Delhi

West Delhi

CC/21/397

SHAKUNTLA DEVI - Complainant(s)

Versus

SABHARWAL AIR CONDITIONER & ORS. - Opp.Party(s)

10 Nov 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-III: WEST

GOVT. OF NCT OF DELHI

C-BLOCK, COMMUNITY CENTRE, PANKHA ROAD, JANAK PURI

NEW DELHI

 

 

C.C. No. 397/21

In the matter of:

 

SHAKUNTLA DEVI 

T-650, G/A2, KAUR SINGH CHOUK,

BALJIT NAGAR, NEW DELHI                                                   ...COMPLAINANT

VERSUS

 

SABHARWAL AIR CONDITIONER

2151/17 CA/3A, NEW PATEL NAGAR,

OPP. SHADIPUR DEPOT, METRO PILLAR NO. 253,

NEW DELHI                                                                        ...OPP. PARTY NO.1

 

BHAGWATI PRODUCTS PVT LTD

SP1.1 INDUSTRIAL AREA KAROLI

TAPUKARA EXTN. BHIWADI,

ALWAR, RAJASTHAN-301707                                                  ...OPP PARTY NO.2

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

17.11.2022 31.10.2022 10.11.2022

 

 

Ms Sonica Mehrotra, President

Ms Richa Jindal, Member (Female)

Mr Anil Kumar Koushal, Member (General)

Order passed byMs Richa Jindal, Member

 

 

 

 

 

ORDER

1. The complainant filed the present complaint with respect to deficient services provided by the opposite party/OP as well as towards the mental agony, harassment, pain and other sufferings to the complainant received by the OP. The facts leading to the present matter are as follows:

The above-named complainant most respectfully submitted as under:

1. That on 23.12.2020 the Complainant purchased a 43 Inch LED TV Model REALME TV-43 manufactured by OP 1 from the opposite party No.2 for an amount of Rs.23,500/- including GST etc.

 

2. That on 16.07.2021 suddenly the aforesaid T.V. functioning stopped and, in this regard, the complainant made a telephonic complaint to the customer care of OP 2.

 

3. Thereafter on 18.08.2021 the Engineer of the opposite party 2 visited the house of the complainant and checked the LED and told the complainant that since the display penal board, speaker and some other parts of the TV were damaged/having problems the parts being of warranty her LED will be replaced and thereafter he went away from the house of the complainant and on the next day itself, the complainant received a text message sent by the opposite party on 19.08.2021 subject that her LED would be repaired on 19/08/2021.

 

4. Thereafter on a number of times, the complainant kept on making a complaint to the opposite party through phone to get her LED replaced or repaired but despite a lapse of three months till date, no action was taken on the complaint of the complainant as neither the opposite parties have repaired the LED of the complainant nor they replaced the same and the LED of the complainant is still lying in the house of the complainant and is not working and because of the same, the complainant had to face huge mental pain, agony and unnecessary harassment.

 

 

5. The aforesaid act and conduct of the opposite party are illegal, unlawful, arbitrary and deficient in service and a big fraud with the complainant, which compelled the complainant to file the present complaint.

 

6. It is a clear case of unfair trade practice and gross deficiency in providing the services in the stipulated time, which is 3 working days, but the OP’s Service Center failed to attend to the complaint even after a lapse of 6 working days, which has led to the financial loss of about Rs.3000/- in addition to Rs.2600/- as repairing charges Due to the unethical behaviour, uncooperative attitude, and unfair trade practices, the complainant felt totally harassed and had to resort to this extreme step to approach this commission via filing a present complaint and sought relief of refund of the cost of T.V. i.e. 23,500/- with a compensation of Rs. 50,000/- for the mental agony and harassment.

 

2. Accordingly, on 6/4/2022 after hearing arguments on admission, notice was issued returnable on 18/07/2022, but none appeared on behalf of OPs despite service of notice. Even the tracking report of the duly receipt of the Notice of the same has been placed on record.

 

3. The OPs were also served through court notice and the OP didn’t turn up and ignored the court notice. This act of the OPs clearly shows that the OPs are avoiding/disrespecting the court proceedings although they have been duly served.

 

4. In M/s. Madan and Co. Vs. Wazir Jaivir Chand AIR 1989 SCC 630, the Hon’ble Supreme Court has held “That if a registered letter addressed to the person at his residential address does not get served in the normal course and is returned, it can only be attributed to the addressee's conduct. If he is staying away for some time all that he has to do is to leave necessary instructions with the postal authorities either to detain the letters addressed to him for some time until he returns or to forward them to the address where he has gone or to deliver them to some other person authorized by him.” Further, Hon’ble Apex Court in State of M.P. Vs. Hira Lal &Ors. (1996) 7 SCC 523 has held that notices returned with postal remarks “Not available in the House”, “House Locked” and “Shop Closed", must be deemed that the notices have been served on the OPs. Accordingly, the OP proceeded ex parte on 18-07-2022.

 

5. The complainant filed exparte evidence by way of an affidavit as well as written arguments on 31-10-2022 testifying all the facts stated in the complaint along with documents exhibit CW-1/1 to CW-1/5 affirming the facts alleged in the complaint. The complainant has filed his evidence by way of his affidavit and he has proved the following documents.:

 

1. Original copy of the Bill is exhibited herewith as Ex.CW-1/1.
2. Copy of details of the LED T.V. affixed on the carton /box is exhibited herewith as Ex.CW-1/2.
3. Copy of Product Warranty Card is exhibited herewith as Ex.CW-1/3.
4. Screenshot of the Test message is exhibited as Ex.CW-1/4.
5. The pen drive/CD containing the recording/conversation of the deponent with the customer care of Realme is exhibited herewith as Ex.CW 1/5.

 

6. Oral arguments were heard on 31/10/2022. We have carefully gone through the record of the case and have heard submissions from the complainant.

 

7. The said television set allegedly became defunct within seven months of its purchase/use and so a complaint was lodged in this regard on 16-07-2021.  Based on such complaint, one service technician visited the residence of the Complainant on 18-08-2021 and after checking the television set, he opined that main board of the said television set needed replacement due to manufacturing defect.  It is further stated that on 18-08-2021, the Engineer of the OP visited the house of the complainant and checked the LED and told the complainant that the display penal board, speaker and some other parts of the TV are damaged/having problems and told the complainant that her LED will be replaced and thereafter he went away from the house of the complainant but very next day the Complainant received a message of TV having been repaired on 19/08/2021.

 

8. Thus, in our considered opinion, each case ought to be judged based on the peculiar facts and circumstances of that case. There cannot be any dispute that the initial burden is on the complainant to prove that they fall within the definition of consumer. It is pertinent to mention here that Opposite Party, who is a contesting party, did not choose to appear or file its defence before this Commission. In other words, OPs not deny any of the claims made by the complainant. Based on the material on record before this Commission, it proceeded to decide on merits.

 

9. The testimony of CW1 has gone unrebutted and unchallenged. The complainant has proved on record the relevant documents in support of its case.

 

10. There is nothing on record to disbelieve the sworn testimony of the Complainant or the claim of the complainant. The complaint of the complainant is within the time limit since the opposite party vide its letter dated 16.07.2021 had made the complaint with regard to the defects in the said television in question from the complainant and also informed that the OP did not provide service for removal of defects. Therefore, considering the totality of the facts and circumstances and because of the unchallenged, uncontroverted and unrebutted testimony of the Complainant and the documents proved on record. In view of the same, it cannot be said that the complainant does not fall within the definition of the term consumer, as envisaged under Section 2(1)(d) of the Act.
11. So, basically the dispute boils down to this: whether the complainant is liable to have defective television set, replaced or its price refunded or not.
12. According to Cambridge Dictionary, 'Warranty' denotes a written promise from a company to repair or replace a product that develops a fault within a particular period of time....'.  The Oxford Learner's Dictionaries describes 'warranty' as "a written agreement in which a company selling something promises to repair or replace it if there is a problem within a particular period of time"
13. Present case, the subject LED was covered under warranty of buyer for all parts and therefore, it is the settled position of law that in case of a manufacturing defect, irrespective of the stipulations contained in the warranty card, it is obligatory on the part of the manufacturer/seller/service centres to replace the defective product with a new defect-free product of similar specification.

 

14.  The OPs are directed jointly and severally to refund the price of the T.V. set i.e. Rs. 23,500/- to the OP no. 1 within 30 days and to pay Rs.  5,000/- as compensation for mental agony & physical harassment suffered by the complainant.  
15. Let the order be complied with by OPs within 30 days from the date of receipt of the copy of this order.
16. Let a copy of this order be sent to each party free of cost after receiving the application for the certified copy as per the direction received from the Hon’ble State Commission.
17. File be consigned to record room.

 

18.  Announced on 10/11/2022.

 

 

 

Richa Jindal                              Anil Kumar Koushal                   Sonica Mehrotra

(Member)                                            (Member)                         (President)