Dtd. 28.10.2022
Final Order/Judgment
Debasis Bhattacharya:- Presiding Member
Being aggrieved and dissatisfied with treatment meted out by the opposite parties as mentioned above in the matter of purchase of a refrigerator and the post sales services thereof, the instant case has been filed by the complainant on 10.07.20, u/s 12 of the Consumer Protection Act 1986 involving three opposite parties viz. the retailer, the concerned Manager, Customer Care of the manufacturer and the Kolkata office of the manufacturer represented by its Manager.
To depict the fact of the case in a nutshell,
the complainant purchased a 256 Ltr. Haier brand Refrigerator (model no.HRB-2764PMJ-E/256) from the opposite party no.1 at the cost of Rs.27,000/- vide invoice no. UP/1819/SA/04244 dtd. 22.07.18 against warranty and accordingly the item was delivered to the complainant’s address.
The complainant while purchasing the refrigerator opted for annual maintenance contract and paid the corresponding fees accordingly.
However, reportedly, the complainant, since purchase of the refrigerator, started facing problems related to cooling of the refrigerator. Initially the same was informed to the retailer i.e. opposite party no.1 on 09.08.2018 but on being informed the complainant was suggested to take up the matter with the opposite party no.2 i.e. the customer care of the manufacturing company.
From then on, the complainant had to lodge complaints quite a few times successively, regarding the same issue with the manufacturing company and each time the concerned technician visited the complainant’s place, resolved the problem temporarily and predicted that no further problem would arise.
By this time, the complainant forwarded a proposal for replacement of the refrigerator as it appeared that there was a manufacturing defect. However the company did not feel it necessary to pay heed to the proposal. On the contrary, misbehavior was extended by the service centre in-charge to the complainant as she, not being satisfied with the service, declined to share the secret code with the technician. Allegedly, she was threatened that neither the refrigerator would be replaced nor any further service would be extended.
Finding no other alternative, the complainant sent a legal notice to the opposite party no.2 demanding immediate replacement of the refrigerator or refund of the involved amount paid against the purchase along with the AMC charges. However the party refrained from settling the claim and even responding to the notice.
Eventually, the problem was left unresolved. In view of the series of events mentioned earlier, the complainant in his petition brings to focus her worries, anxieties, sufferings and harassment.
Resultantly, in the complainant petition, the complainants prays for an order directing the opposite parties either to refund the purchase price of the defective refrigerator of Rs.27,000/- only along with AMC charges of Rs.2974/- only with 12% interest from the date of purchase or to replace the defective refrigerator by a new one of the same model at the cost of the opposite parties. Simultaneously, the complainant claims Rs.1,00,000/- as compensation for mental agony, and harassment and Rs.50,000/- towards litigation cost.
Now, so far as the history of the case is concerned, the complainant has submitted their written version, evidence on affidavit and brief notes on argument whereas the opposite party no.1 has submitted their written version and brief notes of argument. By virtue of this Commission’s order dtd.02.05.2022 the written version filed by the opposite party no.1 is treated as the evidence on affidavit of the opposite party no.1.
As regards opposite parties no.2 & 3, one Sri Abhijit Dey, purportedly Area Service In-charge of Haier Appliances India Pvt. Ltd. Kolkata Branch, claimed to be authorized representative, appeared with an ‘authority letter’ and submitted a written version of opposite parties no.2 & 3 signed by him and filed by an Advocate, vakalatnama in whose name was given by that Sri Abhijeet Dey.
Firstly, this Commission, in its order dtd. 05.01.21 declined to entertain such letter of authorization. Secondly, Sri Dey neither had a General Power of Attorney nor had a Special power of attorney to appear before this Commission to represent the opposite parties No.2 &3. Besides, it is not clear from the letter of authorization that under which authority the signatory of the letter authorized Sri Dey to appear before this commission.
Thirdly, it is not known that under which authority Sri Dey issued Vakalatnama in favour of the concerned Advocate.
Thus, this Commission is of the view that both the authority of Sri Dey and the sanctity of the written version filed by him are grossly questionable. Naturally the content of the written version filed by Sri Dey cannot be taken into consideration.
In spite of allowance of substantial time, no evidence on affidavit was filed by opposite party no.2 & 3 and finally this Commission was compelled to make this case run ex parte against opposite party no.2 & 3.
Issues for consideration
- Whether the complainant is the consumer as defined in the Consumer Protection Act.
- Whether this Commission has territorial/pecuniary jurisdiction to entertain the instant petition.
- Whether there is any deficiency of service on the part of the opposite party.
- Whether the complainant is entitled to get any relief.
Decision with reason
Issue No. 1
In view of the above discussion and on examination of available records it transpires that the complainant is a consumer as far as the provisions laid down under Section 2(1)(d)(ii) of the Consumer Protection Act 1986 are concerned.
Issue No. 2
Both the complainant and the opposite party no.1 & 2 are resident/having their office address within the district of Hooghly.
The claim preferred by the complainant does not exceed the limit of Rs.20,00,000/-
Thus, this Commission has territorial as well as pecuniary jurisdiction to proceed in the instant case.
Issue No. 3 and 4
For the sake of convenience, these mutually inter-related issues are taken together. Materials on records viz. the complaint petition, written versions, evidence on affidavit and brief notes on argument filed by the complainant, and opposite party no.1 and other connected records are perused.
Now the opposite party no.1 in his written version, denying all the allegations leveled against them, decorates the complaint petition with several adjectives like ‘misconceived’, ‘frivolous’, ‘vexatious’, ‘speculative’ etc. They also claim that the instant case does not come under the purview of the C.P. Act. But no specific reason is assigned for such presumptions. The opposite party no.1 points out that in absence of an ‘expert opinion’ the allegation of defective refrigerator cannot be proved. It is also claimed that mere service of refrigerator twice or thrice cannot establish the manufacturing defects. The opposite party No.1 further states that the complainant failed to identify the defects of the refrigerator.
The opposite party No.1 claims that as the complainant failed to specify any defect and failed to produce any expert opinion, the instant complaint is liable to be rejected.
The opposite party No.1 puts stress on the issue that it is the manufacturer who can provide relief as per warranty clause and the opposite party no.1 being a retailer had no role to play. Thus, onus lies upon the manufacturer to take action in this regard. `
The complainant with his petition has submitted copies of tax invoice cum delivery challan, Annual Maintenance Contract advice, tax invoice related to AMC, mail communications related to lodging of complaints and responses thereof, sms sent by the manufacturer company and job sheets of the technicians attending the complaints.
Materials on records are perused.
It is apparent from the records, the submissions of the complainant as well as the opposite party No.1 and the circumstantial evidences that the refrigerator purchased by the complainant suffered from technical defect and in spite of several complaints and several visits of technicians the problem remained unresolved. The proposal for refund or replacement was cared a damn by the opposite parties. That the refrigerator was defective in the matter of cooling issues is beyond doubt and it did not require any expert opinion to establish that. At least, the complainant was not supposed to arrange any expert opinion.
The proposition extended by the opposite party no.1 that the ‘complainant failed to identify the defects of the refrigerator’ sounds funny as the complainant was not supposed to identify the defect but the technicians were entrusted to do so.
Hon’ble State Commission West Bengal in the case of Great Eastern appliances Pvt. Ltd. vs Bithika Bala on 8.3.2018 observed that a manufacturing defect is a problem that becomes part of the product while the same is in the making. The two most common causes of manufacturing defects are poor quality materials and carelessness in putting the product together or shoddy workmanship. A manufacturing defect is one that could be gotten rid of altogether, if the product were made with better quality materials or was made by a more careful and experienced worker. In Jose Philip Mampillil vs. Premier Automobiles ltd. and another, AIR (2004) SC 1529 the Hon’ble Supreme Court made it clear that the dealer/ agent would be as liable as the manufacturer. If it was legally possible, the dealer could later recover that money from the manufacturer, but as far as the consumer was concerned both were responsible, the Hon’ble Court observed. In case of M. Subba Reddy vs. Avula Venkata Reddy (R.P. No. 3282/2003, decided on 22.3.2007) the Hon’ble National Commission has been pleased to hold that since the dealer sales the product to a customer, complaint is definitely maintainable against it. If the seller has any grievance it is free to draw appropriate legal proceedings against the manufacturer to realize the awarded amount from the manufacturer.
In view of the above and on perusal of the case record and documents, this Commission is of the opinion that the refrigerator purchased by the complainant from the opposite party no.1 was defective and neither it was repaired nor replaced. Resultantly the complainant suffered a lot and unfortunately the opposite parties showed utter indifference towards the sufferings of the complainant. Deficiency of service on the opposite parties’ part was conspicuous. (contd.)
The Commission hereby directs the opposite parties either to replace the defective refrigerator by a new one of the same model or to refund back Rs.27000/- (cost of refrigerator) and Rs.2974/- (cost of AMC) within 45 (forty five) days from the date of this order. The Commission further directs the opposite parties to pay the complainant Rs.25000/- as compensation for mental agony and harassment and Rs.10000/- towards litigation cost. The opposite parties will be jointly liable to comply with this order. In the event of failure to comply with this order the opposite parties will pay cost of Rs.10,000/- by depositing the same in the Consumer Legal Aid Account.
Hence, it is
ORDERED
that the complaint case bearing no.26/2020 be and the same is partly allowed on contest.
Let a plain copy of this order be supplied free of cost to the parties or their authorized Advocates/Agents on record, by hand against proper acknowledgement or sent by ordinary post for information and necessary action.
