Delhi

North East

CC/419/2015

Sheela Devi - Complainant(s)

Versus

Technoking Distributors - Opp.Party(s)

25 Oct 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 419/15

In the matter of:

	Smt Sheela Devi W/o Sh. Sharwan Kumar R/o H.No. 12/6, Bihari Pur Extn. Khazuri Khass, Near Naveen Public School, Delhi-110094.		Complainant
	Versus
1.       2.	Technoking Distributors H.No. 1/5343, Gali No.14 Balbir Nagar Extn. Shahdara, Delhi-32   Samsung India Electronic Pvt Ltd B-1, Sector-81, Phase-2 Noida, Distt. Gautam Budh Nagar, U.P. Also At: Samsung India Electronics Pvt Ltd Head Officer-Vipul Tech Square Golf Course Road, Sector-43 Gurgaon (Haryana) Through its Managing Director.		Opposite Parties
		DATE OF INSTITUTION:		21.10.2015
		DATE OF DECISION      :		25.10.2016

 

Nishat Ahmad Alvi, Member

 

ORDER

 

1. As per complaint complainant purchased a fridge of OP3 make, Model No. “RT27HARZABX” vide cash bill No. TD-185 dated 24.04.2015 against a sale consideration of Rs. 20,500/- with one year comprehensive warranty on the other parts than the compressor which had 10 years’ warranty from the date of purchase. But on supply of the fridge complainant found the fridge was of different model. Even otherwise, since the very beginning there was complaint in the fridge. On complaint to OP1 a person visited complainant’s place and, after inspection of the fridge, advised to use the fridge for a short while and within that period Chief Engineer of OP shall visit and inspect the fridge. But to no avail. On reminder to OP1, he brushed aside its responsibility without issuing any complaint number and saying that it is only OP2, who will look after the problem. The fridge was not functioning properly. There was no cooling at all. There were sounds like an engine and after loud sound compressor used to stop working. There was no formation of ice in ice chamber. Complainant made a complaint to OP2 on 01.07.2015 who provided complaint number A197039490 but no one bothered to solve the grievance of complainant. On further reminders OP’s service provider visited the premises assuring rectification of cooling problem and loud sound in the fridge and despite stating that the said fridge is old and used one did not help in getting either the replacement or refund of the fridge or rectify the problem. However, for the time being cooling problem was rectified to the extent that low cooling started but even low cooling stopped after few days and at last there was no cooling. Rather sound problem again surfaced. On further complaint to customer care of OP, on 24.09.2015, complainant was assured that Chief Engineer of Co. shall visit for inspection. But to no avail. Reminder dated 28.09.2015 whereof was also met with no result. However on complaints dated 30.09.2015 and 01.10.2015 OP1 get complaint lodged vide number 420204329 but OP1 denied to help out to complainant saying that only OP2 shall do the needful. On another complaint on 04.10.2015 to “Home Care Service Centre” of OP2, one Mr. Pawan assured to visit the premises but he didn’t come. Again on further contact after assurance of one Mr Parul Shri Tahir visited. Who after inspection told that there is some problem, in the body and compressor of the fridge. The fridge is an old one and the same cannot be rectified permanently. That person left assuring to get the old fridge replaced with new one but with no result. Pleading, breach of warranty conditions and the agreement, between the two, supply of defective and malfunctioning old fridge and OP’s failure to repair the fridge, and consequent deficiency in service and unfair trade practice, complainant has prayed for the directions to OPs to refund the cost of the fridge being Rs. 20,500/- alongwith compensation of Rs. 50,000/- and Rs. 10,000/- as litigation cost.    

 

2. Both the parties were duly served but only OP2 appeared and contested the case while OP1 was proceeded against Ex-parte as no reply was filed by it. OP2 by filing its reply has contended that there is no cause of action against it. There is no deficiency on its part. Rather, complainant not followed the user instructions of fridge as given by executive of OP1. The complainant was provided services without any delay and negligence. No terms of warranty were violated and complainant has failed to establish manufacturing defect in the fridge. All these objections were denied by complainant in its rejoinder further reiterating all the contentions in the complaint.

 

 

3. Both the parties filed their respective evidence by way of affidavits.
4. Heard and perused the record.
5. Perusal of the pleadings show that there is no dispute about the defect in the fridge. There is no specific denial on the parts of OPs against supply of different Model, rather old one. There is no specific denial that the persons specified in complaint visited complainant’s place and inspected the fridge. Complaint vide numbers as referred by complainant are also not denied by OP. OP2’s plea of no cause of action against it is not supported by any reasoning. OP has failed to elaborate what are the user instructions which OP1 provided and complainant not followed. Cases referred by OP2 in support of its defences are (i)City Municipal Corporation vs S.A. Lateef co.(AIR2004Kant491) (ii) Tata Motors vs Deepak Goyal (Revision Petition No. 2309 of 2008) (iii) Vikram Bajaj vs Hind Motors (India) Limited & Anr [2009 (ii) CLT 670] (iv) Interglobe Aviation Limited vs N. Satchidanand (2011) 7 S.C.C 463.

 

6. Going through the City Municipal Corporation case we find that fact of this case are different than the present one as in this case originally the article in question had no complaint and question to determine the manufacturing defect arose only after some of the sets were burnt therein and cause of burning was claimed by the complainant the manufacturing defect in the article. While in the present case primafacie /admittedly the fridge in question was having defect from the very beginning which the OPs were not able to rectify.
7. Similarly TATA Motor case is also not applicable herein as in that case the vehicle in question had already run lacks of kilometres while in the present case the fridge in question is defective from the very beginning which Ops were not able to rectify.

 

8. As per Sas Motors Ltd iii (2013) CPJ520 (NC 2013) Hon’ble National Commission has held the opinion of Hon’ble National State Commission that immediately after purchase there were complaints a number of times burden to prove that there was no manufacturing defect shift to Ops and not on the complainant. Which the Ops have failed to place on record by any cogent evidence.

 

9. In the light of above case Vikram Bajaj case is also not applicable in the present case as complainant need not file expert evidence while primafacie the complainant has proved that fridge is having defects which Ops are unable to rectify.
10.   Similarly Interglobe case is also not applicable in the present case as deficiency in service has been proved on every complaint and admittedly the fridge in question is also not fit for use even after Op’s best efforts.

 

11.  OPs by not rectifying the problem in fridge are not only deficient in service but the problem being prove not rectifiable is deemed to be a manufacturing defect.

 

12.   In the facts and circumstances and the findings aforesaid we hold both the OPs guilty for unfair trade practice and deficiency in service beside for harassing the complainant and direct them to pay to the complainant :-

1. an amount of Rs. 20,500/- (Rupees Twenty Thousand Five Hundred Only) against cost of the fridge; and
2.  compensation of Rs. 7500/- (Rupees Seventy Five Thousand Only); and
3. litigation cost of Rs. 5,000/- (Rupees Five Thousand Only), jointly and severally.

13.  All these amounts shall be paid within 30 days from the date of receipt of copy of this order.

 

14. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.

 

15. File be consigned to record room.

Announced on: - (25.10.2016)

 

(N.K.Sharma) President

(Nishat Ahmad Alvi) Member