IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Friday the 14th day of August, 2020
Filed on 20.06.2018
Present
1. Sri.S.Santhosh Kumar.BSc. LLB(President)
2. Smt. Sholy,P.R. LLB(Member)
In
CC/No.165/2018
Between
Complainant:- Opposite parties:-
Sri. Babu.V.D 1. Samsung India Electronics
Valappil House Pvt.Ltd, 20th to 24th Floor,
Beach Ward, Bazar.P.O Two Horizon Centre,
Alappzha Golf Course Road
(Party in Person) .Sector-43, DLF PH-V,
Gurgaon, Haryana-122202
(Adv. P.S.Anaghan for 1st OP)
2. Manager
I care solutions
26/475A,
Municipal Stadium Ward
Vellakkinar,
Alappuzha-688001
(Exparte)
3. The Area Manager
Samsung India Electronics
Pvt, Ltd, Safa Arcade,37/804C
Sahodaran Ayyappan Road
Kochi.
(Exparte)
O R D E R
SMT. SHOLY.P.R(MEMBER)
Complaint filed u/s 12 of the Consumer Protection Act. 1986.
Brief facts of the complaint are as follows:-
On 16/3/2013 Complainant has purchased a Refrigerator of model RT26FAJYASA of Samsung Company from Alappuzha subsidiary central Police Canteen. The warranty offered to the total product was 12 months and that of the inverter compressor was 120 months (10 years). On 13/4/2018 the fridge in question became defunct and there by the complainant had registered a complaint to the opposite parties toll free number. On the same day itself the technician from the 2nd opposite party reached the house of the complainant and received Rs.1000/- as advance from the complainant. Then on the next week said technician came along with the board and examined the fridge in question and informed the defect is affected to the compressor and want Rs.10,000/- for its repair. When the complainant noticed about the warranty the technician of the 2nd opposite party told that the warranty is not existed at that time because of its sticker losses from the fridge in question and thereby the complainant is liable to pay all the expense of repairing. This was not agreed with the complainant. Then it was informed by message the cancellation of service order from the opposite party. Again the complainant had contacted to the officials of the 1st opposite party, but not responded. Hence this complaint for getting replacement of the spare parts of the fridge in question with free of service and to return the amount received as advance by the 2nd opposite party and also to award a compensation for deficiency in service on the part of the opposite parties and for cost of proceedings.
2. In response to the complainant the Power of attorney holder of the 1st opposite party filed version as follows:-
Complainant had wrongly impleaded 1st opposite party without verifying the facts and exercising reasonable due diligence. Complaint is only misconceived, groundless and
unsustainable in law and is liable to be dismissed. In the Samsung refrigerator if some defects are noticed, that will not automatically came within the meaning of manufacturing defect and there may be possibility for that defect due to miss handling, improper handling or any other reasons also which could be rectified, and that is why the Consumer Protection Act contemplates, expert opinion when the defect is not visible. When the service engineer inspected the fridge in question he observed that the serial number in the fridge was missing/Torn. Normally in such cases the set is considered as “out of warranty”. When the serial number is missing it is difficult to recognize whether the same was manufactured by the company or not and also which batch, lot the manufacturing happened. There were clear instructions in the warranty manual not to tamper with the serial number in the fridge, which the complainant did not follow. As per the complainant the fridge became out of order, that the fridge was not functioning properly due to cooling issues of the fridge. Therefore an expert opinion was necessary for saying there was manufacturing defect to the product and for its replacement. To the complaint lodged to the opposite parties service center they have provided proper service and after inspecting the alleged defects, he told that the compressor needs to be replaced and also have handed over the estimate which the complainant did not approved and thus the opposite party had no option to rectify the alleged defects. The fridge in question was outside warranty for the complainant’s fault and 1st opposite party should not be made to pay for the fault of the complainant. The allegation of unfair trade practice and deficiency in service as alleged by the complainant is a complete abuse of process of law for illegal gains and to harass the opposite parties. The opposite parties have acted as per the terms and conditions of warranty and in compliance with law. Therefore as per sec.2 (1) (g) of Consumer Protection Act 1986 there cannot be termed as deficiency in service. The complainant had approached this commission with unclean hands suppressed the material facts just to misguide the commission. There is no cause of action ever arose against the 1st opposite party or any other opposite parties and is no deficiency of service or negligence on the part of 1st opposite party or their officials, agents and in the above circumstances the complaint may be dismissed with exemplary cost infavour of opposite parties and against the complainant in the interest of justice, equity and good conscience.
3. In view of the above pleadings points that arise for consideration:-
1. Whether there is deficiency in service or unfair trade
practice on the part of opposite parties?
2. Whether the complainant is entitled to get the defective
spare parts replaced by a new one.?
3. Whether the complainant is entitled to return the advance
amount received for repair and compensation from the
opposite parties?
4. Reliefs and costs?
4. Evidence on the side of complainant consists of oral evidence of PW1 and Exts. A1 to A4 documents. For evidence on the 1st opposite party Ext.B1 marked. Opposite party 2 and 3 remained absent after accepting the notice from this commission, they were set exparte. Complainant and counsel for 1st opposite party filed notes of arguments and advanced oral arguments.
5. Point No.1 to 3:-
For avoiding repetition and discussion of materials these three points are considered together. The specific case of complainant is that on 16/3/2013 he had purchased a Samsung Refrigerator of model RT26FAJYASA having 12 months (1year) total warranty and 120 months (10 years) warranty for the inverter compressor of the product. However on 13/4/2018 it was found out of order, ie. within the period of 61 months of its purchase. Further case of the complainant is that on the complaint registered by him regarding the above defect, the 1st opposite party’s service
technician examined the defect and informed that the compressor is to be replaced and its cost of Rs.10,000/- will be paid by the complainant because the refrigerator in question was out of warranty period.
Ext.A1 is the duplicate bill issued by the Subsidiary Central Police Canteen, Alappuzha and Ext.A2 is the copy of warranty manual regarding the refrigerator in question. Ext.A2 would show that the refrigerator in question covered 120 months (10 years) warranty on the digital inverter compressor. On the other hand Ext.B1 produced by the 1st opposite party and argued that the serial number shown on the side of refrigerator in question was not readable and hence the compressor could not be repaired in warranty. It appears on a keen observation that there is no chance that Ext.B1, sticker showing the serial number of the fridge in question got damaged intentionally or purposely by the complainant. On the other hand the opposite party failed to note the serial number of the said fridge on the space specified for that purpose in Ext.A2. If it was shown there we could have compare the number with the available information on the document. Non endorsement of any essential intimation or communication to the customer is some sort of unfair trade practice committed by the seller or supplier.
1st opposite party further argued that the complainant has also not establishes the fact that the fridge in question was having some manufacturing defect by taking any expert opinion. In the absence of any strong proof, this complaint is liable to be dismissed. 1st opposite party placed the judgment of National Commission in CLASSIC AUTOMOBILES VS. LILA NAND MISHRA AND ANOTHER reported in 2010 CPJ 235, it has been held that the onus to prove the manufacturing defect was on the complainant. 1st opposite party also relied the judgment in M.J Abraham Vs. Angel Agencies and others III 2000 CPJ 544, it has been held by the State Consumer Disputes Redressal Commission, Kerala that for replacement of product the defect must be manufacturing defect and for proving manufacturing defect expert opinion is essential. Here in this case the complainant in his complaint as well as in the affidavit filed as chief examination never alleged the complaint occurred to the fridge in question due to manufacturing defect. No recurring defects were noticed in the said fridge. Only one incident of defect was found and on that the authorized service technician of the 1st opposite party authenticately informed the complainant about the defect of compressor and it can be solved only by replacing the compressor. Ext.A4, the sticker pasted on the fridge would also indicate that the said fridge has 10 years (120 months) warranty for inverter compressor. At the same time, one cannot overlook the fact that the complainant has again spend Rs.10,000/- for its repair. Still the cooling machine has been the object of disappointment to the complainant. The only suggestion of the complainant in cross examination that he cannot say whether the defect is a manufacturing defect or not and the same is to be say only an expert is not admissible in the above circumstances. According to Sec.2(1) (f) of Consumer Protection Act. 1986 and its corresponding Sec.2(10) the word “defect” defines any fault, imperfection or shortcoming in the quality, quantity, potency purity or standard which is required to be maintained by or under any law for the time being in force or under any contract express or implied, or as is claimed by the trader in any manner whatsoever in relation to any goods. So one can say without hesitation that the service rendered by the opposite party was not in keeping with the expectation with regard to the standard of repairs, compelling the complaint to spend more money to cure the defects. Therefore we find deficiency in service and unfair trade practice committed by the opposite parties and they are liable to repair the fridge in dispute and retain it in working condition on free of cost within a stipulated period of 30 days. If they failed to do so opposite parties are liable to repay Rs.8,000/- as the depreciated value of the product under dispute to the complainant. Ext.A3 would show that the 2nd opposite party received Rs.1000/- from the complainant without rendering any service to him. Therefore the complainant is entitled to recover the amount of Rs.1000/- from the 2nd opposite party with interest from 13/4/2018 till realization. More over the complainant is entitled to realize Rs.5000/- as loss caused to him for not repairing the defective fridge in time and also as compensation for the mental agony suffered by the complainant in this regard from the opposite parties. Complainant is also entitled to get litigation cost of Rs.2000/- from the opposite parties since the adamant attitude leads unnecessary litigations. These points are answered accordingly.
5. Point No.4
In the result complaint is allowed in the following terms.
1. Opposite parties are directed to repair refrigerator in dispute and retain it in working condition on free of cost within a stipulated period of 30 days of receipt of this order. Otherwise the opposite parties 1 to 3 are jointly and severally liable to repay Rs. 8000/- to the complainant as a depreciated value of the product under dispute.
2. Complainant is entitled to recover Rs. 5000/- as compensation for mental agony.
3. Complainant is also entitled to recover Rs.2000/- as cost of this proceedings.
Dictated to the Confidential Assistant, transcribed by him corrected by me and pronounced in open Forum on this the 14 th day of August, 2020.
Sd/-Smt. Sholy.P.R (Member)
Sd/-Sri.S.Santhosh Kumar(President)
Appendix:-Evidence of the complainant:-
PW1 - Babu.D(Witness)
Ext.A1 - Duplicate Bill dtd.16-3-2013
Ext.A2 - Copy of Warranty card
Ext.A3 - Cash Receipt dtd.13-4-2018
Ext.A4 - Photograph
Evidence of the opposite parties:-
Ext.B1 - Serial Number
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Br/-
Compared by:-
