Order-20.
Date-17/04/2015.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant by filing this complaint has submitted that she purchased one washing machine from the OP2, manufactured by the OP1 for her personal and domestic purpose making a payment of Rs.20,200/- on 02-11-2012 and accordingly, invoice receipt was issued on that date and at the time of purchase it was specifically stated by the OP2 that washing machine manufactured by the OP1 shall be in good condition and having a good reputation and feed back from the valuable customers of the OP2 and being allured by the OP2 complainant agreed to purchase the washing machine having warranty of 24 months provided by the OP1 from the date of purchase but within one week from the date of purchase the said washing machine showed different types of problem i.e. after washing the cloths, the dirty particles remains intact over the cleaned cloths part by part and also shocking electric inside the body of the washing machine and to that effect, the complainant duly lodged complaint to the OPs1 and 2 over phone and after expiry of few months the authorized service personnel attended to the residence of the complainant to make the defect free of the washing machine but ultimately failed. Thereafter, on several occasions complainant lodged the complaint six to seven times and service personnel attended to rectify the defect but ultimately they failed to rectify though there was service warranty and even after attending the service personal to rectify the defect of the washing machine in six to seven times no paper or job sheet was handed over to the complainant and no paper was given about their repairing work.
Subsequently, OP1 through their authorized service centre duly collected the washing machine from the residence of the complainant to rectify the defect at their workshop since the OPs failed to rectify the defect after repeated attempt made by the service personnel and accordingly, on 20-04-2013 OP1 return back the washing machine to the complainant with a promise that the3 problem of the washing machine has been rectified permanently and even if there shall be any problem in future on that event one service personnel namely Kallol Mandol shall have to see the problem and in that case the machine shall be replaced by a new one but within a week from the date of delivery of the washing machine the problem started again as it was before, when complainant contacted with Kallol Mandol, the direct employee of the manufacturer with a request to keep his words to replace the washing machine by a new one since the problem is remain same but that time the said employee Kallol Mandol behaved in a rude manner and also defect has not be rectified and no replacement has also been made and it is a completely a manufacturing defect which has been proved and subsequently, complainant handed over written complaint to the service personnel Paltu Banerjee who duly received and acknowledged the letter but no effective steps has been taken by the OPs even after repeated complaint but the complainant with a hope to use the washing machine purchased the same by spending huge amount but due to improper service and due to deficiency in service and practically for negligence and deficient manner of service and also for deceitful manner of business run by the OP complainant suffered mentally and physically and fact remains during warranty period they have not given proper service or have not rectified the defective washing machine as service provider and also a seller and manufacturer. Finding no other alternative complainant lodged a written complaint to the CA&FBP for redressal but due to serious non-cooperation and non-appearance on the part of the OPs the mediation was failed and complainant was asked to file this Forum and accordingly finding no other alternative complainant compelled to file this case before this Forum.
On the other hand OP1 by filing written version submitted that entire allegation of the complainant is false. OP as per warranty provision provided service to the complainant and there was no inherent manufacturing defect in the said washing machine and entire allegation of the complainant is false and fabricated. OP attended the said washing machine as per the need and repaired the same and the complainant enjoyed the said washing machine for considerable period of time but making no complaint as such it is crystal clear that it had no inherent defect and for which the complaint should be dismissed.
On the other hand, OP2 by filing this complaint submitted that the washing machine in question purchased by the complainant on 02-11-2012 from the OP2 and it was manufactured by the OP1 and since then the washing machine has been used by the complainant for a long period and using the said washing machine till date with her full satisfaction and thereafter, complainant decided to get replace the said washing machine being some false allegation and in fact, complainant made no complaint in writing or by any means to the OP and for about 2 years complainant used the same and when it was reported to the OP, OP as usual sent their technician and given proper services and moreover, during warranty period it is the liability of the OP1, the manufacturer but the seller will not be liable for any complaint whatsoever and all other allegations against the OP1 is false and fabricated for which the complaint should be dismissed.
Decision with Reasons
On proper consideration of the argument as advanced by the complainant and also on behalf of the Ld. Lawyer of the OPs and also considering the document of the OP2 we are convinced that complainant purchased a washing machine Model No.Samsung WA85BWPEH 6.5 Kg Top Loading Washing Machine from Great Eastern Trading Company, OP2 which is manufactured by Samsung India Ltd. for the purpose of washing clothes of his family with short time and easy process. No doubt complainant paid a sum of Rs.20,200/- for purchasing the same and it was actually purchased on 02-11-2012 from the OP2 and as per warranty card serial No.2167 issued by Samsung India Pvt. Ltd.. It is found that warranty was for the period of 24 months comprehensive so, it is clear that warranty validity was from 02-11-2012 go 02-11-2014.
It is undisputed fact that in the meantime the same was repaired by the OP1’s technician after taking it away into their service centre but even though the problem is there which is being faced by the complainant but most interesting factor is that OP1 or 2 have failed to produce any certificate to the effect that after repairing they found that there was no manufacturing defect and they produced no certificate to show the satisfaction about the function of the said washing machine and it is settled principle of law that it is the duty of the manufacturer to prove that after attending the complaint of the complainant they were satisfied that there was no defect and they repaired it or they were able to satisfy the complainant about the functioning of the machine in this regard. There was no such document produced by the OP which indicates that even after repair of the same OP did not handover paper to the complainant and did not secure any satisfaction of the complainant about running of the machine. No doubt complaint was made again and again and OP admitted that their technician went there and repaired it but no job card or job sheet was produced by the OP to show that in all cases they able to satisfy the complainant but considering that act on the part of the OPs we are convinced that now-a-days it is become a practice of the service centre not to give any receipt in respect of the electronic machine like air-conditioner, washing machine and other electronic goods and this procedure is adopted by the manufacturer and the sellers only to say that at any point of time no complaint was made by the customer and this practice is followed by the Samsung and their seller and service centre all other the West Bengal. Fact remains in respect of the washing machine of Samsung there are several complaints, if actually OPs were clear in their mind and in their trade they ought to have file document that they attended and satisfied the complainant about the smooth functioning of the said washing machine but that has not been produced, OP has admitted that their staff attended the machine as and when complaint was made but no document was produced about the satisfaction of the customer.
Truth is that all over the West Bengal manufacturer of different items are not in a mood to meet the customer satisfaction against any complaint for any unit or goods and they are not in a mood to give job card etc. on the ground if again and again job cards are issued in respect of same product in that case in future it would be proved that manufacturing defect of the item is there in respect of particular item, it invariably bore some defects and in this case same incident happened and only to suppress the deceitful manner of act on the part of the OP, OP only denied all the allegations and stated that the said machine is free from all defects but no certificate has been issued by the manufacturer in this regard after repairing or at the time of purchase by the complainant.
In this regard it is to be mentioned that if any machine is sold by any seller in that case at the time of selling the same the manufacturer’s certificate to that effect that the particular item or machine sold bears no manufacturing defect and it is duly inspected by the company and certificate shall be handed over to the purchaser but in this case no such certificate was ever issued by the OP1 or supplied by the OP2, so, it is clear that about the defect of said machine there is no certificate issued by the OP1 or by the OP2 so, the allegation of the complainant in this regard regarding defect of goods is no doubt more believable than the defence as taken by the OPs. At the same time manufacturing company has failed to prove that the defects as faced by the complainant was never found by them even after operating the said machine in presence of the complainant. No such job card or satisfaction report is produced by the OPs for which we are convinced that the said machine purchased by the complainant from the OP2 manufactured by OP1 bear several defects for which complainant did not get services even after payment of Rs.20,200/- as price of the said washing machine. So, invariably it is no doubt a negligent and deficient manner of service at the same time the defect is found in the said machine which is still in existence. It is proved that the OP has failed to produce any certificate from their technician who examined the said machine time to time as per complaint of the complainant and it was not handed over to the complainant after operating the same in presence of the complainant and getting satisfaction certificate from the complainant. Considering all the above facts and circumstances, allegations as made by the complainant are no doubt proved against OPs. Fact remains OP2 is dealer of the OP1 and invariably as per provision of law dealer is also equally liable for any sort of defect in view of the fact there is a contract between the seller and manufacturer about selling of the same and dealer must have to sell such goods to the consumers which is free from all defects. In the present case they did not supply such certificate from the manufacturer at the same time by the seller that the said machine is free from any manufacturing defect but it is must in all cases. So, we are convinced that OPs1 and 2 are equally liable for compensating the complainant and no doubt complainant has been harassed by the OPs again and again and also deceived by the OPs for not giving any certificate in support of the said machine status as free from any defect and running of all the machine as usually and any certificate of the customer or the consumer after repairing of the same by the OP2’s technician, so, negligence, deficiency and deceitful manner of practice on the part of the OP is well proved for which complaint succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest against the OPs with a cost of Rs.10,000/-.
OPs are jointly and severally directed either to replace a new washing machine of same model in place of the old one at their own cost in the house of the complainant or to repay Rs.20,200/- (price of the said machine) after taking back the defective machine from the house of the complainant at their own cost within 30 days from the date of this order and also shall have to pay a compensation of Rs.8,000/- to the complainant for causing mental pain and agony and for deceiving the complainant in such a manner and the said amount shall be paid within 15 days from the date of expiry of one month from the date of this order and if replacement is not made by the OPs.
OPs are jointly and severally directed to comply the order within the specified time failing which penal interest at the rateRs.200/- shall be assessed over the same and if it is collected it shall; be deposited to this Forum again and even then if it is not complied penal action u/s.27 of the C.P. Act shall be started.
