BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, FEROZEPUR.
C.C. No. 173 of 2015 Date of Institution: 23.4.2015
Date of Decision: 28.10.2015
Ashok Kumar aged 45 years son of Ramesh Chander, resident of Near Kohli Tent House, Adarsh Nagar, Guruharsahai. Mobile No.98144-87087
....... Complainant
Versus
1. P.E. Electronics Registered Head office, Auto Car Compound, Adalat Road, District Aurangabad, Maharashtra through its authorized signatory.
2. P.E. Electronic Limited, Office and Warehouse Care of Samra Steel Products Private Limited, Kohara Road, Village Sahnewal, District Ludhiana.
3. Iqbal Radios, Faridkot Road, Guruharsahai, through its authorized signatory Amarjit Singh son of Iqbal Singh.
........ Opposite parties
Complaint under Section 12 of
the Consumer Protection Act, 1986.
* * * * * *
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PRESENT :
For the complainant : Sh M.L.Chugh Advocate
For opposite party Nos. 1 & 2 : Sh Lovejit Pal Singh Advocate
For opposite party No.3 : Exparte
QUORUM
S. Gurpartap Singh Brar, President
Mrs. Inderjeet Kaur, Member
ORDER
GURPARTAP SINGH BRAR, PRESIDENT:-
Brief facts of the complaint are that complainant purchased one fully automatic washing machine Electrolux FLWM8-0KG-EWF-1082GS/N8903279030186 for an amount of Rs.33,000/- from opposite party No.3 on 07.07.2014. Likewise, complainant on the same date, purchased one refrigerator make Electrolux SBSREF585 Ltrs EP600DM S/NKE125E32970131 for a consideration of Rs74,000/-. Opposite party No.1 is the manufacturer of the refrigerator and washing machine with the name and style of P.E. Electronics
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Limited having their head office at Aurangabad, whereas, opposite party No.1 has kept its office at Ludhiana, whereas opposite party No.3 is sub dealer at Guruharsahai. After installation of the refrigerator and washing machine in the house of the complainant, it was found that both the electric goods were not working properly. Front loading washing machine was not working side by side, whereas inner liner of the refrigerator was found cracked. The complainant made a complaint with opposite party No3 and a mechanic sent by opposite party No.3 found the above said defects in the washing machine and the refrigerator. The complainant lodged a complaint with the service station of the manufacturer i.e. opposite party No.1 at Guruharsahai in the month of September and October respectively, opposite party No.1 assured to the complainant that the both goods i.e. refrigerator and washing machine will be changed, but nothing has been done so far. Further it has been pleaded that there is a manufacturing defects in both the goods sold to the complainant. Opposite party No.3 had been cooperating with the complainant and lodged various complaints with opposite party Nos. 1 & 2, but despite assurance given by opposite party Nos. 1 & 2 nothing has been done. Due to manufacturing defects, the complainant is unable to use the refrigerator and washing machine. Resultantly, complainant had to purchase new washing machine and refrigerator as these goods are the basic needs for daily use. The valuable
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money of Rs.1,07,000/- has been wasted and the complainant is suffered mentally. Pleading deficiency in service and unfair trade practice on the part of the opposite parties, the complainant has prayed that the opposite parties be directed to refund Rs.1,07,000/- alongwith interest @18% from 07.07.2014 till realization, to pay Rs.50,000/- as compensation for mental agony, pain and harassment and Rs. 12,000/- as litigation expenses.
2. Upon notice, the opposite party Nos. 1 & 2 have appeared and filed their joint written reply to the complaint raising certain preliminary objections interalia that the complainant discloses no cause of action against the opposite parties; that the complainant is not a consumer. These products were sold to dealer for commercial purpose for further sale on 21.10.2011 and 22.10.2011. However, these products were returned by the dealer and installed at his own residence; that there is no deficiency in service on the part of the opposite parties; that the present complaint has been filed with a malafide intention just to harass the opposite party with a view to grab money and that the complainant has not come to this Forum with clean hands and has suppressed the material facts from this Forum and has mentioned wrong and twisted and distorted facts in the complaint and is not entitled for any relief. On merits, it has been pleaded that the washing machine and refrigerator were supplied to the dealer namely Iqbal Radio, Guruharsahai i.e.
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opposite party No.3. The washing machine and refrigerator were sold vide bill dated 21.10.2011 and 22.10.2011 respectively to opposite party No.3. The bill dated 07.07.2014 is not the genuine bill. It has not been signed by any one nor it has been stamped by the dealer. No address of the customer has been mentioned on the bill because these articles are being used by the dealer himself for his own use. The product are already out of warranty. It has been further pleaded that the complainant has taken the replacement of these two articles on 30.11.2012 in case of the refrigerator and on 31.12.2012 the washing machine was also got replaced by the dealer from the company. No complaint was received by the opposite parties after replacement of products. Moreover, the warranty conditions cease to operate after replacing the old products with the brand new articles in the case of complainant. The mobile number mentioned in the job sheet also belongs to father of dealer. As per the warranty terms, the articles like washing machine and the refrigerator should have been installed by the company engineer. But in the present case, washing machine as well as the refrigerator has been installed by the complainant through third party. The first complaint received by the opposite party regarding the defective product was 23.09.2014. The complaint was promptly attended by the service engineer of the opposite party namely Tarsem Singh. After thoroughly checking the washing machine it was found that there is a defect in
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PCB and service engineer recommended for replacement of PCB. The service engineer gave an estimate of repair of PCB of Rs.6100/-. But as a goodwill gesture, the opposite party offered discount on PCB and also waived off labour and visiting charges and offered this replacement of PCB at the cost of Rs.4,000/- . There were no such manufacturing defects in the products sold by the opposite parties. The complainant has intentionally did not mention the fact regarding replacement of the washing machine and the refrigerator to this Forum just to get another replacement of the product which are out of warranty. The present complaint has been filed after using the product for a long period of four years.
3. Opposite party No.3 was proceeded against exparte vide order dated 05.06.2015.
4. The learned counsel for the complainant has closed evidence on behalf of the complainant by tendering into evidence Ex. C-1 to Ex.C-5 On the other hand, learned counsel for the opposite party Nos. 1 & 2 tendered into evidence Ex.O.P1 & 2/1 to Ex.O.P 1 & 2/9 and closed evidence on behalf of the opposite party Nos. 1 & 2.
5. We have heard the learned counsel for the parties and have also gone through the record.
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6. The grievances of the complainant is that after installation of the refrigerator and washing machine in the house of the complainant both the electric goods were not working properly. The complainant alleged in the complaint that front loading washing machine was not working properly, whereas inner liner of the refrigerator was found cracked. The complainant approached the opposite party No.3 who sent his machanic to check the both electric goods and found the same defects in both the goods as alleged by the complainant. The complainant also lodged the compalint in office of opposite party No.1 at Guruharsahai in month of October and September. Opposite party No.1 assured to the complainant that both the goods will be replaced but till today opposite party No.1 has not replaced both goods and there was manufacturing defects in the both electric goods. The version of the opposite party No.1 and 2 are that both the electric goods were supplied to the dealer i.e. opposite party No.3.The washing machine and refrigerator were sold to opposite party No.3 vide bills dated 21.10.2011 and 22.10.2011. To prove their version the opposite party Nos.1 and 2 has placed on file copy of bills Ex. OP-1&2/3 and Ex.OP-1&2/5. Opposite party Nos. 1 and 2 have pleaded in the written reply that complainant had taken replacement of these two articles on 30.11.2012 in case of refrigerator and on 31.12.2012 the washing machine was also replaced. To prove their version the opposite parties have placed on file document Ex. OP-
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1&2/4 and Ex. OP-1&2/6. From the documents Ex. OP-1&2/4 and Ex. OP-1&2/6 it is proved that the complainant had taken replacment of these articles.
7. From the pleadings and evidence led by both the parties, the dealership of opposite party No.3 with opposite party Nos.1 and 2 is admitted. Supply/Purchase of automatic washing machine for Rs.34,276.32/- and Refrigerator make Electrolux for Rs.73,846/- by opposite party No.3 from opposite party Nos.1 and 2 on 21.10.2011 and 22.10.2011 is also admitted. Replacement of both the articles by opposite party No.3 from opposite party Nos.1 and 2 on 31.12.2012 and 30.11.2012 is also admitted. The replacement was made by opposite party No.1 and 2 to opposite party No.3 only. One thing further becomes clear that if the Refrigerator and Washing Machine were replaced to the dealer then there must of be some reason for the same. Otherwise there is no reason for replacement of the same. Secondly, the replacement of both the articles was given to the dealer as the name of Iqbal Radios has been mentioned on the replacement papers. There was no bar for the dealer to further sell it to its customers as function of the dealer is to further sell it to its customers as function of the dealer is to promote the business by selling the articles placed in its Showroom. The complainant has placed on the file bills of the Refrigerator and
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Washing Machine vide bill Ex. C-2 on 7.7.2014 for a valuable consideration of Rs.1,07,000/- i.e. Rs.74,000/- for the Refrigerator and Rs.33,000/- for washing Machine. To prove that the complainant has purchased the above article. The opposite party in its written statement as well as affidavit have admitted that complaint was lodged on 23.9.2014 as narrated in para no.4 of the written statement. It is further averred by the opposite parties that the Washing Machine was checked by Tarsem Singh and found that there was defect in PCB and it was not working and recommended for replacement of PCB. The service Engineer gave an estimate of Rs.6100/- but at a goodwill gesture replacement of PCB was offered at Rs.4000/-. The affidavit of Tarsem Singh Ex.OP-1&2/2 has also been tendered by the opposite parties. The opposite parties have taken the stand that Refrigerator and Washing Machine have been installed at the residence of Dealer and the sale of both the articles to complainant are a mere eye wash and infact, the dealer himself is using the same and the name of the complainant is being used. Tarsem Singh has tried to help the opposite parties through his affidavit Ex.OP-1&2/2, but he admitted in para no.5 that he offered PCB to complainant at a discounted rate, which falsifies the stands of the opposite parties that Refrigerator and Washing Machine were installed at the resident of the Dealer, Tarsem Singh further deposed in his affidavit that he checked the washing machine and prepared the estimate, but
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no such estimate has been placed on the file. The Job Sheet Ex.OP-1&2/9 further falsifies the stand of the opposite parties, because the Job Sheet reveals that in the column of date of purchase, the date 1.6.2012 has been mentioned and the purchased amount of Rs.86,000/- has been shown, which figures are totally wrong. Neither the Refrigerator nor the washing machine were worth Rs.86,000/- singly or collectively. So, the Job Card is not related to the articles purchased by the complainant and rather the same has been manipulated by the opposite parties. The complainant has discharged his onus by producing the bill dated 7.7.2014 and lodge of the complaint by him is also admitted by the opposite parties. So, under these circumstances, the onus shifted on the opposite parties to prove that there was no manufacturing defect. The complainant has pleaded in the complaint that opposite party No.3 had been co-operating with the complainant and lodged various complaints with opposite party Nos.1 and 2, but despite assurance given by opposite party No.1 and 2, nothing has been done. The complainant has placed on file affidavit of Harmit Singh Mechanic, who checked the Refrigerator and Washing Machine in which he clearly stated that he had seen the bills vide which, both the articles were purchased from opposite party No.3. He further deposed that there was no defect in PCB of Washing Machine and front loading was not working of the Washing Machine side by side and inner liner of the washing
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machine was found crack and this was the result of manufacturing defect. He further deposed that Refrigerator and washing machine were not repairable and rather replacement was required. He further deposed that for installation of both the articles, there was no need of any engineers as wall mounting was not to be done in both the articles. The complainant has also placed on file affidavit of dealer Amarjit Singh Ex. C-4. The dealer is clearly deposed in affidavit that Harmit Singh Mechanic was deputed for checking of the refrigerator and washing machine and manufacturing defect was found. He further deposed that he had received many complaints from the various customers regarding improper working of such types of refrigerator and washing machines. The opposite party has mainly argued that both the articles initially sold on 21.10.2011 and 22.10.2011 were replaced in the month of November, 2012 and December 2012 and these items were used by Amarjit Singh at his residence and after replacement he was not competent to sell the same. The opposite parties have failed to produce any evidence on the file that Amarjit Singh proprietor of Iqbal Radios has used the refrigerator and washing machine prior to dated 30.11.2012 and 31.12.2012, respectively. The learned counsel for the opposite parties have argued that in the replacement papers the name of the Amarjit Singh son of Iqbal Singh has been mentioned. But the perusal of the replacement bill clearly shows that the name of M/s Iqbal Radios
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Guruharsahai has been mentioned in the center of the bill which falsifies the version of the opposite parties. The counsel for the opposite parties further argued that both the items are out of warranty. But this arguments carries no weight because both the items were sold on 7.7.2014 to the complaiant vide bill and as such, the warranty is to be started on 7.7.2014.So, it cannot be said that the products were out of warranty. The opposite parties have failed to produce any document of the file that the bill dated 7.7.2014 is not a genuine bill. In para no.2 of the affidavit Ex. OP-1&2/1 on merits, the area Service Manager Kamal Koshik has depsoed that no complaint was received by the opposite parties after replacement of the products but at the same time, in para no.4 he admits that the complaint was received on 23.9.2014. In para no.3, on merits, Mr. Koshik further admits that service engineer visited the premises of the complainant which further falsifies the stand of the opposite parties that the articles were used by the dealer himself. Mr. Koshik further deposed in affidavit in para no.3 that in the job sheet mobile number of father of dealer has been mentioned, but it was argued by the counsel for the complainant that Iqbal Singh died about 25 years ago. So, this fact is also falsifies. The admission of service engineer Tarsem Singh and Area Service Manager regarding defect of PCB goes to long ways to show that there was some defect in the washing machine. The silence on the part of the opposite parties and
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in their affidavits regarding the defect in refrigerator goes a long ways to show that there was infact a manufacturing defect as proved by the complainant through his evidence of expert. In the affidavit, the opposite party through its area manager has stated that the complainant has not mentioned malafidely regarding the replacement of both the items. It seems surprising that how the complainatn could mentioned about all this when it was not in his knowledge. The replacement was given to the dealer and not to complainant and as such, the affidavit of area manager losses its value. The further averment of the opposite party that the dealer has used the items for four years is without any evidence.
8. From the discussions made above, we are of the confirmed view that the version of the complainant is believable. There is manufacturing defect in the washing machine as well as refrigerator. The opposite party neither replaced the same nor repaired the same and rather taken contradictory, inconsistence and false stand. The opposite parties have failed to prove their case, whereas complainant has been successful in proving his case. The deficiency in service is writ large on the part of the opposite parties. Since, the complainant has purchased new refrigerator and washing machine and has been deprived off his rights to use these items after September, 2014 and in view of the fact that both these items were replaced to the dealer by the opposite parties which further confirms that there was
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some defects in these items so we do not think it proper to order for replacement of the complainant and rather order of refund of the amount.
9. In view of what has been discussed above, this complaint is accepted with Rs.10,000/- as compensation for mental agony, pain and harassment and Rs.5000/- as litigation expenses. The opposite parties are directed to pay Rs.1,07,000/- to the complainant as price of refrigerator as well as washing machine in question. This order is directed to be complied by the opposite parties jointly and severally with within a period of 30 days from the date of receipt of its copy. A copy of this order be communicated to the parties concerned free of costs. File be consigned to record room.
Announced (Gurpartap Singh Brar)
28.10.2015 President
(Inderjeet Kaur) Member
