KUNDAN KUMAR KUMAI

This is an appeal preferred under section 41 of the Consumer Protection Act, 2019 against the Judgement and ordered dated 31.05.2022 passed by the Ld. D.C.D.R.C, Dakshin Dinajpur, in CC no. 47/2020.

 Brief facts of the appellant’s case are that, the respondent no. 1 had purchased one washing machine     being Godrej Washing machine model no. “WF EON 600 PAE “from the respondent no.3. After a few use the said washing machine was found faulty and despite informing the respondents no. 2, 3 and the appellant, none of them came forward to solve the problem. Finding no alternative, the respondent no. 1 informed the matter to the respondents no.2, 3 and the appellant in writing through registered speed post on 03.10.2020, but with no response. Due to such lack of proper service, the respondent no.1 was deprived from the use of the above washing machine. Inspite of repeated communication to the respondents no. 2, 3 and the appellant, the respondent no.1 was not provided with proper service and even the claim of refund was not entertained. On one occasion the technical team of the respondents no. 2, 3 and the appellant, had taken the washing machine to the nearby service center, from the house of respondent no.1, but after returning, the washing machine developed new problems like water leakage, shocking hazards problem and peeling of the body paint. Finding no relief, the respondent no. 1 filed a complainant before the Ld. D.C.D.R.C, Dakshin Dinajpur, with necessary prayers. Hence, this case.

 The appellant appeared to contest the case by filing a written version wherein the factual aspects of the case regarding the purchase of the washing machine was admitted, but thereafter, it was contended that there was no negligence and deficiency in rendering of service by the appellant company. It was further stated, that   the washing machine had been installed to the full satisfaction of the respondent no.1 and she started lodging complaints, but when the technical team went to address the complaints, they were prevented from inspecting the washing machine. That apart, the washing machine had been purchased on 05.11.2018 and the problem began 20.11.2020, after a year and eight months of usage. Moreover, the washing machine was covered with Warrenty for practically all the components, save and except a few. Prayer was made for setting aside the impugned order.

The respondent no.1 was examined on oath and had furnished documents but none had been examined on behalf of the appellant for which reason the case was decided ex-parte.

After perusal of the materials on record and hearing the respondent no. 1, the Ld. D.C.D.R.C. Dakshin Dinajpur, passed the impugned order, whereby the appellant was directed to refund the price of the washing machine, that is Rs. 24,900/- along with Rs. 4000/- as compensation and Rs. 5000/- as litigation cost.

Being aggrieved by the impugned order, the appellant preferred, the instant appeal on the ground, that the Ld. Commission below had erred in law and facts while passing the impugned order as the product was covered under the warranty and refunding of the price was not provided.

Decision with reason

At the time of final hearing the Ld. advocate for the appellant, had taken us to the definition of negligence, indicating that legal duty was cast upon the respondent no. 1 to exercise due care while complaining, as the respondent no. 1 had filed a vexatious complaint, simply for the sake of filing the complaint, as there was no reason for complain from the washing machine. He had further argued, that when the technicians reached the residential address of the respondent no. 1, she had denied them entry for reasons best known to her. That apart the warranty of the washing machine was limited to the extent of repairing and replacing the components, but no provisions was there to replace or refund the consideration money. Moreover, the first complaint had arisen, after a passage of one year eight months, from the date of purchase on 05/11/2018. Till then the washing machine, was performing in perfect condition. Furthermore, due to the onset of the pandemic, the appellants presence before the Ld. lower Commission was also hampered following which the impugned order was an ex-parte decision and therefore, proper steps to enlighten the Ld. Commission below, by way of expert evidence could not be taken. He had also submitted, that the respondent no. 1 had failed, to discharge the burden of proof to establish the defects in the washing machine. He had relied in the judgments passed by the Hon’ble NCDRC in Kumari Namrata Singh Vs  Manager, Indus- A Division of Electrotherm in revision petition 2670 of 2010 on 06/08/2012, in the judgment passed by the Hon’ble Supreme Court in Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra on 29/03/2006 and in the judgment passed by the Hon’ble NCDRC in  Western Agri Seeds Ltd. Vs.  Ramesh Shyamraoji Dhote & Anr on 19/09/2016.

Ld. advocate for the respondent no. 1 had submitted, that the appellant had not responded to the calls on several occasion and therefore, failed to provide satisfactory service. Moreover, on one occasion the washing machine had been taken for repairs, but still the problems increased and new problems like water leakage, shocking hazards problem and peeling of the body paint. He had also pointed out to the terms and condition of the Warranty card, wherein it was provided, that 24 months of the comprehensive warranty and 5 years Motor warranty from the date of purchase, against defective material or workmanship would be provided free of charge during the warranty period. He therefore prayed for upholding the impugned order.

It is very clear, that there is no warranty or guarantee, that the washing machine should be replaced or the billed amount be refunded, as the warranty for the washing machine is very clear, that only defective material or workmanship, would be repaired free of charge during the warranty period of 24 months and 5 years in case of motor, from the date of purchase. It is not disputed, that the washing machine was purchased on 05/11/2018 and the record clearly shows, that the first complaint logged in was on 21/07/2020, which is about 1 year 8 months into the warranty period. Therefore, the presumption would be that, till such date the washing machine was performing without any defects. In this regard the Hon’ble Supreme Court in Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra, delivered on 29/03/2006, held that in the case of silence of contract of sale, as to warranty, there would be no justification in directing replacement on the vehicle.  In the instant case also, there being no ambiguity in the terms of warranty of sale, therefore, the Ld. Lower Commission’s order to refund, the price of the washing machine can not be justified and sustained.

As regards the argument, that the respondent no. 1 had failed to discharge, the burden of proof cast upon her, it is clearly visible from the record, the number of complaints logged in 21/07/2020, whereas, the appellant has merely submitted, that they were prevented from entry into the residence, of the respondent no. 1, to work out the complaint is bereft of any supporting evidence to their contention, of prevention of entry into the respondent no. 1 residence. Thus, though the respondent no. 1 had been able to discharge the burden of proof, the appellant on the contrary failed to discharge the onus accrued upon them. As such, this contention of the appellant cannot be sustained.      

However, the instant appeal is bound to succeed on the basis of the observation and findings mentioned above, on the condition that the appellant shall make arrangements to remove the washing machine from the residence of the respondent no. 1 and complete the repair, as early as possible and return the same to the residence of the respondent no. 1 and deliver the same, after demonstrating the condition of the washing machine to the satisfaction of the respondent no. 1 and  the appellants are also directed to pay the respondent no. 1,cash of Rs. 5,000/-( Five thousand) only to alleviate the pain and suffering undergone by the respondent no. 1, with respect to the washing machine. The impugned order is therefore, liable to be set aside.

 Hence, the instant appeal succeeds to the extent mentioned above.

It is therefore,

Ordered

The instant appeal be and the same is allowed on contest to the extent above.

The impugned order is hereby set aside.

The appellants are directed to comply with the directions mentioned in the body of the above judgment within 15 days from the communication of the date of this order, including the payment of Rs. 5,000/-(Five thousand)only.

Copy of this order be sent to the parties free of costs.

Copy of this order also be sent to the Ld. DCDRC, Dakshin Dinajpur.