DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PATIALA.

Consumer Complaint No.386 of 09/10/2017

Decided on: 26/06/2019

Deepak Goel r/o 90 Hem Bagh Colony, Near Shiv Mandir, Patiala.

….Complainant

Versus

1. Only Jolly Sales, Near Modi College, Lower Mall, Patiala through its Proprietor/ partner.

2. L.G. Electronics India, 51, Udyog Vihar, Udyog Vihar Extension, Ecotech-II, Udyog Vihar, Greater Noida, Uttar Pradesh-201306 through its Managing Director.

….Opposite parties

Complaint U/S 11 to 14 of the Consumer Protection Act.

QUORUM

Smt. Inderjeet Kaur, Member

Sh. B. S. Dhaliwal, Member

ARGUED BY:

Sh. Ram Gopal Garg Adv. counsel for the complainant.

Sh. Sanjay Khanna Adv. counsel for Opposite party No.1.

Sh. Sham Lal Adv. counsel for Opposite party No.2.

ORDER

INDERJEET KAUR, MEMBER

1. The complainant Deepak Goel (here-in-after referred as complainant) has filed the complaint u/s 12 of the Consumer Protection act 1986 (here-in-after referred as Act) against Opposite parties (here-in-after referred as opposite parties).

2. Briefly stated that the case of the complainant is that he had purchased one Refrigerator make LG REF GS-L217BTJV bearing Serial No.108TRZY05421 from OP No.1 vide invoice No.1301 dt.6/2/2012 for a sum of Rs.68,500/- which is manufactured by OP No.2 and at the time of purchase, extended warranty for any kind of defect in the refrigerator was also given.

3. It is alleged that immediately on next day of its purchase, the refrigerator sold by OP No.1 gave problem in cooling and the complainant immediately made a complaint with OP No.2 vide complaint No.RNA-120207084205 dt.7/2/2012 but the problem was not resolved and the complainant again made a complaint on 15/2/2012 vide complaint No.RNA-120216087676 dt.15/02/2012 and OP No.1 sent a mechanic at the premises of the complainant who repaired the refrigerator and assured the complainant that with the passage of time, it will cure from its problem, but that was a mere tactic to induce innocent customer. The complainant suffered mental trauma on the first day of the purchase of new refrigerator when it gave problem. The same problem in the refrigerator occur and the complainant again made a complaint vide complaint No.RNA-120320095365 dt. 20.3.2012 to resolve the issue but no heed was paid to the complainant and a mechanic for formal visit was sent at the premises of the complainant so as to give excuses and put off the matter on one pretext or the other for curing the defect in the refrigerator.

4. It is further alleged that the refrigerator did not function properly and it gave same problems time and again and rather it started giving other problems also as it did not function properly and its freezer was not functioning and the complainant again made a complaint vide complaint No. RNA-130128032575 dt.28/1/2013 with the same complaint. The defect was not removed and the refrigerator was also not replaced inspite of request made by the complainant because the refrigerator is having a manufacturing defect. OPs have been dillydallying the matter on one pretext or the other to cure the defects or to replace the refrigerator with new one. The very purpose of buying the refrigerator was frustrated. The complainant again made complaint vide complaint NO.RNP-170605048947 on 05/06/2017 with same request to remove the defects in the refrigerator or to replace it with new one as it did not function properly since the date of its purchase and the same problem has occurred time and again and in fact, the defects in the refrigerator cannot be removed as it is having manufacturing defect, but OP No.1 gave excuses time and again. The complainant again lodged complaint No.170622029934 dt.22/6/2017 and complaint NO. RNP-170711090688 dt.11/7/2017 to OPs but to no avail. The problem in the refrigerator has not been removed till date. Even though today the refrigerator totally stopped working and the products placed in the fridge were rotten.

5. On these background of the facts, the complainant has filed this complaint with the prayer for direction to the OPs

i) To replace the refrigerator with new one or to refund Rs.68,500/- as costs of the refrigerator along with interest.

ii) To pay RS.1,00,000/- as compensation to the complainant on account of mental agony, tension, harassment, inconvenience and humiliation suffered by the complainant.

iii) To pay Rs.25,000/- as litigation expenses.

6. Notices were issued to the OPs No.1 & 2. None appeared on behalf of OP No.2 as such he was proceeded against ex-parte. OP No.1 appeared through counsel and contested the complaint by filling written reply.

7. In reply the allegations made in the complaint have been specifically denied and prayed for dismissal of complaint qua OP No.1.

8. Parties were afforded opportunity to produce their evidence.

9. In support of the case, ld. counsel for the complainant tendered in to evidence Ex.CA affidavit of the complainant, Ex.C-1 copy of bill dt.6/2/2012, Ex.C-2 copy of complaint numbers, Ex.C-3 copy of legal notice, Ex.C-4 copy of postal receipt, Ex.C-5 copy of bill of new Refrigerator purchased by the complainant and closed the evidence.

10. Numbers of opportunities were given to OP No.1 to lead his evidence but inspite of these opportunities, OP No.1 failed to adduce his evidence and as such the evidence of OP No.1 was closed by order dt.19/12/2018.

11. Complainant has submitted written arguments.

12. We have carefully perused the complaint, gone through the evidence produced on file and heard the arguments addressed by the ld. counsel for the complainant who reiterated his averments made in the complaint.

13 It is an admitted fact that the complainant has purchased the refrigerator make LG on 6/2/2012 vide invoice Ex.C-1. Although the list of complaints Ex.C-2 has been submitted during evidence but none of such complaints was placed on record/ file. Further the complainant has neither disclosed the made of dispatch of the complaints nor produced any sort of documentary evidence of their receipt by the OPs or the alleged complaints had ever been responded by the OPs or repair has been carried out. Onus was on the complainant to prove all these facts. The complainant has alleged that from the next date of purchase i.e. from 07/02/2012 the refrigerator started giving trouble in its functioning and as such cause of action accrued to the complainant from that very movement.

We have examined the matter in toto. Before going into the merits of the case it has been observed that issue of limitation is involved, so we feel it prudent to handle the issue of limitation on priority as preliminary issue before going into the merits of the case.

14. Section 24 A of the Consumer Protection Act 1986 relates with the period of limitation for filing the complaints which is reproduced as under:

i) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.

ii) notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complaint satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period.

15. Admittedly the refrigerator in question started giving trouble from the next date of its purchase i.e. 07/02/2012 and the complainant lodged the complaint with the OPs on 07/02/2012 itself as per his version in the complaint. The complainant has adduced no evidence in any form regarding the mode of dispatch of the alleged complaints and the said complaint dt.07/02/2012 or subsequent complaints as listed in Ex.C-2 have ever responded or acted upon by the OPs. The complainant has to prove his case to such an extent by affirmative evidence. Cause of action accrued to the complaint from 07/02/2012 itself and he was required to approach this Fora within the period of limitation as enshrined under Section 24 A of the Consumer Protection Act 1986. The complaint was received in this Forum on 09/10/2017 i.e. after the lapse of ibid prescribed period of limitation.

16. For the aforesaid reasons the complaint is dismissed being not filed within the period of limitation.

17. The complaint could not be decided within the statutory period due to heavy pendency of cases.

18. Certified copy of this order be sent to the parties free of costs under the rules. Thereafter file be indexed and consigned to the Record Room.

ANNOUNCED

DATED: 26/06/2019

B. S. Dhaliwal                 Inderjeet Kaur

Member                             Member