Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 593.
Instituted on : 29.12.2015.
Decided on : 28.02.2017.
Ramesh s/o Sh. Jeet Ram R/o Village Titoli, Tehsil & Distt. Rohtak.
………..Complainant.
Vs.
- Shri Balaji Traders, 5-A, Palika Bazar, Rohtak through its proprietor.
- Videocon Refrigeration, Corporate office-Videocon 296, Udhyog Vihar, Phase-2, Gurgaon, through authorized representative/In-charge.
- Tech Care India Pvt. Ltd.: Om Sai Service, Behind Subhash Talkies, Subhash Road, Rohtak.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
SH. VED PAL, MEMBER.
Present: Sh.N.P.Sharma, Advocate for the complainant.
Opposoite party no.1 exparte.
Ms. Savita Saini, Advocate for opposite party No.2 and 3.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that complainant had purchased a videocon refrigerator on 04.04.4014 worth Rs.16500/- from the opposite party no.1 with five years guarantee which was manufactured by opposite party no.2. It is averred that within a period of one year the refrigerator did not work properly and giving hardship to the complainant. It is averred that complainant informed the opposite party no.2 who authorized to the opposite party no.3 to solve out the problem and opposite party No. 3 got repaired the same but within a short period the same is again not working properly. It is averred that on the same the complainant given complaints again and again to the opposite party by which opposite parties lodged the complaints and left up the refrigerator for the repairing which was occurred by the complainant on three times, whereas the opposite parties are duty bound to repair the same on free of cost. It is averred that on 12/12/2015 the opposite party no.3 through opposite party No.1 & 2 again taken the refrigerator with the assurance that they will repair the same properly or replace the same with new one but the opposite party no.3 demanded more than Rs.6000/- for covering the manufacturing defect and the opposite party no.1 & 2 not given any satisfactory answer on the genuine complaint of the complainant to replace the same or refund the amount of complainant. It is averred that act of opposite parties is illegal and amounts to deficiency in service. As such it is prayed the opposite parties may kindly be directed either to replace the said refrigerator with new one or to refund the price of refrigerator alongwith interest, compensation and litigation expenses to the complainant.
2. On notice opposite party no.1 did not appear despite service and as such opposite party no.1 was proceeded against exparte vide order dated 08.02.2016 of this Forum. However, opposite party no.2 & 3 appeared and filed their separate written reply submitting therein that the refrigerator bears warranty not guarantee and that too for 1 year only and not for 5 years. However, it is pertinent to mention here that the 5 year warranty clause means 1 year warranty for the complete refrigerator + 4 years warranty for the compressor only. It is averred that complainant has lodged only one complaint with the answering opposite party No.2 vide complaint number GUR0409150174 dated 04.09.2015 which has been duly resolved. It is pertinent to mention here that the amount of Rs.1920/- has been charged from the complainant on account of Gas charging in the refrigerator. The customer is required to pay for the repairs of the refrigerator on being out of warranty except for the compressor. It is averred that complainant has refused to pay the service charges of Rs.450/- as is required to be paid by the customer for the product being out of warranty. It is averred that complainant has put forward a concocted story in order to get his out of warranty refrigerator replaced with a new one and to grab money illegally from the answering opposite party. It is averred that there is no deficiency in service on the part of opposite parties and dismissal of complaint has been sought.
4. Both the parties led evidence in support of their case.
5. Ld. Counsel for the complainant in his evidence tendered affidavits Ex.CW1/A, documents Ex.C1 to Ex.C7 and has closed his evidence. On the other hand, ld. Counsel for the opposite parties have tendered affidavit Ex.RW1/A and has closed his evidence.
6. We have heard ld. counsel for the parties and have gone through material aspects of the case very carefully.
7. In the present case it is not disputed that the complainant had purchased one refrigerator from the opposite party no.1 for a sum of Rs.16500/- on dated 04.04.2014 as is proved from the copy of bill Ex.C1. It is also not disputed that as per job sheet dated 04.09.2015 Ex.C2 there was cooling problem in the alleged refrigerator and the opposite party had charged Rs.1920/- on account of Gas charges. As per job sheet Ex.C3, refrigerator was again submitted to the opposite party no.3 for repair but the same was not repaired. Complainant has also placed on record copy of invoice Ex.C5 of purchase of another refrigerator, copy of visiting card Ex.C6 of opposite party no.3 and copy of warranty card Ex.C7. On the other hand, opposite party No.2 & 3 has placed on record copy of affidavit Ex.RW1/A and has contended that the complainant refused to pay the service charges of Rs.450/- as is required to be paid by the customer for the product being out of warranty. However opposite party no.2 & 3 have made a statement that opposite parties are ready to remove the manufacturing defect if any in the refrigerator.
8. After going through the file and hearing the parties it is observed that the complainant had purchased the refrigerator on 04.04.2014 and as per the job sheet Ex.C2 the defect in the alleged refrigerator was appeared on 04.09.2015 i.e. after about 1 years and 5 months of purchase. However the same was got rectified by the opposite party by charging Rs.1920/- from the complainant on account of gas charges. But the problem could not be resolved and as per job sheet Ex.C4 the same was again deposited with the service centre i.e. opposite party no.3 but the same could not be repaired by the opposite parties and is still in possession of opposite party no.3. It is also observed that as per warranty card Ex.C7 there is 1+4 years warranty i.e. 1 year warranty on all parts except light bulb, consumables, loose plastic parts in the first year and thereafter a 4 year additional warranty on the compressor from the date of purchase. The contention of opposite parties is that opposite party no.2 & 3 are ready to remove the manufacturing defect if any in the alleged refrigerator. But opposite parties have not placed on record any expert report to prove that there is no manufacturing defect in the refrigerator despite the fact that the alleged refrigerator is in the possession of opposite party no.3 for repairs. In this regard we have placed reliance upon the law cited in 2014(3)CLT178 titled as Krishanpal Singh Vs. Tata Motors & others whereby Hon’ble National Commission, New Delhi has held that: “Vehicle repeatedly taken to service station for repairs-The manufacturing defect, must be assumed-Onus of proof shifts upon OP, and it is further held that: “Whenever there is a complaint of manufacturing defect, it should be the bounden duty of the people, like Ops to appoint their own experts who are always available at their beck and call to prove that the car does not suffer from any manufacturing defect” and as per 2014(1)CLT588 titled Jugnu Dhillon Vs. Reliance Digital Retail Ltd. & Others Hon’ble Delhi State Commission, Mumbai has held that: “Manufacturing defect-Expert evidence-Principal of res ipsa loquitur-Failure of compressor of the AC within 2-3 months of its purchase itself amount to manufacturing defect and principle of res ipsa loquitur should have been applied and it is further held that: “In the event when a product is found to be defective at the very beginning it is always better to order for the refund of the amount because replacement of the product will never satisfied the consumer because the consumer had lost faith in that company’s product-if the repaired product is again returned to the consumer and if develops the defect again then the consumer will be put to much larger harassment because he had to fight another bond of litigation which will be highly torturous” and as per 2006(1) 537 titled Raja Mohammad Vs. Dhanabagyam & Anr. Hon’ble Tamil Nadu State Commission, Chennai has held that: “In the event of its being found that there was manufacturing defect and the claimant would be entitled to the relief, there could be an award only against the manufacturer and not against the dealer”. In view of the aforesaid law which are fully applicable on the facts and circumstances of the case it is observed that it is a fit case where lump sum compensation is justified and the manufacture is liable to pay the same.
9. In view of the facts and circumstances of the case it is observed that as per the statement made by ld. counsel for the complainant on dated 03.10.2016 the refrigerator in question is already in the possession of opposite party No. 3. As such opposite party No.2 i.e. manufacturer shall pay the lump sum compensation of Rs.15000/-(Rupees fifteen thousand only) to the complainant within one month from the date of decision failing which the awarded amount shall carry interest @ 12% p.a. from the date of order. Complaint is disposed of accordingly.
10. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
28.02.2017.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
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Ved Pal, Member.
