Date of Filing             :    12 April, 2018.

Date of Judgement    :    12 April, 2024.

Mr.  Dhiraj Kumar Dey,  Hon’ble Member.

            This case arises when Sri Swarup Ghosh, hereinafter called the Complainant, filed a complaint under Section 12 of the Consumer Protection Act, 1986  (the Act), against (1) Reliance Retail Limited, (2) the Manager, Panasonic India Pvt. Ltd. and (3) the Manager, Bajaj Finance,  hereinafter called the Opposite Parties or OPs, alleging deficiency in service occurred from the part of the OPs arising out of non-repairing of or non-replacing the newly purchased refrigerator.

            The material facts arising out of the statement of complaint petition and the documents annexed with it are, if brief, that the complainant had purchased a new refrigerator manufactured by the company of the OP-2 on 08/11/2018 from the OP-1. He made a down payment of ₹3,420/- and the rest amount of ₹30,780/- had been financed by the OP-3.  The product was delivered on 10/11/2018 and installed thereafter. Complainant alleged that one week after the installation he doubted that the product was not cooling properly.  He then informed his concern to the OP-1 who sent a technician only to assure him that the product would be functioning normally after some days.  Some days had passed but the same cooling problem existed.  He then sent an e-mail to the manufacturing company, the OP-2, on 27/12/2018 stating the cooling problem. One engineer of the OP-2 after inspecting the product declared that product is defective and the fan motor is not working.  This matter was conveyed to the OP-1 immediately.  OP-1 sent an engineer on 30/12/2018 but failed to repair.  On 05/01/2019 the OP-2 again sent an engineer who replaced the fan motor, but the refrigerator did not cool sufficiently for which the engineer declared that the P. C. B. (complainant stated it as P. C. V.) is defective.  At this stage the complainant was reluctant to allow more repairing and demanded replacement of the refrigerator.  But neither the OP-1 nor the OP-2 agreed to replace the defective refrigerator.  Complainant sent e-mails to OP-3 on 30/12/2018 and 05/01/2019 to stop EMI till his complaint was resolved, but the OP-3 did not agree to stop EMI.  As his grievance has not been resolved by the OPs he lodged this complaint before this Forum/Commission praying either replacement of the defective product by a new one or refund of money and return the product, compensation of ₹5,000/- for his harassment and ₹2,000/- as litigation cost.

            Complainant filed copies of (i) Tax Invoice issued by the OP-1 on 08/11/2018, (ii) Job Sheet issued by the OP-2 on 29/12/2018, (iii) Job Sheet issued by the Service Centre of OP-1 in 30/12/2018  and (iv) Job Sheet issued by the OP-2 on 05/01/2019  as annexure to the complaint petition.

            Notices were served upon the OPs, after admission, to appear and contest the case by filing their written version.  OP – 1 and OP – 2 appeared, OP – 1 filed written version but OP – 2 prayed time. Complainant then amended the address of OP – 3 and served notice upon  OP – 3.   OP – 2 failed to file their written version within the stipulated time period for which the case proceeded ex parte against OP – 2.  OP – 2 then preferred a revision petition before the Hon’ble SCDRC.  Afterwards the OP – 2 failed to bring any order from the Hon’ble SCDRC.  The OP – 3 appeared and filed written version.  As the OP – 2 failed to bring any order from the Hon’ble SCDRC, the complainant was then directed to file Evidence on Affidavit. Complainant then appeared through his Ld. Lawyer by filing Vakalatnama and also filed Affidavit-in-Chief.  Both the OP-1 and OP-3 failed to file any questionnaire despite repeated opportunities were given to them. As a result they were constrained to file any questionnaire and were then directed to file their evidence.  OP Nos. 1 & 3 highlighted that they would not file any evidence.  Ultimately argument was heard and the complainant, OP-1 and OP-3 filed their respective Brief Notes on Argument.  We are now come to the point of delivering Final Order/Judgement.  We have to decide whether the complainant is a consumer and whether any deficiency has been caused by the OPs for which the complainant is entitled to get relief as prayed for.

            We now proceed with these matters together to avoid repetition.

DECISION WITH REASONS

            The brief facts of this case as emerged from the complaint and the annexed documents are that the complainant purchased on 08/11/2018 from the OP-1 a brand new refrigerator manufactured by the company of OP-2 which was priced at ₹38,000/- as seen from the Cash Memo issued by the OP-1.  The product was delivered on 10/11/2018, but it is alleged that from the very beginning after installation the refrigerator was not working properly.  The technicians of both the OP- 1 and OP-2 failed to rectify the defects in the refrigerator in two occasions.  First they opined that the defect was due to fan motor. Then they decided that the P. C. B. of the product was defective and should be changed.  At this stage the purchaser/complainant decided not to allow the technicians to repair it further and demanded replacement.

            In the written version the OP-1 stated, admitting the fact that they have sold the product to the purchaser/complainant, that they were ‘an authorised dealer, retailer and service centre of the Reliance Digital Limited and used to render the services of selling, repairing and maintenance of the electronic goods  to the customers very honestly, sincerely and carefully’.  They also stated therein that they were ‘only one of the stores or selling outlet and it has no liability for any manufacturing defects’.  It is also stated therein that they had no fault or deficiency in service provided to the customer/complainant, any deficiency in resolving complaint of the complainant would go to the manufacturer. 

            The OP-1 has rightly phased out of providing service further after their first after-sales service.

            The OP-2 failed to file their written version within the stipulated time after receiving the notice and appearing before this Forum/Commission and thereby the case proceeded ex parte against the OP-2. Thereafter they appeared and filed their written version and a prayer for vacating the ex parte order which was not allowed.  However, in their written version the OP-3 stated, denying all allegations, that there were no latches or deficiency from their part in providing effective services in respect of the defective product.  They relied on the terms and Conditions of Warranty associated with the refrigerator and wanted to assure the complainant that they would extend the warranty period for two months after repairing which the complainant refused.

            In their written version the OP-3 denied the allegations made in the complaint petition.  They stated that they had not any deficiency in providing service to the complainant.  They also stated that the complainant approached before them to provide financial assistance for ₹30,780/- in purchasing his desired refrigerator, which they somehow misspelt as ₹33,040/- in their written version.  They annexed the statement of account in respect of such financing wherefrom it appears that there was no due payable to them by the borrower, the complainant.  In their written version they reproduced the Clause – 14 of ‘Standard Terms and Conditions – Consumer Durables & IT Products’ executed between the complainant and the OP-3 which is as follows:

            “Clause No. 14 :- The Borrower(s) shall be exclusively responsible for delivery of the product from the delear/manufacturer/seller, as the case may be and the company shall not be liable for any delay in delivery or non-delivery of the product and or with respect to quality, condition, fitness, suitability or otherwise whatsoever of the said product.”  [Emphasis provided.]

            The OP-3 also stated in the written version that this Forum/Commission has no jurisdiction to entertain the instant case as per Clause – 31  of  ‘Terms and Conditions – Consumer Durables & IT Products’ as it is stated therein that any dispute to be referred to the Sole Arbitrator appointed by the complainant.  But this contention cannot be upheld as there are an array of judgements of the Hon’ble Apex Court as well as of the National Commission which affirm that this Forum/Commission has the necessary jurisdiction to try a dispute of like nature, despite the existence of the Arbitration clause, as per Section 3 of the Consumer Protection Act, 1986 (Section 100 of the C. P. Act, 2019).  The annexed documents state that the OP-3 paid ₹30,780/- to the OP-1 during the purchase, so they have every right to receive this amount from the borrower despite the direction for ‘stop payment’ of the complainant/borrower.

            Now, from the complaint petition and the written statements of the OPs it is an admitted fact that the refrigerator found defective within a week of installation which was attended by the authorised technicians thrice and, as detected, replaced the fan motor which was suspected as defective.  Till the problem of proper cooling existed for which a technician opined that the defect was due to P. C. B. problem which they wished to be replaced.  At this stage the complainant refused to allow further repairing, which we think he had taken the right decision as a PCB is considered as the ‘Brain’ of an electronic gadget and the defective product had been installed only two months ahead. 

                       Let us now consider the meaning and function of the P. C. B.  According to WIKIPEDIA: “A printed circuit board (PCB), also called printed wiring board (PWB), is a medium used to connect or "wire" components to one another in a circuit.  ……..   Printed circuit boards are used in nearly all electronic products.”              According to The PCB (printed circuit board) serves as the foundation for electronic components in a device. It provides mechanical support and electrical connections for these components. The conductive pathways on the PCB allow signals and power to be routed between the different parts of the device, enabling it to function as intended. Additionally, the PCB helps to organize and arrange the components in a compact and efficient manner, contributing to the overall functionality and reliability of the electronic device.”   [Emphasis provided.]

            So, it is our considered view that when it is found that the main part of a newly purchased device is defective then any purchaser should have right to claim replacement.  No purchaser can expect that his purchased product would be repaired repeatedly as it is under warranty.  Here, the complainant allowed its repair thrice, but when it is found that the so called main part of the refrigerator is suspected as defective and thereby should be replaced, and then he rightly intervened in further repairing and claimed for replacement despite the warranty condition.  A purchaser always expects goodwill gesture from a reputed manufacturing institution depending upon which he purchases the product.  In the instant case the OP-2 is expected to act on this goodwill gesture when they found that after repeated replacement still problem exists and the purchaser expects replacement of the defective product, the manufacturer is expected to replace the defective product to ascertain their reputation in the market.

            As there is no questionnaire of the OPs and the OP Nos. 1 & 3 did not want to file any evidence we have nothing to consider further for proper adjudication beyond the respective OP’s written versions.  In their BNAs the complainant and the OP Nos. 1 & 3 repeated their statements as they stated in their respective written versions.  OP- 2 did not participate in the argument.

             In the end, we are of the considered view that the present complaint stands as the OP-2 has caused deficiency in service to the complainant.  Here the complainant is definitely a Consumer as per Section 2(1)(d) of the Consumer Protection Act, 1986 [Section 2(7) of the C. P. Act, 2019] who availed ‘Service’, as defined under Section 2(1)(o) of the Act, 1986 [Sec. 2(42) of the Act, 2019], of the OPs.  We find no deficiency in service on the part of the OP Nos. 1 & 3 whereas there is a definite deficiency in service occurred from the part of the OP-2 and hence they have to compensate. We think that the OP-2 must replace the defective refrigerator with a new one of same model or of same value in completely working condition and having no defect in any form, or refund the money paid by the complainant during the purchase.  The complainant is entitled to get a new refrigerator of same model or of same value. No compensation is being awarded as the OP-2 should replace the defective product with their own cost, but a cost of ₹2,000/- is being imposed on the OP -2 payable to the complainant as litigation cost.

            Hence, it is

ORDERED

            That the complaint Case No. CC/15/2019 be and the same is allowed ex parte against the Opposite Party Number 2 and dismissed on contest against the Opposite Party Nos. 1 and 3.

1.         The Opposite Party number 2 is directed to replace defective Refrigerator of the complainant free of cost by a new Refrigerator of same model or of same value in complete working condition and devoid of any defects within 60 days from the date of this order. 

2.         The Opposite Party No. 2 is further directed that if the replacement will not be possible then to refund the total price paid by the complaint to the Opposite Party No. 1 for purchasing the defective refrigerator along with a simple interest at the rate of 6% per annum from the date of purchase till payment.

3.         The Opposite Party No. 2 is also directed to pay ₹2,000/- as litigation cost to the complainant within the abovementioned time period.

            Let a copy of this order be issued, on demand, to the parties of both sides free of cost. 

Dictated and corrected by me

            Member.