DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

BATHINDA

C.C. No. 260 of 22-07-2015

Decided on : 20-10-2016

Hansraj Jindal S/o Sh. Charanjee Lal Jindal R/o #3255/A Jindal Market, Behind Bus Stand, Bathinda.

…...Complainant

Versus

1. Samsung India Electronics Pvt. Ltd., B-1, Sector 81, Phase-2, Noida District Gautam Budh Singh Nagar (U.P) through its MD

2. Samsung Service Centre, Dr. Bakshi Wali Road, Bibi Wala Road, Street No. 3, Bathinda, through its Partners/Prop/Manager (deleted vide order dated 24-7-2015)

3. Maya Electronics, St. No 2, Kanhiya Nagar, Dr. Kishori Ram Road, Bathinda, through its Partners Sh. Ashok Kumar & Ram Kumar

   .......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986.

Quorum :

Sh. M.P.Singh. Pahwa, President

Sh. Jarnail Singh, Member

Present :

For the complainant : Sh. Rohit Goyal, Advocate.

For the opposite parties : Sh. Kuljit Pal Sharma, Advocate, for OP No. 1

OP No. 3 exparte

OP No. 2 deleted

O R D E R

M. P. Singh Pahwa, President

1. Hansraj Jindal, complainant (here-in-after referred to as 'complainant') has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to as 'Act') against Samsung India Electronics Pvt. Ltd., and another (here-in-after referred to as 'opposite parties).

2. Briefly stated, the case of the complainant is that opposite party No. 1 is manufacturer having its offices, agents, dealers all over India including opposite party No. 2 at Bathinda. The opposite party No. 3 is authorized agent and dealer of opposite party No. 1 for the sale of its products in this area. The complainant was in dire need of a big frost free inverter type, less electricity consuming Refrigerator, having good capacity of storage of goods for using the same at his residence for personal use. The opposite parties allured him to purchase refrigerator of their company claiming the same to be best double door refrigerator in the world having 321 Ltr capacity, frost free, electricity saver compressor of inverter technology. The opposite parties further assured for full guarantee for all types of defects and to provide best service after sale. At the time of sale of refrigerator, the opposite parties had given 10 years warranty for all of its parts. It was claimed that it is manufactured with such a latest technology which is free from any type of trouble and it also saves energy to a great extent as compared to all other brands of other companies. Its performance is long lasting and is free from wear and tear due to inverter technology of its compressor. The complainant purchased one Samsung Refrigerator vide bill No. 1645 dated 28-7-2014 from opposite party No. 3 who is authorized agent and dealer of opposite party No. 1 at Bathinda, on cash payment of Rs. 33,000/-.

3. It is alleged that within fortnight of purchase i.e. in the evening of 13-8-2014, all of sudden, the said refrigerator stopped working and cooling. On the same day, he lodged complaint with opposite party No. 3 on his phone and he assured him to send competent person and would himself inform opposite party No. 2. On 14-8-2014, the complainant lodged complaint No. 8466845817. Thereafter representative of the opposite parties came to the resident of the complainant and checked the refrigerator but he was unable to understand the problem. Next day two more persons came from the office of opposite party No. 2 to check the refrigerator and after checking, it was told that there was some problem with the electronic device of the refrigerator. It has been changed and it was told to the complainant that it will not give problem in future. The refrigerator again started giving problem in September, 2014. Again complaint was registered on the same complaint number which was provided in the month of August. The problem was solved on 25-9-2014.

4. It is also pleaded that refrigerator was not put to load due to winter season. In the summer season, refrigerator started giving problem again and stopped working in the month of June, 2015. The complaint was again got registered on the same toll free number which was earlier given to the complainant. Engineer namely Jassi came to the residence of the complainant to check refrigerator and told that one phase of the refrigerator out of three phases has stopped working and the oil from the compressor has leaked out which will take one week for repair. It was also told that there is some hole in the compressor due to which gas has leaked out of the compressor. The same requires to be refilled. It was also told that the hole in the compressor was a manufacturing defect due to which it has been giving problems from time to time. They will replace the compressor after approval of the same from higher authorities and only thereafter engineer of company will come for same.

5. It is alleged that no one came for 4/5 days. The complainant has been repeatedly calling the opposite parties No. 2 & 3 telephonically and also visited personally, but to no effect. Thereafter one mechanic came to the residence of complainant alongwith one helper, prepared a job sheet and inspected and tested the various parts of refrigerator by opening the same from rear portion. He also took photographs of some parts/portions of refrigerator and ultimately told the complainant that there was a manufacturing defect in compressor of refrigerator which was not repairable. The complainant was offered two options either replacement of refrigerator or refund of price of the refrigerator. The complainant asked for replacement of the refrigerator. The engineer asked the complainant to sign a sheet/job card which was even not filled in at that time except writing the name of complainant and particulars of refrigerator in question. The mechanic assured that opposite party would replace this defective piece with new refrigerator and said old piece will have to be sent to the company's factory. The complainant rang up opposite party No. 3 and apprised of the position. He also assured that he personally stands guarantee to supply new and fresh refrigerator in place of defective one within 2-3 days and asked to bear the trouble for those days. Despite the said assurance and tall claims of employees and dealer, refrigerator is not replaced with new one.

6. On this backdrop of facts, the complainant has alleged deficiency in service and unfair trade practice on the part of the opposite parties. By this complaint, he has prayed for directions to the opposite parties to pay Rs. 33,000/- being the price of refrigerator; Rs. 50,000/- as compensation on account of mental pain and agony etc.,with interest @ 24% p.a. and Rs.33,000/- as litigation expenses.

7. In view of the statement of learned counsel for the complainant, the name of opposite party No. 2 was deleted.

8. Notice to opposite parties No. 1 & 3 were issued. None appeared on behalf of opposite party No. 3, As such, exparte proceedings were taken against it.

9. The opposite party No. 1 put an appearance through counsel and contested the complaint by filing written reply. In written reply, the opposite party No. 1 raised preliminary submissions and objections wherein it is pleaded that it is a Korean based company and is engaged in the business of trade and marketing electronic items under the brand name of 'Samsung'. It holds a reputed position in the field of electronics all over the world. The products of the opposite parties are sold to the customer through a network of its dealers all over the country. That the complaint is baseless, devoid of any merits and without any cause of action. That this Forum does not have territorial jurisdiction to entertain and adjudicate the complaint. That the complainant has not approached this Forum with clean hands. He has concealed correct facts.

10. It is also pleaded that intent of the opposite party is to serve its customers and provide goods at the most competitive price and also to enable most impeccable after sales service. There is no intent to deny the same under any circumstances. Had the complainant approached the service centre of the opposite party rightfully with correct facts, prompt service would have been provided but rather than doing so, the complainant has instead preferred the present motivated compliant. The complainant alleges manufacturing defect but the alleged defect cannot be determined on the simpliciter submissions of the complainant and needs proper analysis test report to confirm the same. The complainant has miserably failed to prove that alleged manufacturing/technical fault neither placed on record any analysis test report. In the absence of any technical report on record, the complaint deserves dismissal. That the complainant by way of relief has sought compensation/damages without any manner demonstrating that any loss has in fact been occasioned and in what manner computation of compensation claimed has been made. That the complaint has been filed with mischievous intentions enabling the complainant to enrich him at the cost of opposite party by filing frivolous claim. That complaint is without any just or reasonable basis and is abuse of the process of law. It is liable to be dismissed with exemplary costs.

11. On merits, it is revealed that keeping in mind the needs and requirements of the complainant, a perfectly need and requirements, friendly refrigerator was provided to him. It is denied that opposite party has given 10 years warranty for all parts of refrigerator. Warranty card clearly provided that the warranty of 10 years was on compressor and not on all parts of the refrigerator.

12. It is also mentioned that allegation regarding the said product having various defects is baseless and misconceived and the defect which has been complained of is of such nature that arises on account of the way the complainant has used and maintained the refrigerator.

13. It is also asserted that refrigerator was working in a perfect state and opposite party No. 1 was initially never approached regarding any grievance/complaints in the functioning of the refrigerator. When the complainant was made, on inspection, it emerged that the defect complained of was on account of overloading of refrigerator with food items, frequent opening of refrigerator, not maintaining sufficient space around the refrigerator and due to omission in keeping the refrigerator clean. There is not doubt that the defect had risen owing to the complainant's mishandling of the refrigerator and the onus of the same is being intentionally put on opposite party No. 1.

14. It is also pleaded that complainant has availed warranty period during which opposite party No. 2 has repaired the defects in the refrigerator. The complainant is legally stopped from enforcing this complaint or from taking benefit for his own wrong. After controverting all other averments, the opposite party No. 1 prayed for dismissal of complaint.

15. Parties were afforded opportunity to produce evidence. In support of his claim, complainant has tendered into evidence his two affidavits dated 22-7-2015 & 12-10-2015 (Ex. C-1 & Ex. C-4), photocopy of photograph (Ex. C-2), photocopy of retail invoice (Ex. C-3) and photocopy of brochure (Ex. C-5). Learned counsel for the complainant has also submitted written arguments

16. In order to rebut this evidence, opposite party No. 1 has tendered into evidence affidavit dated 3-10-2015 of Sunil Bhargava (Ex. OP-1/1) and closed evidence.

17. We have heard learned counsel for the parties and gone through the record and written arguments of the complainant.

18. Learned counsel for complainant has reiterated his stand as set up in the complaint and as detailed above. It is further submitted by learned counsel for the complainant that it is not disputed that complainant has purchased refrigerator manufactured by opposite party No. 1. Retail Invoice Ex. C-3 further proves this fact. The complainant has detailed number of complaints made to the opposite parties regarding defect in the refrigerator. The opposite party No. 1 has not categorically denied this fact. The complainant has given number of complaints. The opposite party No. 1 has not produced any record to rebut this evidence. Written version of the opposite party No. 1 is vague. It does not relate to the complainant. Therefore it is to be presumed that opposite party has not contradicted the averments of the complainant. As such, averments of the complainant are to be accepted as true. The complainant has also deposed on oath about the defects in the refrigerator. The opposite party No. 1 has rather admitted defects in para No. 7 of the written reply. It is stated that defect was on account of overloading and frequent opening of refrigerator etc., The opposite party No. 1 has not examined any expert to corroborate these averments. The opposite party No. 1 has tendered affidavit of one Sunil Bhargava who is stationed at Delhi. He has neither inspected the product in question. He cannot depose about the working of the product. He also cannot rebut the allegation of the complainant. It is to be presumed that opposite parties have failed to rebut the evidence of the complainant. From both counts, case of the complainant stands proved. The complainant has purchased refrigerator by spending huge amount. It suffered various defects shortly after purchase. This fact also proves that there is manufacturing defect in the product. Therefore, the complainant is entitled to the refund of its price as well as compensation and cost of litigation.

19. On the other hand, learned counsel for opposite party No. 1 has submitted that complainant has to prove his case by affirmative evidence. The complainant is not entitled to the relief only for weak evidence of opposite party. The complainant has alleged various defects in the refrigerator but there is no evidence to prove any one defect. The complainant has tendered his affidavits Ex. C-1 & Ex. C-4 which are only repetition of complaint of complainant. Ex. C-2 is the photograph. It will not prove any defect. Ex. C-3 is the retail invoice. It can only prove purchase of refrigerator and not any manufacturing defect. Ex. C-5 copy of Brochure proves terms and conditions but not any manufacturing defect. Therefore, conclusion is to be drawn that the complainant has failed to prove any manufacturing defect in the product. When the complainant has failed to prove defect, the opposite party was not required to rebut this evidence. The complaint is abuse of process of law. It is liable to be dismissed.

20. We have carefully gone through the record and have considered the rival contentions.

21. The undisputed facts are that the complainant has purchased refrigerator manufactured by opposite party No. 1. As per opposite party No. 1 there was warranty of compressor for 10 years and the complainant has also alleged defect in the compressor. Of course, the complainant has alleged number of defects in the working of the refrigerator but there is no expert evidence to prove these facts. In para No. 7 of written reply, the opposite party No. 1 has pleaded that defects complained by complainant was on account of overloading of refrigerator with food items, frequent opening of refrigerator, not maintaining sufficient space around the refrigerator and due to omission in keeping the refrigerator clean. In this way, the opposite party No. 1 has not denied defects in the refrigerator but opposite party No. 1 has tried to justify the reasons for these defects. When the opposite party No. 1 has admitted defects, the opposite party No. 1 was also required to prove the cause for these defects. There is only affidavit of one Sunil Bhargava. Admittedly he has never inspected the product. Therefore, from the affidavit furnished by Sunil Bhargava it cannot be concluded that the reason for defects is overloading or frequent opening of refrigerator etc., which ware taken in written reply. It is also not disputed that there was warranty of 10 years for compressor. Therefore, the complainant is entitled to the repair of the refrigerator as per terms and conditions of the warranty card. The opposite party No. 1 has patently failed to provide repair (Service) as per terms and conditions which amounts to deficiency in service.

22. For the reasons recorded above, this complaint is partly accepted against opposite party No.1 with Rs. 5,000/- as cost and compensation and dismissed qua opposite party No. 3. The opposite party No. 1 is directed to repair the refrigerator in question as per terms and conditions of warranty.

23. The compliance of this order be made within 30 days from the date of receipt of copy of this order.

24. The complaint could not be decided within the statutory period due to heavy pendency of cases.

25. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced :

    20-10-2016

    (M.P.Singh Pahwa )

    President

     

     

    (Jarnail Singh )

    Member