very fact that the complainant had used the said fridge a period of 11 months with complete satisfaction ruled out any manufacturing defect therein.
3. Rejoinder in rebuttal to the defence taken by the OP2 in its written statement was filed by the complainant in summary denial.
4. Evidence by way of affidavit was filed by the complainant reiterating his grievance against the OPs and exhibiting the documents relied upon viz copy of invoice, copy of delivery challan, copy of warranty card, copy of news paper clipping of Hamara Samaj Daily, Delhi edition for dated 13.09.2016, photographs of complainant with sacrificial goat for Eid festival Kurbani and uses the manual of said fridge.
5. Evidence by way of affidavit was filed by the OP2 in reiteration defence taken in written statement.
6. Written arguments were filed by the both the parties in reassertion of their respective grievance / defence. On direction of this Forum issued on hearing dated 26.07.2018 to OP2 for placing on record the job sheet for August 2016 and September 2017, OP2 though initially submitted that at the relevant time in 2016, there was no practice of submitting Job sheets to counsel, procured the same and filed on 11.01.2019 alongwith copy of terms and condition of warranty by way of additional written arguments as annexure                   A & B respectively submitting that the service was acknowledged by the complainant which is evident by his feedback on the job sheets and therefore the complainant is liable for dismissed for non disclosure of cause of action. Despite having granted opportunity to complainant to file counter to the written arguments of OP2 in light of the job sheet filed, complainant submitted that he was not desirous to file any further objection thereto.
7. We have heard the rival contentions of both the parties and have perused the documentary record placed before us.

Undisputedly, the fridge in question purchased by the complainant in September 2015 was first reported of problem of cooling with OP2 in August 2016 i.e. after 11 months of usage by the complainant. As per the jobsheet dated 20.08.2016 filed by the OP2 alongwith the additional written argument at the end of proceedings, there was defect in the Duct of the fridge as reported by the service engineerMukesh of OP2 which was repaired and made ok and feedback given was 10 out of 10 for being satisfied by the complainant. However, the dispute arose in September 2016 when the said fridge went out of order for the second time merely after four- five days of its previous repair and Eid festival was approaching but the complaint of the complainant was not attended to in time causing not only damage to the festival non-veg but also lost to his reputation as is his grievance in the complaint against the OPs. Contrarily though, the job sheet dated 15.09.2016 filed by OP2 depict defect detected as “No Power” and repair report “Explain set ok” with feedback rating as 9 out of 10. Both the jobsheets filed by OP2 however do not bear the signatures of the complainant and therefore the authenticity of the satisfaction report and rating given therein are disputed / doubtfull.

We are in part agreement with the argument of OP2 that in view of complainant having used the fridge in question satisfactorily and uninterruptedly for a continuous period of 11 months rules out possibility of any inherent manufacturing defect therein. Merely because the complainant says that he was constrained to buy a second hand fridge of Rs. 3,500/- does not entitle him to refund of the price of refrigerator sold by OP1 manufactured by OP2. 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 (Dell), 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. 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.

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.  

8. In the light of the aforementioned case laws and settled proposition of law therein, we are of the view that both OPs were deficient in service in having failed to address the grievance of the complainant with respect to faults in fridge while it was still under warranty. However, we cannot lose sight of the fact that the complainant had used the said fridge for 11 months i.e. just one month short of completion of warranty period. The Hon’ble National Commission in the judgment of Godrej Photo-ME Ltd Vs Jaya P. Apachu in FA No. 723/2003 decided on 24.05.2004 held that the undisputed fact that the machine was with the complainant in working order till few weeks before the end of warranty period and that the complainant had used the machine for almost six months, he could not demand a full refund. The Hon’ble National Commission, therefore held that the order passed by State Commission directing full refund was not right and reduced the quantum to be paid by OP to less than half. Therefore relying on the observation and view of the Hon’ble National Commission in such a case where the complainant using defective product for a while cannot claim full refund, we are not inclined to grant full refund of the cost of fridge and direct OP1 and OP2 jointly and severally to refund sum of Rs. 6,000/- to the complainant towards the same from the date of filing of the complaint till realization. We further direct the OPs jointly and severally to pay a sum of Rs. 4,000/- towards compensation for harassment and mental agony inclusive of litigation expenses to the complainant. Let the order be complied by both OPs within 30 days from the date of receipt of copy of this order. The said fridge shall be returned to the dealer i.e. OP2 by the complainant on satisfaction of the decree as per the law settled by Hon'ble National Commission in this regard in case of East India Construction Co. Vs Modern Consultancy Services decided on 09.05.2006.               
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 01.08.2019

(N.K. Sharma)     President

(Sonica Mehrotra)  Member