BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.476 of 2016

Date of Instt. 06.12.2016

Date of Decision:10.04.2018

Indu Thukral aged about years wife of Mr. Anil Thukral, permanent resident of Sirhind and also resident of Beas Flat No.1, Sant Enclave, G. T. Road, Beas, Amritsar.

..........Complainant

Versus

1. Samsung India Electronics Pvt. Ltd., 2 Horizon Center, Golf Course Road, Sector 43, Phase-5, Gurgaon, Haryana-122002.

2. M/s Raja Enterprises (Service Centre), 29, Chowk Farid, Amritsar through its Manager/Incharge/Authorized Signatory.

3. M/s J.J. Electronics, 535-D, New Jawahar Nagar, Jalandhar through its Manager/Authorized Signatory.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Smt. Harvimal Dogra (Member)

Present: Sh. Aditya Jain, Adv. Counsel for the Complainant.

Sh. Vishal Chaudhary, Adv. Counsel for the OP No.1.

OP No.2 exparte.

Sh. Umesh Dhingra, Adv and Sh. Karan Seth, Adv Counsels for the OP No.3.

Order

Karnail Singh (President)

1. This complaint is presented by the complainant, wherein alleged that the complainant purchased one refrigerator Samsung Model No.RT28FAJSABX/TL on 23.03.2013, vide Invoice/Bill No.897 for Rs.27,000/-. At the time of purchasing the said Samsung refrigerator, the complainant was assured that there is ten years warranty for the refrigerator and if during that period, there is any problem in the refrigerator, then the company i.e. OP No.1 alongwith OP No.2 will take care of that and the complainant/purchaser would have to bear no expenses.

2. That on 19.02.2016, the cooling system of the said refrigerator was defunction, due to which foul smell comes out in the refrigerator. The complainant lodged a complaint with OP No.2 on 19.02.2016, vide reference No.4209616466 and again on 02.04.2016, made an other complaint, vide reference No.42117606648 and then again on 05.04.2016, vide reference No.4211760648 and then on 22.04.2016, vide reference No.4212851564 and then on 26.04.2016, vide reference No.4213050994. After making several complaints on 27.04.2016, the executive of OP No.2 told the complainant telephonically that new compressor will take 10-12 days, but they can replace it with on old compressor in case of emergency. The complainant refused and demanded the new compressor. In the evening of 27.04.2016, the representative of the OP No.2 called the complainant and apprised the complainant that new compressor has come and they will come tomorrow morning and will replace the same. On 28.04.2016, the executive of the OP No.2 visited the house of the complainant and got checked the refrigerator and done necessary repair and further replace the components like Dryer and Compressor, which were under warranty and took Rs.1200/- from the complainant for putting Gas in refrigerator, vide Invoice No.1962 dated 28.04.2016 and assured the complainant that the refrigerator will do the cooling and will work properly and on next morning i.e. 29.04.2016, the complainant realized that the refrigerator is not working properly and there is no cooling. It seems that the OPs have played fraud with the complainant and have installed the old compressor inspite of the fact that the refrigerator of the complainant is covered under 10 years warranty. Thereafter, the complainant made several complaints on telephone to the OPs, vide complaint dated 03.05.2016, vide reference No.4213070778, complaint dated 04.05.2016, vide reference No.4213050994, complaint dated 13.05.2016, vide reference No.4214058127, complaint dated 14.05.2016, vide reference No.370321111449 in between that the complainant also had telephonic call to Mr. Neeraj Dadwal on his telephone No.09216446444, North Zone Head, Chandigarh and also had telephonic conversation with Kulwinder Singh, who earlier repaired the refrigerator on 05.11.2016 on his mobile No.9814292236, but no effect. The refrigerator is not working for the last 10 months, due to which the complainant is facing lot inconvenience and was without refrigerator for whole of summer period and requested the OPs to give new refrigerator or to repair it immediately, but the OPs have refused to replace the refrigerator with a new one and have also refused to repair the same. The OPs are also responsible for causing mental tension, harassment and agony to the complainant and have failed to remove the defect of the above said refrigerator, which is in warranty period. The negligence in providing service properly to the complainant has caused lot of harassment to the complainant and thus, the complainant is entitled for damages on account of deficiency in service, negligence in service on the part of the OPs and accordingly, the complainant also served a legal notice dated 21.11.2016, but all in vain and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund the cost of the Samsung Refrigerator i.e. Rs.27,000/- alongwith 18% interest from the date of purchase upto its payment and further OPs be directed to pay compensation for mental agony and tension, to the complainant for a sum of Rs.50,000/- and OPs be also directed to pay litigation expenses of Rs.11,000/-.

3. Notice of the complaint was given to the OPs, but despite service OP No.2 did not come present and ultimately, OP No.2 was proceeded against exparte.

4. OP No.1 appeared through its counsel and filed reply, whereby contested the complaint by taking a plea that the complaint has been filed with mischievous intentions thereby enabling the complainant to enrich him at the cost of answering OP by filing frivolous claim. The complainant as and when lodged complaint with answering OP or authorized service centre of OP No.2, the same has been duly attended, but on many occasions, the complainant was not at home and service engineer has to return back without servicing the refrigerator and further averred that the complainant has concealed the true and material facts from the Forum. The refrigerator in question is perfectly working when it was last serviced on 28.04.2016 and its compressor was replaced. After replacement of compressor, all the parameters were within normal range and ice formation was also normal. Thereafter, the complainant lodged a complaint on 13.05.2016 service engineer visited the house of the complainant and found that refrigerator needs to be shifted to service centre for proper rectification of the problem of low cooling, but the complainant refused to send the refrigerator to the premises of the OP No.2. Hence, the problem could not be rectified. The answering OP through its service centre i.e. OP No.2 is still ready to rectify the problem in refrigerator if, complainant submit her refrigerator to the premises of the OP No.2, but the complainant intentionally with ulterior motive has filed the instant complaint on the basis of false allegations and further alleged that in the absence of any independent expert evidence, the claim cannot be allowed of the complainant and even there is no inherent manufacturing defect in the refrigerator, therefore, the complainant is not entitled for refund or replacement of the refrigerator and further alleged that there is no deficiency in service or breach of contract on the part of the answering OPs. On merits, the factum in regard to purchase of the refrigerator and occurring some problem therein, is not denied by the OPs, but the other allegations as made in the complaint are categorically denied and further alleged that there is a warranty of one year for the entire refrigerator and additional 9 years warranty is only for the compressor and after the expiry of warranty period of one year, the complainant has to bear the repair and service charges and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed with cost.

5. OP No.3 filed its separate reply and took a preliminary objection that the present complaint is not maintainable against the OP No.3 because the OP No.3 is neither the manufacturer of the refrigerator nor the OP No.3 is the service provider for the repair etc. The manufacturer is Samsung India Electronics/OP No.1 and the authorized centre for the servicing and repair etc. is OP No.2. Hence, no complaint is maintainable against the OP No.3. On merits, the purchase of the refrigerator from the OP No.3 is admitted and the terms and conditions in regard to warranty is also not denied and lastly prayed that the complaint of the complainant qua OP No.3 is not maintainable and the same may be dismissed.

6. In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA alongwith documents i.e. Bill Ex.C-1, Customer Service Record Card Ex.C-2, Invoice No.897 Ex.C-3, Legal Notice Ex.C-4 and Postal Receipts Ex.C5 to Ex.C-7 and closed the evidence.

7. Similarly, counsel for the OP No.1 tendered into evidence affidavit Ex.OPW1/A and closed the evidence. Counsel for the OP No.3 also tendered into evidence affidavit Ex.OP3/A and then closed the evidence.

8. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

9. After taking into consideration the respective pleadings as well as documents produced by both the parties, it has become clear that the complainant has admittedly purchased a refrigerator for Rs.27,000/- from OP No.3, vide Invoice Ex.C-3 dated 23.03.2013 and further complainant also brought on the file Customer Service Record Card Ex.C-2, showing that the refrigerator of the complainant was got some problem and the same was checked by engineer of the OP No.2 i.e. Service Centre and even the OP No.2 got charged a sum of Rs.1200/- for filling of Gas in the refrigerator and the said receipt is Ex.C-1 and other allegations have been fortified by the complainant himself by tendering his own affidavit Ex.CA.

10. Further, the complainant admittedly made first complaint on 19.02.2016, vide reference No.4209616466 and again made complaint on 02.04.2016 and then on 05.04.2016, 22.04.2016, 26.04.2016, 27.04.2016 and reference number of the aforesaid complaints have been duly mentioned in the facts as narrated above, not so the complainant further made complaints to the OP on 03.05.2016, 04.05.2016, 13.05.2016 and 14.05.2016 and its reference number also mentioned in the facts which need not to repeat and even the complainant also talk with Mr. Neeraj Dadwal and Kulwinder Singh, the above said reference regarding making a complaint and talking with the officials of the OPs is not denied by the OP No.1 in its reply rather the OP No.1 admitted that whenever a complaint was made by the complainant in regard to defect in the refrigerator, then the engineer of the complainant was visited to the house of the complainant, but some time, the house of the complainant was locked and even the OP No.2 made effort to bring the refrigerator to a service centre, but the complainant was not ready and as such, there is no fault or deficiency in service on the part of the OP because the complainant himself is not ready to bring the refrigerator in the service centre of the OP No.2 for rectification of the problem.

11. No doubt, the above said factum has been described by the witness of OP No.1 i.e. Anindya Bose, whose affidavit is Ex.OPW/A, but we find that the said Anindya Bose is a Deputy General Manager, Samsung India Electronics Private Limited, he is not an engineer, mechanic or expert of the refrigerator, he is a simple layman and administrative officer, he cannot say any thing in regard to defect in the refrigerator and moreover, the plea taken by the OP that their engineer visited so many times in the house of the complainant, is not supported by any cogent and coercive evidence and in the absence of such like evidence, it is not admissible that the OP has made any efforts to rectify the refrigerator of the complainant, the best option with the OP No.1 i.e. Manufacturing Firm is only to examine the engineer/mechanic, who visited the house of the complainant and checked the refrigerator, but for the best known reason, the OP No.1 has not examined any such expert witness. No doubt initially, the onus is upon the complainant to prove that there is some manufacturing defect in the product and when complaint regarding that is made to the manufacturing firm and then the manufacturing firm got checked the said product from any authorized engineer or mechanic and then ball goes to the courtyard of the OP i.e. manufacturing firm to examine that engineer or mechanic just to establish that there is no manufacturing defect in the said product, but in this case, no such like expert witness has been examined by the OP, therefore, the version of the complainant, which is based on numerous complaints not orally in writing and the number of each complaints have been given by the complainant in its complaints, which are very much referred in the judgment. So, the case of the complainant in regard to manufacturing defect in the refrigerator is established by documentary evidence and therefore, we come to the conclusion that there is inherent manufacturing defect in the refrigerator, so purchased by the complainant from the OP No.3, manufactured by OP No.1 and as such, the complainant is entitled for the relief claimed.

12. In view of the above detailed discussion, the complaint of the complainant is partly accepted and all the OPs, including OP No.3, who sold the defective piece of the refrigerator to the complainant, are jointly and severally liable to indemnify the complainant and thus, all the OPs are directed to refund the price of the refrigerator i.e. Rs.27,000/- alongwith interest @ 9% per annum from the date of purchase i.e. 23.03.2013, till realization and further OPs are directed to pay compensation of Rs.10,000/- to the complainant for mental agony and harassment and also directed to pay litigation expenses of Rs.5000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

13. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated Harvimal Dogra Karnail Singh

10.04.2018 Member President