Delhi

North East

CC/102/2016

Pankaj Singh - Complainant(s)

Versus

The Director of Panasonic India Private Ltd. - Opp.Party(s)

10 Apr 2019

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. 102/16

 

In the matter of:

 

	Pankaj Singh S/o Shri Phool Singh  H.No. 335, Elychipur Extension Ambedkar Chowk, Nasib Vihar, P.S. Loni District Ghaziabad, U.P.	Complainant
	Versus
1         2           3	M/s. Panasonic India Pvt. Ltd. Panasonic India Pvt. Ltd. H.O. 6th  “SPIC HOUSE”, Annexe No. 88, Guindy, Chennai 600 032   M/s. Panasonic India Pvt. Ltd. B.O. 12th Floor Ambience Tower, Ambience Island, NH-8, Lane No. V-40, DLF Phase-3, Sector-24, Gurgaon, Haryana PIN – 122002   M/s. Kundan Sharma M/s. Sharma Electronics Mangal Bazar Road, Chouhan Patti, Delhi PIN 110094	Opposite Parties

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION      :

22.04.2016 10.04.2016 10.04.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Short facts necessary for disposal of the present complaint as narrated by complainant are that he had purchased a refrigerator bearing Model No. NRA190RMIN Sl. No. 110313263601912279 manufactured by OP1 & OP2 (as per amended memo of parties) from OP3 dealer on 26.04.2013 vide invoice no. 064 for a sum of Rs. 10500/-. As per the certificate of warranty, the refrigerator had one year warranty of the product and additional four years warranty on its compressor. However, the compressor of the said fridge started malfunctioning since 28.02.2016  i.e. within three years of its purchase for which the complainant called the Customer Care Helpline of OP1 & OP2 on 28.02.2016 and registered its complaint on which the engineers of OP1 & OP2 came the next date to the residence of complainant and informed the complainant that there is gas leakage issue in the said fridge and asked him to contact OP3 and take his fridge there. OP3, when contacted, sent his worker to the workshop of OP3 and filled the gas in the said fridge on charges of Rs. 1200/- paid by complainant to worker of OP1. But the said fridge did not function properly and still lying at OP3 shop. The OP3 contacted OP1 &OP2 again for the problem in the fridge but OP1 & OP2 informed that there is problem in the compressor for which the same has to be replaced and shall incur cost of Rs. 4500/-. The complainant opposed levy of such charges on grounds that the compressor has four year warranty which was still in operation and no charges should be levied for replacement of compressor but OPs refused to change the compressor without payment of the said sum. The complainant got issue the legal notice to the OPs through his counsel on 19.03.2016 demanding replacement of compressor but OPs failed to act there upon. Lastly complainant was constrained to file present complaint against the OPs alleging ill tactics and deficiency in service and prayed for issuance of directions to the OPs to change the compressor of the fridge and pay compensation of      Rs. 20000/- for mental agony and harassment and Rs. 11000/- for litigation expenses.
2. The complainant attached original invoice / bill of purchase of fridge from OP3, copy of operational instructions booklet issued by OP1 & OP3 alongwith unstamped / unsealed certificate of warranty with terms and conditions thereof and copy of legal notice dated 19.03.2016 with postal receipt and track report of delivery.
3. Notices were issued to OPs on 03.05.2016. OP1 & OP2 entered appearance on 03.06.2016 and both parties submitted on 05.08.2016 that they were ongoing talks of settlement in the matter in terms of replacement of compressor of the fridge in question. However, the settlement could not be effected but OP1 & OP2 made an offer to repair the fridge to the satisfaction to the complainant and filed written statement on 23.09.2016 in which, while admitting the factum of complainant having purchased the subject fridge, took the preliminarily objection that it did not sell any defective fridge & has not been deficient in rendering services to the complainant. OP1 & OP2 urged that notwithstanding that the said fridge had one year warranty thereon and four years compressor warranty but the said warranty would be rendered void if the compressor of the fridge was repaired / tampered with by any unauthorized person as per clause 8 of the T&C of certificate of warranty which stipulated that “Company will not accept any responsibility for damage arising out of unauthorized modification or alteration, repair or use of this product or any accessory other than those specified by the company.”   The OP1 & OP2 denied the complainant having contacted OP1 & OP2 and submitted that he had instead contacted OP3 which had in turn contacted OP1 & OP2 on which complaint, the same was duly attended to and gas was filled by the engineer of OP1 & OP2. At the time of gas filling, the complainant had confirmed to engineer of OP1 & OP2 that due to electricity issue in his area, the compressor of fridge is not working properly. OP1 & OP2 denied having charged Rs. 1200/- for gas filing as alleged by complainant. OP1 & OP2 further submitted that on subsequent complaint made regarding the fridge, when the engineer was deputed, he reported that the unit had been tampered by some unauthorized person and informed the complainant that the compressor was therefore out of warranty in view of violation of clause 8 of T&C of warranty and therefore, the complainant was asked by OP3 dealer to pay Rs. 3434/- and not 4500/- as alleged by complainant for repair of the compressor. However, the complainant refused to get the fridge repaired or pay charges for the same. Lastly, OP1 & OP2 submitted that in view of the complainant having used the said fridge for a period of more than three years without any complaint and the compressor having been tampered with by an unauthorized person, the complaint is liable to be dismissed and complainant is not entitled to get any relief. Since, the compressor can only be changed on chargeable basis.
4.  Rejoinder to the written statement of OP1 & OP2 was filed by the complainant in rebuttal to defence taken therein and reasserted his grievance in the complaint of having filed a genuine case due to having suffered mental, physical and financial loss due to omission of OP1 & OP2 and denied any tampering in the unit by any unauthorized person rendering warranty condition null and void for the compressor and denied any charges payable there for. OP3 failed to appear despite having been served court notice on 22.03.2016 and was therefore, proceeded against ex parte vide order dated 18.11.2016.
5. Evidence by way of affidavit was filed by complainant exhibiting the documents relied upon/ filed alongwith the complaint as exhibit CW1/A to CW1/F.
6. Evidence by way of affidavit was filed by OP1 & OP2 sworn by its AR Shri Satish Chandra Mishra reinstating the defence taken in written statement.
7. Written argument / submission were filed by complainant and OP1 & OP2 to reemphasize / reinforce their respective grievance / defence.
8. On proceedings held on 09.05.2018 and 04.07.2018, both parties made attempts at revisiting efforts of amicable settlement in the matter by repair of compressor of the defective fridge. However, the complainant submitted that such an offer was given by OPs almost two years ago but was not honored by them and therefore, is not acceptable to him at this belated stage.
9. During the course of oral arguments counsel for OPs filed judgment compilation of judgment of Hon’ble National Commission in Kamal Kishore V/s Electronics Corporation of India I (2011) CPJ 254 (NC) in which the complaint against defective TV was filed which was allowed by District Forum, U.P. but the order was set aside by SCDRC, U.P. on grounds that there was no proof placed on record by the complainant about the defect in the TV by way of single complaint during the warranty period which he was under obligation to establish by way of either an engineer report or any convincing evidence and the said observations were upheld by Hon’ble National Commission which held the view that in absence of any evidence of proof to the contrary, there was no deficiency in service on part of the OP in terms of no complaint having been made about this TV during the warranty period or any creditable evidence produce to that effect. OP1 & OP2 further cited judgment of Hon’ble National Commission in Sandip Laxman Kanase Vs Morya Enterprises decided on 12.09.2011 in R.P. No. 1147/2011 in which the Hon’ble National Commission upheld the orders of District Forum and Maharashtra SCDRC which were of the view that in the event of complainant having been unable to substantiate any of the allegations based on the documents produced and after having considered the pleadings, evidence and documents, the complaint and revision were fit to be dismissed and did not require any different view. OP1 & OP2 also placed reliance upon judgment of Hon’ble NCDRC in Sura Ram Chandra Rao V/s Modern Gynaec and Maternity decided on 23.05.2014 in R.P. No. 3407/12 in which Hon’ble National Commission was of the view that the complainant failed to establish any negligence on the part of OP in absence of any documentary evidence to substantiate that OP did not act as per standards of medical parlance and stipulated by Hon’ble Supreme Court in his landmark judgment. Lastly, OP1 & OP2 relied upon the judgment of Hon’ble SCDRC UT Chandigarh in Sunil Pandit Vs City Portraits and Color Lab passed on 25.05.2017 in F.A. No. A/141/2017 in which the Hon’ble State Commission after observing that the complainant had not annexed any job sheet to show that mobile handset was suffering from defect and failed to produce any document on record found the appeal against order of District Forum having dismissed the complaint been devoid of merits and upheld the orders of District Forum.
10. We have heard the rival contention of both the parties and have thoroughly perused documentary record and judgment compilation placed on record.
11.  Two keys issues are framed for consideration and adjudication in the present matter :

1. Whether OP1 & OP2 were justified in demanding charges for replacement of compressor on grounds of it being rendered out of warranty due to the fridge having been tampered by any unauthorized person and deficiency of service on the part of OP1 & OP2, if any.
2. Apportionment of liability / fastening of liability on OPs and compensation payable, if any and quantum

1. As regards the first issue, from perusal of documents placed on record by the complainant and as per admission of OP1 & OP2 in its written statement and evidence by way of affidavit, the subject fridge was functioning fine from April 2013 till first complaint received after almost three years in the end of February 2016 when it was found suffering from problem of gas leakage and the same was rectified / filled by its engineer. On 2^nd complaint, the version of OP1 & OP2 of the fridge having been tampered by some unauthorized person as per its engineer report rendering warranty on compressor null & void and therefore, demanding charges for the same is uncorroborated by any documentary document by way of any job card issued by the service engineer of OP1 & OP2 or any specific date of visit noted or written with engineer’s comments. In absence of any job card or engineer remarks in writing, such allegation is unsubstantiated and uncorroborated which we are not in agreement with in absence of any cogent documentary proof to support the allegation of tampering with the unit by the complainant thereby rendering warranty terms and conditions on the compressor Null & Void which were otherwise valid for four years from date of purchase i.e. till April 2017. Therefore, we are of the considered view that in absence of any comprehensive evidence by way of any recording to the effect of having tampered with the unit, it was unjust on the part of OP1 & OP2 to have refused to repair the compressor of the fridge free of cost and demanding charges for the same. This issue is therefore, decided against OP1 & OP2 in favour of complainant.   Notwithstanding the problem in the compressor both parties have admitted that the subject fridge functioned without any problem almost three years and therefore, it can be safely inferred that the subject fridge did not suffer from any manufacturing defect, which is also not the case of complainant since he is only praying for replacement of compressor which was within warranty period. Therefore appreciating the facts of the case and documentary evidence placed on record, this issue is decided in the favour of the complainant and against OP1 & OP2 in as much as we are of the view that the compressor of the subject fridge was under warranty and OP1 & OP2 were deficient in service in having failed to replace the same free of cost. The Hon’ble National Commission in the judgment of Rellech Bio Chemical System Vs Amulya Kumar Behara (Dr.) (2007) IV CPJ 388 (NC) had in a similar case upheld the order of the lower Fora holding the OPs guilty of deficiency of service in having failed to render service within warranty period. The judgments relied upon by OP1 & OP2 therefore are not applicable in the present case since the OP1 & OP2 had themselves admitted a faulty compressor for which no expert evidence or technical report was required.
2. As regards the second issue of apportionment of liability, the Hon’ble Supreme Court in landmark judgment of Jose Philip Mampillil Vs. Premier Automobiles Ltd. AIR 2004 SC 1529 held that for manufacturing defect, manufacturer and dealer are jointly and severally liable. The Hon’ble National Commission has also held this view in catena of judgment viz Prabhat Kumar Sinha Vs Nitish Kumar III (2016) CPJ 239 (NC) in which the Hon’ble National Commission held that the petitioner being the seller of a defective computer under warranty was under obligation either to rectify the defects or to replace the computer or refund the consideration amount received. The Hon’ble National Commission in Ashoke Khan Vs. Abdul Karim (2006) 1 CPR 173 (NC ) held that for wrong committed by agent or dealer, consumer is entitled to have reimbursement from manufacturer and dealer as their liability is joint and several. So far as the liability of the manufacturing company is concerned, it is the issue between the manufacturing company and the dealer for which the respondent cannot be made to suffer. The Hon’ble National Commission in Kirloskar Oil Engineers Ltd Vs M. Lokesh 2003 (1) CPR 192 (NC) upheld the concurrent findings of Hon’ble State Commission and District Forum holding manufacturer and dealer jointly and severally liable for deficiency of service in failure to rectify the defects in the generators manufactured by OP. The Hon’ble National Commission in the judgment of JNP Agro Systems Pvt Ltd Vs K.K.Jose 2001 (3) CPR 53 (NC) held that complainant could not be made to suffer for problems between dealer and manufacturer. Therefore in light of the settled proposition of law, the liability towards the complainant of dealer and manufacturer is joint and several. An agent who sales a product, is duty bound to ensure its quality and if the product is found defective, agent shall be vicariously liable for the loss caused to the purchaser, alongwith the manufacturer of the product. This view was held by Hon’ble National Commission in Emerging India Real Assets Pvt Ltd. and ANR Vs. Kamer Chand and anr in RP no 765/16 decided on 30.03.2016. In view of settled proposition of law, as discussed exhaustively in the aforementioned judgment of Hon’ble Supreme Court and Hon’ble National Commission, liability of both OPs is joint and several and coextensive qua the complainant. This issue is therefore decided in favour of complainant holding all OPs jointly and severally liable for deficiency of service.

12.  In the present case in view of the compressor of the said fridge having been rendered permanently defective while still covered under warranty and the same being the backbone of the fridge,  we are of the considered opinion that  all OPs are guilty of deficiency of service in having failed to replace the compressor free of cost more specifically despite statement given before this Forum on 23.09.2016 to repair the said fridge to the satisfaction of the complainant but having failed to honour its own statement. Therefore, all OPs are liable towards the complainant for their inaction in capacity of manufacturer and dealer respectively and therefore jointly and severally liable for the same.
13. We therefore direct OP1 & OP2  jointly and severally to replace the  compressor of the fridge of the complainant free of cost. We further direct OP1, OP2 & OP3 jointly or severally to pay a sum of Rs. 5,000/- as compensation for mental agony and harassment and Rs. 5,000/- towards cost of litigation to the complainant.
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.
16.   Announced on  10.04.2019

 

(N.K. Sharma)      President

(Sonica Mehrotra)  Member