Haryana

Panchkula

CC/302/2020

VASIM AHMAND. - Complainant(s)

Versus

SAMSUNG . - Opp.Party(s)

IN PERSON.

07 Aug 2023

ORDER

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA

 

                                                       

Consumer Complaint No	:	302 of 2020
Date of Institution	:	30.09.2020
Date of Decision	:	07.08.2023

 

 

 

 

 

Vasim Ahmad S/o Sh. Moh. Ahmad, R/o House No.51, Village Railly, Sector-12A, Panchkula, Haryana.

    ..….Complainant

Versus                                                                  

1.     Samsung, Registered office address: 6^th Floor, DLF Centre, Sansad Marg, New Delhi-110001,

2.     M/s Sargam India Electronics Pvt. Ltd. SCO-54, Sector-15, Panchkula, Haryana-134109

        M/s Sargam India Electronics Pvt. Ltd. SCO-54, Sector-11, Panchkula, Haryana-134109

        M/s Sargam India Electronics Pvt. Ltd. Ground Floor Near Modern Radio Complex, Bal Bhawan Road, Polytechnic Road, Adjoining Corporation Bank Ambala, Haryana-134003.    

3.     Bajaj Finance Limited, having its corporate office at 6^th Floor, Bajaj Finserve Corporate Office, OFF Pune- Ahmadnagar Road, Viman Nagar, Pune-411014.

                                                                        ……Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

 

Before:              Sh. Satpal, President.

Dr. Sushma Garg, Member

Dr. Barhm Parkash Yadav, Member

 

For the Parties:   Sh. Harish Marhia, Advocate for the complainant.

                        Ms. Jyoti Rani, Advocate, counsel for OP No.1.

                        OP No.2 already ex-parte vide order dated 04.3.2022.

                        Notice not issued to OP No.3.

 

                       

ORDER

(Satpal, President)

 

1.The brief facts, as alleged of the present complaint are that on 14.07.2020, the complainant had purchased an “Samsung-LED, size-43 inches, bearing no.UA3T5500” from the OP No.2 vide invoice no. PANCH-20-953 dated 14.07.2020. The complainant had paid Rs. 9,259/- in cash to the OP No.2 against purchase of the aforesaid Samsung LED and the balance amount of Rs.26,741/- was got financed from Bajaj Finance, which was supposed to be repaid by the complainant to the Bajaj Finance Company(OP No.3) through 14 EMIS of Rs.1,990/-. Thus, the total cost of the said Samsung LED was Rs.37,119/-. The said LED  was functioning  in a good manner till 03.08.2020 but thereafter, the said electronic product got out of order and the picture along with its colour were getting a red line vertically, just within one month of its purchase. The complainant made a complaint about the same to the OP No.2, upon which technicians were sent by the OP No.2, who repaired the said LED but after the said repair done by the technicians sent by the OP No.2, the product became more problematic. The colour of the screen got blurred and the clarity of the picture got very down, speakers were not working properly and its buttons and the remote also stopped working from that very day. The complainant visited the premises of the OP no.2 several times and made various complaints to OPs No.1 & 2 and made several phone calls at their customer care nos. The said product in question was got repaired 4-5 times by the technicians, as sent by the Ops No.1 & 2 but to no avail and since then the said LED is lying worthless and it has no use for the complainant as none of the Ops No.1 & 2 are paying any heed to the requests of the complainant. It is alleged that even the technicians of the OPs No.1 & 2 have told the complainant that the said LED in question is having manufacturing defect and cannot be repaired. It is stated that the said LED is out of order and has become a piece of junkyard for the complainant now. The Ops No. 1 & 2 have indulged in unfair trade practice and rendered deficient service to the complainant.  Due to the act and conduct of the OPs, the complainant has suffered mental agony, harassment and financially; hence, the present complaint.

2.Upon notice, OP No.1 appeared through counsel and filed reply by raising preliminary objection qua complaint is not maintainable as the complainant has concealed the true material facts. It is submitted that the complainant has alleged manufacturing defects in the product, which cannot be determined on the basis of mere submissions of the complainant as the same needs a proper analysis in the shape of expert report to confirm the same. It is submitted that an expert opinion is mandatory under Section 38(2)(c) of CP Act to prove the allegations as alleged by the complainant. In the absence of any technical report on record, the complaint is liable to be dismissed. It is submitted that the product was duly checked by the engineer of the OP, who found no defect in the product. It is submitted that the complainant had approached the service centre of OP on 30.08.2020 vide job-sheet no.4308956494, wherein the problem of line of display was reported. The panel of the product was replaced by making the product functional in a proper manner. After that, the complainant again approached the answering company on 21.09.2020 vide call no.4310495077 and reported LED BLINKING WHILE STARTING problem in his product. Again the engineer of the service center visited the premises of complainant and checked the product but no such defect was found in the product. In fact, the said alleged display blinking issue while starting of product is not a defect and same is common in all the units. The engineer of answering company duly confirmed/verified the said fact from the factory that the display blinking at starting is a normal process of starting of product and is not a defect. The said alleged blinking while starting is not a defect and is a normal starting process of product. It is also submitted that answering company provides one year warranty on the product, warranty means in case of any problem with the product; the product will be repaired or its parts will be replaced as per warranty policy. The reliefs sought by the complainant in the present complaint, are beyond the agreed terms & conditions of warranty and also outside the ambit of Section 39(1) of the Act. It is submitted that the complainant has sought the refund of price of the product along with compensation and costs of litigation, which are clearly beyond the expressed terms and conditions of warranty. On merits, pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OP No.1 and as such, the complaint of the complainant is liable to be dismissed.

                 Notice was issued to the OP No.2 through registered post, which was not received back either served or unserved despite the expiry of 30 days from the issuance of notices to OP No.2; hence, it was deemed to be served and thus, due to non appearance of OP No.2, it was proceeded ex-parte by this Commission vide its order dated 04.03.2022.

                Notice was not ordered to be issued against OP No.3 as per dated 06.10.2020.

3.The learned counsel for the complainant has tendered affidavit as Annexure C-A along with document as Annexure C-1 and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP No.1 has tendered affidavit Annexure R-A along with documents Annexure R-1 to R-6 and closed the evidence.

4. We have heard the learned counsels for the complainant and the learned counsel for OP No.1 and gone through the entire record available on file including written arguments filed by the complainant, minutely and carefully.

5.During arguments, the learned counsel for the complainant reiterating the averments as made in the complaint as also in the affidavit (Annexure C-A) contended that problem in the display of the LED in question, which was purchased by the complainant from OP No.2 vide tax invoice dated 14.07.2020(Annexure C-1) amounting to Rs.36,000/-, had stared just after 3 three weeks of its purchase, which had necessitated the replacement of its panel by the technical persons of OP No.1 in month of August, 2020. It is contended that the defect in the LED were not completely rectified as the problem of blinking in the display of LED in question remained unresolved. The learned counsel contended that LED in question is having a manufacturing defect on account of which the complainant is facing the blinking issue. The learned counsel stated that financed amount has been cleared by the complainant and now nothing is payable to Bajaj Finance Limited(OP No.3). Concluding the arguments, the learned counsel has prayed for refund of the purchase price of the LED in question along with compensation on account of mental agony, harassment and litigation charges.

6.The OP No.1 has contested the complaint by raising several preliminary objections as well as on merits in its written statement. In preliminary objections, it is submitted that the complainant has not approached the commission with clean hands as he has concealed the true and material facts. Further, it is alleged that there is no manufacturing defect in the said handset; hence, no cause of action has arisen in favour of the complainant. The learned counsel for OP No.1 vehemently argued that no expert opinion has been placed on record by the complainant to substantiate his contention that the LED was having manufacturing defect in it. It is contended that the onus to prove the manufacturing defects was on the complainant. In this regard, the learned counsel has placed reliance upon the following case laws:-

1. Hero Moto Corp Ltd. Vs. Gaurav Panday & Anr. in first appeal no.235 of 2013 decided o 24.04.2013(SCDRC, Uttarakhand).

 

2. Chandeshwar Kumar Vs. Tata Engineering Locomotive Co.Ltd & Anr., I(2007) CPJ 2(NC).

 

3. Lovely Autos Vs. Harmesh  Lal & Anr., I(2007) CPJ 312(NC).

 

4. Dr. K.Kumar Advisor(Engineering)Maruti Udyog Limited Vs. Dr. A.S.Naryana Rao & Anr.,I(2010) CPJ 19(NC).

 

5. Classic Automobiles Vs. Nand Mishra & Anr. reported as 2010(I) CPJ 235(NC).

 

6. Sushil Automobiles Ltd. Vs. Dr. Birendra Narain & Ors.  Reported as 3(2010) CPJ 130(NC)-Sushila Automobiles Ltd. Vs. Dr. Birendra Narain & Ors.

 

 

 

 

7.Further, it is contended that a consumer cannot claim either replacement or refund against the terms of the warranty. Further, it is contended that the manufacturer is not liable to replace or refund the price, if the defects can be removed by replacing the defective part. In this regard, the learned counsel has placed reliance upon the following case laws:-

1. Maruti Udyog Limited Vs. P.Rathnadurai, reported as 2004(II) CPJ 563(NC).
2. Dr. Hema Vasantilal Dakoria Vs. Bajaj Auto Ltd. & Ors. reported at II(2005) CPJ 102(NC).
3. Stereocraft Vs. Monotype India Ltd. New Delhi(2000) NCJ (59) SCC.

8.On merits, the learned counsel reiterating the facts as alleged in the written statement has contended that LED is working perfectly fine as no defect was found on it by its authorized service centre. It is vehemently argued that the alleged blinking issue is not a defect as alleged by the complainant because the same is the normal feature of the LED in question. In this regard, the learned counsel invited our attention towards the technical report(Annexure R-4) and Annexure R-5, wherein it is stated that the LED blinking is common in all the sets of this model and that there was no panel defect in the LED in question. Concluding the arguments, the learned counsel has prayed for dismissal of the complaint being frivolous, baseless and meritless.

9.The aforementioned contentions raised by OP No.1 qua the concealment of the facts etc are not tenable as it has not been clarified as to which facts have been concealed by the complainant. Further, the law laid down in the cited case laws is not disputed but the same is not applicable to the facts of the present case as the LED in question is having a blinking issue despite the replacement of its panel. As per job-sheet dated 30.08.2020(Annexure R-2), panel of the LED was found defective and accordingly, the same was replaced on 31.08.2022, as per said job-sheet(Annexure R-2), by the engineer, namely, Sh.Kuldeep Singh Longia. The LED in question was again checked by the said engineer as per job-sheet dated 22.09.2020(Annexure R-3), who found the blinking issue in it but surprisingly, the said LED has been reported having no issue. As per the said job-sheet dated 22.09.2020(Annexure R-3), the report of NDF i.e. “No defect found” was made on the basis of email confirmation as received from Atul Bansal. Pertinently, the LED blinking issue is not disputed by OP No.1 and the same is admitted in its written statement as well as vide technical report(Annexure R-4). The OP No.1 has placed no documentary evidence in the shape of affidavit of said Atul Bansal as well as Kuldeep Singh Longia, who has classified the “blinking issue” under the category of “no defect found”(NDF). In our considered opinion, by no stretch of imagination, the blinking issue in the display of the LED can be considered as a normal feature. Even the photos placed on record as Annexure R-6 & Annexure R-6(colly) have been found blurred and thus, the blinking issue of the LED in question cannot be described as a normal feature. In our considered opinion, the complainant has been prevented from the flawless watching/use of LED TV because of its blinking issue. Therefore, the LED in question is found to have a manufacturing defect in it and accordingly, both the OPs i.e. OPs No.1 & 2 are liable, jointly and severally, to compensate the complainant for their deficient services rendered to him.

10.In relief, it is found that the LED in question was purchased by the complainant vide invoice(Annexure C-1) amounting to Rs. 36,000/-. In our opinion, it would meet the ends of justice, in case, the complainant is allowed the refund of purchase price of the LED in question. Apart from it, the complainant is also entitled to be duly compensated on account of mental agony and harassment as well as litigation charges.

11.As a sequel to the above discussion, we partly allow the present complaint with the following directions to the OPs No.1 & 2:-

1. To refund a sum of Rs.36,000/- to the complainant, along with interest @ 9% per annum(S.I)w.e.f. the date of filing of the complaint till its realization subject to return of  LED to OP No.1 or its authorized representative or OP No.2. The OP No.1 & OP No.2 are directed to collect the LED in question from the complainant.
2. To pay a sum of Rs.10,000/- to the complainant on account of mental agony and harassment suffered by him.
3. To pay an amount of Rs.5,500/- to the complainant on account of litigation charges.

 

12.The OPs No.1 & 2 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, 2019 against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on: 07.08.2023

 

 

 

        Dr.Barhm Parkash Yadav         Dr.Sushma Garg            Satpal

                Member                             Member                  President

 

Note: Each and every page of this order has been duly signed by me.

 

                                                Satpal

                                               President