IN THE CONSUMER DISPUTES REDRESSAL  FORUM, KOLLAM

Dated this the    19^th      Day of  November  2019

  Present: -   Sri.E.M.Muhammed Ibrahim, B.A, LL.M. President

                   Smt.S.Sandhya Rani, BSc,LL.B, Member

                   Sri.Stanly Harold, B.A,LLB, Member    

                                                               CC No.156/17

Y.Thajudeen Koya                                      :         Complainant

District&Sessions  Judge(Rtd.)

Happy Dale,Chandanathoppe P.O

Kollam-691014.

[By Adv.A.Jani]

V/s

1. The Manager                            :         Opposite parties

L.G Electronics India Pvt.Ltd.

A Wing(3^rd Floor) D-3

District Centre Saket

New Delhi-116017.

[By Adv.R.Padmaraj]

2. The Manager

Nandilath G Mart

Global Electronics and Home appliances Plaza

Door No.111-1448/807(A)

14449/807(B), Q.S Road

Kadappakkada, Kollam-691008

[By Adv.S.Riyas]

3. The Manager

Elegant Service Pearl View 32/29

Anchukallummoodu, Thirumullavaram P.O

Kollam-691012.

[By Adv.R.Padmaraj]

                                                             2

FAIR  ORDER

S.Sandhya Rani, BSc,LL.B, Member

            this is a case based on a complaint filed u/s 12 of the Consumer Protection Act.  The averments in the complaint in short are as follows:-

          The complainant is a retired District and Session Judge residing along with his family members at Chandanathoppu.  The 1^st opposite party is the manufacturer of various electronics appliances.  The 2^nd opposite party is the dealer of  various electronics appliances of LG Refrigerator and its authorized branch office of the 1^st opposite party and 3^rd opposite party is the authorized service centre of LG Refrigerator.  The complainant purchased  one LG Refrigerator Model No.GLB 292 SSPMSP on 10.10.2015 from the 2^nd opposite party as per retail invoice No.KLM 9883 by paying Rs.20700/-.  The warranty period of the refrigerator is 10 years and that fact was inscribed on the door of the refrigerator itself.  The refrigerator was found defective and non functioning on 10.12.2016.  The  matter was immediately informed to the 2^nd opposite party on the same day itself and the complaint was also registered.  The matter was also informed to 3^rd opposite party.  Accordingly the technician deputed by the 3^rd  opposite party examined the refrigerator and the complainant was  informed that the refrigerator became defective and  it is not functioning due to the complaint of the main board.  Even though there is warranty of 10 years 2^nd and 3^rd opposite party informed the complainant    that   the warranty period of 10 years was not applicable to the main board    and    also   demanded  to pay Rs.4000/- for replacing the main board.  The complainant objected the payment of the above amount on the ground that the warranty period is applicable to the main board also.  Negotiation took place and finally    the   complainant  was   compelled to pay Rs.2254/- and there by the main

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board was replaced and the refrigerator started functioning from 22.12.2016 onwards.  However the said refrigerator again became  defective on 31.01.17.  Hence the matter was again reported to the 2^nd opposite party and the technician of the 3^rd opposite party examined the refrigerator and informed the complainant that the main board again become defective.  Hence the main board again replaced on 02.02.2017.  Since there are repeated complaints of the mother board the 3^rd opposite party informed the complainant that in case of further defects the complainant has to pay the price for replacing the mother board.  The 3^rd opposite party has also put forward a suggestion that the complainant has to take additional warranty for a period of 3 years.  Since the complainant has  no other alternative and also to avoid further payment for replacement of spare parts of refrigerator accepted  the  suggestions unwillingly  and taken additional warranty for 3 years from 14.02.17 to 13.02.2020 on payment of Rs.3713/-.

  However the refrigerator again found non functioning on 12.03.2017.  The matter was again reported to 2^nd and 3^rd opposite party and the technician again examined the refrigerator on 13.03.2017 and found that the mother board was again found defective.  Hence technician returned and again came and examined the refrigerator on 16.03.2017 and found that another spare part of the refrigerator was also defective.  Hence he again returned and came back on the next day and repaired the refrigerator by replacing the mother board and the defective spare parts.  While so, the refrigerator again became defective on 12.04.17.  So the matter is again reported  to the   2^nd  and 3^rd opposite parties and  the complainant put forward a demand to the 2^nd and 3^rd opposite  parties to replace the   refrigerator itself being fed up with the repeated complaints of the refrigerator, since the complainant realized that the repeated complaints of the refrigerator took place due to the manufacturing defect of the refrigerator.  The opposite parties 1 to 3 are fully

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aware of the fact that in spite of repeated complaints and repeated replacement of the main board the refrigerator is not properly functioning.  They ought to have understood that such repeated complaints have occurred only due to the manufacturing defect of the refrigerator.  Even the complainant also entertained suspicion regarding the same on the date of purchase of the refrigerator itself.  All the opposite parties have adopted unfair trade practice.   The 1^st opposite party manufactured defective refrigerator and handed over the same to the 2^nd opposite party which is the  branch office of the 1^st opposite party for selling the same to the consumers and the 2^nd opposite party knowing full well that the refrigerator is having manufacturing defect fraudulently sold the same to the  complainant for a consideration of Rs.20700/-. 

The service rendered by all the opposite parties was unfair and not good.  There is huge deficiency  in service on the part of  opposite parties causing severe damages, loss and mental agony to the complainant  on each occasion of the complaint of  refrigerator.  The complainant sustained heavy damages and loss due to damage of food articles kept therein and mental agony due to the reason that the refrigerator could not be used for many days.  The complainant purchased the refrigerator from the 2^nd opposite party believing on the false representation that it is worth and properly  functioning but it was otherwise because the refrigerator became defective and non functioning within 14 months and thereafter. 

The complainant sent advocate notice to the opposite parties on 30.06.2017 with a request of replacement of the defective refrigerator with a brand new one.  No reply notices has   been sent by the opposite parties so far.  A refrigerator worth Rs.20700/- is not expected to work properly for a very short period of 14 months.  The opposite parties never obliged to accept the suggestion made by the complainant for  replacement  of  the refrigerator without any valid reason.  The 1^st

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and 2^nd opposite parties are jointly and severally liable and responsible for the sale of refrigerator having manufacturing defect.  Therefore they are legally bound to replace the old refrigerator with a new one.  The complainant is also entitled to get Rs.25000/- as compensation  for the mental agony and loss suffered by him.  The complainant also sustained huge loss by way of damages to food articles kept in the refrigerator as a result of its repeated complaints.  Similarly the complainant is also  not able to use  the refrigerator from 12.03.2017 onwards.  Therefore  the complainant is also entitled to get reasonable compensation for the non use and that compensation is approximately fixed as Rs.25000/-.

          Opposite parties 1 to 3 entered appearance in response to the notice and resisted the complaint.  Opposite party 1&3 filed a joint written version and opposite party 2 filed separate version.  However all the opposite parties would admit the following facts in their written version.  The complainant purchased one LG refrigerator from 2^nd opposite party on 10.10.2015 by paying a sum of Rs.20700/-,  that the 1^st opposite party is the manufacturer and the 2^nd opposite party is the dealer from whom the 1^st opposite party purchased the LG refrigerator and that the 3^rd opposite party is the authorized service centre of the 1^st opposite party.  It is further admitted that the 3^rd opposite party has offered  warranty and the dealers of the warranty clearly mentioned in the warranty card.  Warranty is always given by the manufacturing company and not by the dealer.  They would further admit that the complainant had lodged a complaint and the 2^nd opposite party forward the complaint to the 3^rd opposite party and the technician deputed by the 2^nd opposite party visited the defective product and rectified the defects. 

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However  in the joint version filed by opposite party 1&3 it is contented that on receiving the 2^nd complaint in the service centre on 31.01.2017  an inspection was conducted and it was found that the refrigerator was not working due to earthing problem  in the complainants house and the same was rectified and made the refrigerator in a working condition.  The allegation that the refrigerator was found not functioning on 12.03.17 and 12.04.2017 may not be factually correct.  No such service calls were recorded.  The 2^nd complaint was actually received on 01.05.2017 and there was problem in the main board which being an electrical part  which getting complaint is not abnormal which depends on various factors including electricity fluctuations from supply lines.  The 1^st and 3^rd opposite party was ready to replace the main board free of cost as it was in the AMC period.  But the complainant was not prepared for the same and insisted for replacement of the refrigerator itself.  Since there is no manufacturing defect opposite parties cannot accept the same and the opposite parties were ready and willing to do service of free of costs during the entire AMC period.  It is further contented that the complaints occurred to the refrigerator was only normal complaints which may occur due to various factors including  voltage fluctuation occurring due to lightning or short circuits in the wiring of the house etc.    Compensation claim is exorbitant which cannot be directly attributed to any deficiency in service by the opposite parties.

          In the separate version filed by the 2^nd opposite party it is further contented that they have not received any amount towards rendering service.  The 1^st opposite party manufacturing company had given facilities as per the warranty conditions and   the   2^nd  opposite party  had  given prompt and proper service whenever    the complaint approach them.  If at all the Forum is inclined to grant any compensation

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the    1^st opposite party   which is the manufacturing company alone is liable for the same.  All the opposite parties would further content that there is no cause of action in the complainant and there is also no deficiency in service or unfair trade practice on the part of the opposite parties and hence the complainant is not entitled to get any relief prayed for and  also pray to dismiss the complaint with their costs.

          In view of the above pleadings the points that arise for consideration are:-

1. Whether there is any deficiency in service or unfair trade practice on the part of the opposite parties as alleged in the complaint?
2. Whether the complainant is entitled to get replaced the old refrigerator with a brand new one without charging any amount?
3. Whether the complainant  in  the alternative is entitled to get refund the value of refrigerator with   reasonable interest and also amount of Rs.3713/- paid as additional warranty for 3 years Rs.2254/- being the value of replaced main board?
4. Whether the complainant is entitled to get compensation if so, what would be the quantum of compensation to be awarded?
5. Reliefs and costs.

Evidence on the side of the complainant consists of the oral evidence of PW1 and Ext.P1, P2, P3 Series, P4 series to P9.  Evidence on the side of the opposite party consists of oral evidence of RW1.  No documentary evidence has been adduced on the side of  any of the opposite parties.  Both sides have filed notes of argument. Heard both sides.

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Point No.1 to 4

          For avoiding repetition of discussion of materials these 4 points are considered together.  Admittedly the complainant purchased one LG refrigerator from    2^nd    opposite party  dealer  on 10.10.2015 by paying a sum of  Rs.20700/-.  According to the complainant the refrigerator is having warranty of 10 years.  The opposite parties would deny the same and would content that 10 years warranty is applicable only to the compressor and all other parts the warranty is for 1 year from the date of purchase and hence the warranty period expired as early on 09.10.2016.  Now it is to be considered whether the refrigerator is having  10 years warranty as claimed by the complainant.

          The specific case of the complainant is that warranty period of the refrigerator is 10 years and the fact is inscribed on the door of the refrigerator itself.  It is also brought out during further cross examination of PW1 that at the time of selling the refrigerator the 2^nd opposite party has made him to believe that the refrigerator is having 10 years warranty and they used to make  advertisement stating that the refrigerator is having 10 years warranty. However the refrigerator  was found defective and non functioning on 10.12.2016 which  is after 1 year and 2 months of its purchase.  The complainant has pleaded this aspect as last sentence in paragraph No.2 of the complaint.  Ext.P1 and  Ext.P2 are the copy of the lawyer notice sent on behalf of the complainant wherein also it is stated that the warranty period of the refrigerator is 10 years and that fact is inscribed on the door of the refrigerator itself.  The opposite parties have not issued any reply notice disputing the warranty period.  The 2^nd opposite party is the retail seller from where the complainant has purchased the disputed refrigerator.  According to the 2^nd opposite party the 1^st opposite party is the manufacturer and the 3^rd opposite party is the service    provider of    the   said  refrigerator and  the 1^st opposite party had offered

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warranty.  The details  of    the warranty are mentioned in the warranty card by the 1^st opposite party.  Admittedly   the warranty  is always given by the manufacturing company and not the dealer.  The specific  contention of the 1^st and 3^rd opposite party in this regard is that 10 years warranty is only for the compressor which is clearly mentioned in  the users manual supplied  to the complainant.  All other parts got warranty only for 1 year from the date of purchase.  Therefore the warranty period  expired  on 09.10.2016.        It is cristal clear from the available materials that at the time of purchase the 2^nd opposite party dealer has exhibited 10 years warranty which is  inscribed at the door of the refrigerator and the complainant was attracted by   the   offer found exhibited on the  refrigerator and purchase the same.  Though  the above version of the complainant pleaded in the complaint and re-iterated by him in the lawyer notice and proof affidavit the opposite party has not specifically denied the same.  Therefore it is cristal clear that by believing the written representation found inscribed  on the refrigerator, the complainant had purchased the same.  What is written (inscribed) on the face of the  refrigerator  itself is a warranty and even if anything is written in the   warranty card as claimed by the opposite parties (to the effect that the actual warranty for the refrigerator is only for 1 year and 10 years warranty is for compressor only) it cannot be considered at all in the light  of what is exhibited on the face of the refrigerator especially when it is clear that the complainant has purchased the refrigerator by seeing that the same is having 10 years warranty as exhibited on the face of the refrigerator. 

It is true that on 02.02.17 the 3^rd opposite party who is the authorized sales service centre of LG refrigerator demanded to take annual maintenance contract( additional warranty) for future maintenance of the refrigerator so as to avoid further payments.  But according to the complainant as the refrigerator has become

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defective 5 times within 2 years he  was forced to take additional warranty, even though 10 years warranty is available by paying Rs.3713/-.  According to  PW1  he was constrained to take additional warranty though the original warranty for 10 years exists as he intends to get the refrigerator repaired urgently  for his personal use.  In the circumstance we are of the view   that the complainant  is entitled to get back Rs.3713/- from the opposite parties being the amount towards AMC(additional warranty) as  the opposite parties are bound to render free service during the existence of original warranty.

          It is clear from the oral evidence of PW1 and Ext.P1,P2,P5 to P9 documents that the refrigerator purchased as per Ext.P5 document has become non functioning and after verification of the defect the technician  deputed by 1^st opposite party has found that the reason for non functioning of the refrigerator is due to the complaint of main board.  There    is   no   dispute  that the main board of a refrigerator  is the main component of that product.  If one of the main component  is defective and the refrigerator has become functionless just after 1 year and 2 months of starting its use it is undoubtedly a manufacturing defect of the product.  It is also brought out in evidence that the 3^rd opposite party has repaired the refrigerator by  replacing the main board and charged Rs.2254/-,   though the same has been done within the warranty period.  Therefore the complainant is entitled to get refunded Rs.2254/- charged from him  for replacing the main board. 

          The learned counsel appearing for opposite party No.2 has argued that there is no expert evidence to show that disputed refrigerator is having any manufacturing defect and therefore the complainant has failed to establish his case.  In view of the materials available on record  we find no merit in the above argument.  The opposite party No.1 to 3 have unanimously admitted in their written version    that    the   mother  board  of the disputed refrigerator has become

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defective.  PW1 has clearly explained why he has not subjected the refrigerator for an expert verification in the following words.  A\-ym-b-¯nse  hnh-c-§Ä ]{Xn-I-bn \ntj-[n-¡m-¯-Xp-sIm­mWv expert s\ sh¡m-¯-Xv. Manufacturing defect Cà ta¸Sn {^nUvPn\v  F¶v ]{Xn-I-bn Hcn-S¯pw ]d-ªn-«nÃ.

It is well settled that admitted/undisputed facts need not be proved by a party to the litigation.  According to the complainant the mother board has become defective for 5 times.  But according to the opposite parties it has become defective only 3 occasions and replaced the same by collecting its charges. Main board or mother board as the name indicates is the main components of a refrigerator.  One refrigerator purchased by paying Rs.20700/-    is expected to be used at least for a period of 10 years during the warranty period as indicated in the refrigerator itself.  If the main component itself has become defective it can be safely concluded that the product is having manufacturing defect.   In the circumstance no expert is required to be deputed for verification and also to  prove the manufacturing defect of the product. As it is proved  that the refrigerator is having manufacturing defect the complainant  is entitled to get replaced the defective refrigerator by a brand new one.

          Admittedly the 2^nd opposite party  is the authorized dealer of the LG Refrigerator manufactured by the 1^st  opposite party.  Hence the 2^nd opposite party is bound  to ensure the efficiency of the product exhibited  in   their shop especially when 10 years warranty is exhibited on the product itself.   But in this case the 2^nd opposite party has not seen made any attempt to ensure that the refrigerator is defect free   and    there   is no manufacturing defect for the product.  The evidence

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available on record would clingingly establish that the LG Refrigerator purchased from the shop of the 2^nd opposite party has become non functioning for 4-5 times in a  short  span of  time  during the warranty period and the same remains with the very same defect even now without any use.  The complainant has also caused to replace the main    board on  several occasions. It is clear from the available materials that  the repeated complaints of main board occurred in the disputed refrigerator is due to manufacturing defect.

Though the opposite party would content that as per Ext.P6  warranty the refrigerator  is having only 1 year warranty from the date of its purchase and 10 years warranty is only applicable to the compressor and all other parts is having only 1 year warranty.  But this fact is not clearly mentioned in Ext.P6 warranty card,  what is written is in a vague language which is not acceptable especially when 10 years warranty is exhibited in the product itself.  Exhibiting 10 years warranty on the refrigerator so as to attract the customers and to give one year warranty as claimed  by the opposite party during  sale  after receiving sale consideration is undoubtedly an unfair trade practice.

 It is further to be pointed out at even if Ext.P6 warranty card it is stated that 10 years warranty is for compressor alone and all other parts which have only 1 year warranty, the said warrantee card  is not acceptable at all since it does not contain the signature of the parties and seal of the 1^st or 2^nd opposite parties.  Last clause of the alleged  warranty (Ext.P6) itself would indicate that the warranty is applicable only when warranty card bears the rubber  stamp, date and signature of the    authorized dealer.  There is no  dispute regarding the fact that the  refrigerator

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was purchased  from  2^nd opposite party who is the authorized dealer of LG refrigerator. If he intends to issue a written warranty he ought to have filled up all columns such as model number, unit, serial number, date of purchase,    customers   name  and   address, dealers   name  and address, telephone number of both parties and signature of both parties.   The last sentence of P6 warranty paper it is stated that this card is valid only if it is filled in and stamped by  our authorized dealer  on  the date of purchase.  Here in Ext.P6 warrantee card  the stamp, signature, name and address of the vendor and purchaser etc are not stated at all.  It is further to  be pointed out that the 2^nd opposite party when he was in  the box as RW1 has not given  any satisfactory explanation why he has not filled up the warranty card and not stamped   the   same  and also not stated the date of purchase of the refrigerator.  Though RW1 would claim in his proof affidavit that LG Company which manufactured the refrigerator has given only one year warrantee but the same is not believable and acceptable as the said company (OP1) itself has inscribed on the front portion of the refrigerator that the product is having 10 years warrantee.  In the circumstance  the issuance of an unfilled warranty card itself would indicate that  the said warrantee card is not  a proper warranty  but what  is exhibited on the refrigerator is the proper warranty wherein it is stated that the refrigerator is having 10 years warranty.  Of course  Ext.P6  warranty has been produced and got marked by the complainant.  But the complainant  is not expected to fill up the same affix the signature of the opposite party dealer and also affix the stamp.  All these aspects has to be  done by the dealer while effecting the sale of the product.  Non issuance of proper written  warranty for a product like refrigerator  of course  amounts to deficiency in service as well as unfair trade practice. It is also clear from the available materials that the complainant has sustained   much  mental agony  apart from financial loss due to the manufacturing

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defect of the refrigerator.  It is clear that the complainant has used the LG Refrigerator   for 14   months  without any defect and thereafter it has   become defective.  Therefore the complainant is entitled to get a brand new and defect free refrigerator only on payment of Rs.15% of its price since the complainant used the refrigerator for about 14 months.  In the circumstance the complainant is entitled to get reasonable compensation apart from getting replaced a defect free refrigerator on payment of 15% of its market value.  The points answered accordingly.

Point No.5

          In the result the complaint stands allowed in the following terms.

          Opposite party No.1&2 are directed to replace the disputed refrigerator with a brand new refrigerator of the same value and same specifications within a period of 45 days from the date of receipt of a copy of this order on  condition that the complainant shall cause production of  the defective refrigerator at the shop  of the 2^nd opposite party along with demand draft for  15% of the value of Rs.20,700/- within 15 days from the date of receipt of a copy of this order and in such event the opposite party No.1&2  shall replace the defective refrigerator with a brand new one as stated above failing which the complainant is at liberty to realize 85% of the value of the disputed refrigerator amounting to Rs. 17595/- to the complainant within 45 days failing which  the complainant is entitled to realize Rs.17595/- with interest @ 9% p.a from the date of complaint till realization and transportation cost of the refrigerator  from opposite party No.1&2 and from their assets.

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          Opposite party No.1 to 3 are also directed to return Rs.3713/-  received as AMC(additional warranty) and Rs.2254/- charged for replacing the main board and also Rs.5000/- as   compensation  and Rs.3000/- as costs of the proceedings  within a period 45 days from today failing which the complainant is entitled to recover Rs.28,562/-(17595+3713+2254+5000) with interest @ 9% p.a from the date of complaint till realization with costs Rs.3000/- and transportation charges from opposite party No.1 to 3 and from their assets.

 Dictated to the  Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the  19^th     day of  November 2019.         

E.M.Muhammed Ibrahim:Sd/-

           S.Sandhya Rani:Sd/-

          Stanly Harold:Sd/-

          Forwarded/by Order

          Senior Superintendent

INDEX

Witnesses examined for the complainant:-

PW1                :           Y.Thajudeen Koya

Documents marked for the complainant

Ext.P1:-Legal notice

Ext.P2:- Legal notice

Ext.P3:-Postal receipts

Ext.P4:-Acknowledgement card

Ext.P5:-Copy of retail invoice.

Ext.P6:-Copy of warranty

Ext.P7:-Copy of retail invoice(Rs.288/-)

Ext.P8:- Copy of retail invoice(Rs.2254/-)

Ext.P9:-Copy of record produced by the complainant

Witnesses examined by opposite parties:-

RW1                :           Sebin.K.Johny

E.M.MuhammedIbrahim:Sd/-

S.SandhyaRani:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

Senior Superintendent