This complaint is filed by the Complainants u/S 12 of the Consumer Protection Act, 1986 alleging deficiency as well as unfair trade practice against the OPs as the OPs did not take any step to refund the entire amount along with interest as paid by them for purchasing one refrigerator till filing of this complaint.

The brief fact of the case of the Complainants is that the Complainant-1 had purchased one LG Single Door Refrigerator having 235 litres at the price of Rs.17,700/- manufactured by the OP-2 for her old aged parents in the name of her father i.e. in the name of the Complainant-2 in the month of August, 2018 from Sales Emporium Showroom, Baguiati, Kolkata by cash payment. After delivery of the product on the day of installation it was noticed that the Refrigerator has scratch mark in the front and side panel. The Complainant was advised by the LG installation personnel to report the same to the LG customer complaint cell. The Complainant-1 approached to the showroom and LG customer complaint cell on several occasions, but all went futile. Finally they sought for an amicable settlement to resolve the matter. The experience was so miserable that the Complainant-1 and her parents could not use this necessary appliance even after follow up with the company. The Complainant-1 has stated that the new refrigerator purchased is yet to be installed and the old refrigerator had already been handed over for ‘Buy Back’ for procuring the new one. The said product was delivered on 15.08.2018. When the packing of the refrigerator was opened it was noticed that the refrigerator has lot of scratches on the front side of the body and the Complainant informed the same to the OP-1, wherefrom it was purchased. The Complainant was told by the OP-1 that they will not be able to do anything and the service engineer from the OP-2 will visit and check. On 16.08.2018 one Mr. ArghyaDatta, being the service engineer of the OP-2 visited and tried his best, but the said scratches could not be removed and he suggested for replacement. After nine days i.e. on 25.08.2018 the replaced refrigerator arrived, but unfortunately the same was suffering from similar defect. On the next date i.e. 26.08.2018 Mr. ArghyaDatta visited the clicked some photographs of the same and informed the Complainant that he will visit again and try to remove the scratches with chemical, but he did not come and after long follow up over telephone Mr. Datta suggested to lodge a complaint through customer care of the OP-2 for another replacement since he has seen that the scratches of this type cannot be removed with chemical. Accordingly on 31.08.2018 the Complainant-1 lodged a complaint and informed Mr. Datta who assured the Complainant that he will also made a request for another replacement.Since there was no further updates from 31.08.2018 to 05.09.2018 the Complainant being compelled to lodge another complaint through e-mail with LG website on 06.09.2018. On the same date an acknowledgment was received from the OP-2 whereby the Complainant was informed that they referred the matter to the Area Service Manager Mr. Sandip Ghosh. After follow up for 2-3 days with Mr. Ghosh the Complainant was informed that the second replacement will take time and the Complainant shall have to wait for some time as the matter was referred to Ms. Debduti for further updates. Ultimately the second replacement arrived on 29.09.2018 having the same problem i.e. scratches on the front portion of the body and the Complainant contacted with Mr. Ghosh and informed him accordingly. The Complainant was informed that there are five pieces of refrigerator of the same model in their godown and all have the scratches and he suggested not to use the LG refrigerator as they will put request for refund of invoice amount which will take around one and half months and to receive the replaced piece with same problem. The Complainant had selected the first option i.e. refund of the invoice amount and requested Mr. Ghosh to expedite the matter. After lapse of one month finding no updates from the OPs the Complainant contacted with Mr. Ghosh and Ms. Debduti and Ms. Debduti informed that they have tried for refund of the amount on two times, but the head office of the OP-2 rejected the request for refund and suggested to choose similar capacity model of LG and also assured that in the event if the amount differed from the paid amount, they will absorb the excess amount. On 25.10.2018 the Complainant sent her choice and on the next date Ms. Debduti had informed that the said model is not available in their stock and provide three other model numbers amongst which the Complainant chose one model and upon receipt the same the Company informed that they have forwarded request for approval and also informed that for the chosen model extra money will be required or not that will be made known after approval. After lapse of one month as no update was received from the OPs, on 27.11.2018 the Complainant finding no other alternative lodged grievance before the grievance cell of the Company praying for either provide  the selected model or refund the full amount as paid with compensation. On 28.11.2018 the Complainant was informed by the Company that the matter is under proess with them and concerned person will contact her at the earliest. On 03.12.2018 Ms. Debduti called the Complainant and informed that the selected model is not available now and asked to choice another model. On 04.12.2018 further e-mail was sent by the Complainant and in response on 06.12.2018 Ms. Debduti asked to provide the documents for refund.  On 08.12.2018 the OP had informed through e-mail that the refund amount will be Rs.17,700/- i.e. the invoice amount.Through an e-mail dated 10.12.2018 the Complainant informed the OP that as the Complainant had to suffer difficulties and mental agony for more than 04 months, the Complainant demanded compensation amount along with the invoice amount. On 13.12.2018 the Complainant lodged complaint with the Consumer Affairs Department, which was forwarded to the Grievance Cell of the concerned Department. On 11.01.2019 the Complainant received a letter from the Assistant Director, Central Consumer Grievance Redressal Cell, Consumer Affairs Department for tripartite Meeting at their office on 22.01.2019 and accordingly on 22.01.2019 the said meeting was held, but except the Complainant no one was present and it was settled that the Complainant had already chose two separate model, Lg Electronics will provide either one model without any further cost within 45 days from today i.e. 22.01.2018, LG Electronics will provide necessary warranty of the new refrigerator from the date of installation of the same, the Complainant was requested to co-operate with the OP and inform the status at this end.

On 24.01.2019 the OP-2 informed that out of those models one model is not available, second model is available but without drawer and the third model is also available with drawer. The Complainant chose the model having drawer. On 02.02.2019 the Complainant did not receive the replaced piece with drawer, as it was suffering from similar problem as earlier i.e. scratches on the body of the front door. After discussion the Complainant was informed by Ms. Debduti over telephone that as early as possible fresh piece will be sent after due checking at their end, but no specific date was given. The matter was duly informed by the Complainant to the Assistant Director, Consumer Grievance Redressal Cell through an e-mail dated 04.02.2019. The OP-2 informed to the concerned Department that ‘we have processed replacement thrice but unfortunately released sets has the same problems. So the Management has decided to refund the invoice amount of Rs.17,700/- to the customer, for satisfaction of the customer.’ On 04.03.2019 the Complainant through an e-mail intimated the Assistant Director, CCGRC for providing a higher capacity model of 284 liter for amicable settlement since the Complainant and parents suffered a lot. Accordingly ON 05.03.2019 the Assistant Director requested the LG Company to provide higher capacity model without any extra cost to resolve the matter and on 11.03.2019 Ms. Debduti informed the Complainant that the said model is not available and offered to choose amongst other five models and the Complainant chose one model out of the same. After choosing one model from the list the Complainant confirmed the said model. The Complainant was requested by the Branch Service Manager that it would be better to check physically at the shop of the OP-2 before further replacement or can proceed for refund the purchase value, but in case of higher capacity model the Complainant has to pay the excess amount.Inspite of expiry of about 08 months the OPs with their ulterior motive did not supply the product. Finding no other alternative the Complainant set her mind to seek relief from the Ld. Forum and accordingly informed the Assistant Director, CCGRC vide e-mail dated 13.03.2019 and subsequently the Complainant was informed by the concerned Department to prefer a statutory complaint case under the provision of the Consumer Protection Act, 1986. Accordingly the Complainants have filed this complaint before the Ld. DCDRF, Barasat praying for direction upon the OPs to return the invoice amount of Rs.17,700/- along with interest, to pay compensation for Rs.50,000/-, Rs.50,000/- due to mental agony suffered, litigation cost and to take back the defective refrigerator immediately from the house of the Complainant so that a new refrigerator can be purchased.

This complaint was initially filed before the Ld. DCDRF, Barasat, where the complaint was admitted. Thereafter after establishment of the Addition District Consumer Disputes Redressal Forum (Commission as amended), at Rajarhat (Newtown) the complaint was transferred from Barasat to this Ld. Commission in view of the order passed by the Hon’ble SCDRC. From the record it is transpired that after admission of this complaint no notices were issued upon the OPs, hence this Ld. Commission was pleased to issue notices upon the OPs directing to file written version within 45 days from the date of receipt of the notice. On 04.02.2020 the Ld. Counsel for the OPs had appeared and prayed time for filing written version. On the next date none was present on behalf of the OPs, inspite of this the Ld. Commission was pleased to provide a scope to the OPs for filing written version subject to payment of Rs.1,000/- in total, out of which 50% be paid to the Complainant and the balance amount to the Consumer Legal Aid Account. As no written was not forthcoming from the end of the OPs on the next date also, the Ld. Commission was pleased to pass an order that the complaint will run exparte against the OPs and date was given to the Complainant for adducing evidence. By filing a petition the Complainants have prayed for adoption of the petition of complaint as the evidence of the Complainant. Upon considering the application we are of the opinion that as the complaint petition is filed by the Complainant supported by affidavit, hence there is no bar to treat the same as the evidence of the Complainant. Subsequently on the date of final argument the Ld. Counsel for the OPs have appeared and filed their Brief Notes of Argument for OP-1, 2 and 3.

We have carefully perused the entire record, documents as available, BNA of the OP-1, 2 and 3 and heard argument at length advanced by the Ld. Counsel for the Complainant and the OPs.

At the very outset we are to say that inspite of receipt of the notices as well as appearance the OPs chose not to contest the complaint by filing written version and for this reason this Ld. Commission was pleased to pass the order that the complaint will run exparte against the OPs.

In this respect we may mention to the judgment passed by the Hon’ble NCDRC in the case of M/s. Singla Builders & Promoters Limited vsAman Kumar Garg, reported in 2018 (1) CPR 314 (NC), decided on 16.10.2017, wherein it has been held that ‘non-filing of written version to complaint amounts to admission of allegations levelled against them in consumer complaint.’

The abovementioned Ruling can be applicable in the case in hand as in the instant complaint. Therefore in view of the said judgment the allegations as made out by the Complainant in the petition of complaint can be admitted as no rebuttal is forthcoming against such allegations.

It is seen by us that the Complainant-1 had purchased one LG Single Door Refrigerator having 235 litres at the price of Rs.17,700/- manufactured by the OP-2 in the month of August, 2018 from Sales Emporium Showroom, Baguiati, Kolkata by cash payment. After delivery of the product on the day of installation it was noticed that the Refrigerator had scratch mark in the front and side panel. The Complainant was advised by the LG installation personnel to report the same to the LG customer complaint cell. The Complainant-1 approached to the showroom and LG customer complaint cell on several occasions, but all went futile. Finally they sought for an amicable settlement to resolve the matter. The experience was so miserable that the Complainant-1 and her parents could not use this necessary appliance even after follow up with the company. The said refrigerator was replaced by the OPs on three occasions as per the objection of the Complainant that on each and every occasions the said appliance was suffering from some defects i.e. scratches on the front and side panel. As per request of the Complainant the Company personnel also visited and inspected the said refrigerator and they also have opined that the refrigerator is also suffering from some scratches.  Being aggrieved with such action of the OPs the Complainant had approached before the Assistant DirectorAssistant Director, CCGRC, Consumer Affairs Department, who tried to mitigate the dispute, but the same could not be resolved through mediation. It is seen by us that the OPs could not supply or delivered a defect free refrigerator of the model chose by the Complainant in all respect. Being frustrated the Complainant had sought for refund of the invoice amount along with interest. The Complainant primarily have agreed to refund the invoice amount without any interest, but ultimately the OPs did not take any step to the amount as paid by the Complainant for purchasing the refrigerator.Hence this complaint is initiated by the Complainants praying for certain reliefs as mentioned earlier.

Upon considering the abovementioned we are of the opinion that as the OPs could not deliver defect free refrigerator of their choice for a prolonged period, hence it was the duty and obligation of the OPs to refund the amount as paid by them for its purchase i.e. invoice amount. But without doing this the OPs have compelled the Complainants to run from pillar to post for redressal of their grievance. The documents reveal that the Complainant approached before the customer care of the OPs on several occasions through e-mail, went personally at the office of the OPs, approached before the Assistant Director, Assistant Director, CCGRC, Consumer Affairs Department by filing complaint for mitigation of the dispute through mediation and at last filed this complaint before the Consumer Forum (Commission as amended). Since its purchase and payment on 14.08.2018 till date the OPs have miserably failed either to replace the defect refrigerator with a new defect free refrigerator in all respect or refund the invoice amount to the Complainants. During argument the Ld. Counsel for the Complainant has submitted during this period the Complainant had already purchased a new refrigerator of another brand as the refrigerator is an essential appliance of every day’s life. In the prayer portion the Complainants have prayed for refund of the invoice amount along with interest. It is also evident to us that the defective refrigerator is still lying at the house of the Complainants and from the order of the Assistant Director, CCGRC, Consumer Affairs Department that the Complainant did not use the said defective refrigerator for a single day. Therefore in our opinion the OPs shall refund the invoice amount of Rs.17,700/- to the Complainants. Admittedly since 14.08.2018 the said amount is still lying with the OPs, therefore the OPs are under the obligation to pay interest on the said amount from the date of receipt of the amount till entire refund. It is also true that due to inaction and deficient service of the OPs that Complainants have approached before the Court of Law by filing this complaint and for this proceeding they have to incur some expenses and for this reason the Complainants are entitled to get litigation cost from the OPs.

Going by the foregoing discussion hence it is ordered that the Consumer Complaint being no-RBT/CC/04/2020 is thus allowed exparte against the OPs with cost. The OPs are directed either jointly or severally to refund the amount of Rs.17,700/- to the Complainants along with interest @10% p.a. for the period from 14.09.2018 till entire realization of the said amount within 45 days from the date of passing of this judgment. The OPs are directed either jointly or severally to pay litigation cost for Rs.5,000/-to the Complainants within 45 days from the date of passing this judgment, in default the Complainants will be at liberty to put the entire decree in execution as per provisions of law.

Let plain copy of this final order be given to the parties free of cost as per CPR.

      Dictated and corrected by

[HON'BLE MRS. Silpi Majumder]

MEMBER