IN THE KODAGU DISTRICT CONSUMER DISPUTES REDRESSAL FORUM MADIKERI

SRI. C.V. MARGOOR,PRESIDENT

O R D E R

1. This complaint filed by Sri. Umesh.K.R @ Eshwarappa K.R s/o. Ramappa, resident of Kiggal Village, Madikeri Taluk, Kodagu District with a prayer to direct the opponents to rectify the defects of the refrigerator under  warranty and alternatively  to replace the same with new one.  It is further prayed to direct the opponents to pay a sum of Rs.20,000/- towards damages and Rs.5,000/- as cost of this proceedings.

2. The opponent no.1 is Managing Director, L.G. Electronics Pvt. Ltd., situated at Bengaluru and opponent no.2 Vandam Enterprises by its Proprietor Mr. Damodar situated at Madikeri Town.  The opponent no.2 is dealer of the opponent no.1 products.  The complainant had purchased LG Refrigerator bearing model GLU 372 JPXZ from the opponent no.2 on 20/12/2017 for Rs.37,900/-.  Within one month from the date of purchase the refrigerator was not functioning hence, the same was intimated to the opponent no.2.  The opponent no.2 got repaired the same for time being.  Again in the month of May, 2018 the problem started with regard to performance of refrigerator.  Then it was fully stopped functioning and it is not under working condition.  There after the complainant intimated and brought to the notice of the opponents but they did not care to rectify the defects.    The opponent no.2 used to say that he has registered the complaint.

3. It is the case of complainant that the refrigerator is under warranty period and there is manufacturing defect in the said product.  The opponent no.1 has supplied the substandard product through the opponent no.2.  Both the opponents have not given proper service to him and not rectified the defect during warranty period as such their acts amounts to deficiency in service.  The complainant has got issued legal notice to the opponents on 01/06/2018 and despite the service of notice the opponents neither provided service to the complainant nor replied.  Hence this complaint.

4. The opponent no.1 after the service of notice put in appearance through its learned counsel and filed written statement admitting that the opponent no.2 is their authorized dealer.  The opponent no.1 further admitted that the complainant had purchased LG refrigerator as alleged in the complaint from the opponent no.2 on 20/12/2017 for Rs.37,900/-.  The opponent no.1 admitted that the complainant has brought to the notice of opponent no.2 with regard to mal functioning of the refrigerator purchased by him.  However the opponent no.1 has denied rest of the allegation that this opponent and opponent no.2 have not attended the complaints with regard to functioning of the refrigerator.

5. It is the case of opponent that the impugned product is under warranty  not disputed by this opponent.  The complainant cannot compel this opponent to replace the impugned product at his whims and fancies. The said product is not even being inspected by the technician of this opponent company.   The opponent denied that the impugned product is having manufacturing defect and it has supplied substandard product.  The complainant has not produced report from the qualified technical person with regard to non-workability.  This opponent undertakes to abide the terms and conditions of the warranty to the complainant.  This opponent has never shirked away from its responsibility of providing service to the complainant.  The complainant has filed this complaint with false allegation to make unlawful gain in the garb of deficiency in service.  On the above reasons, the opponent no.1 asked to dismiss the complaint.

6. The opponent no.2 dealer despite the personal service of notice on 24/07/2018 was remained absent in this proceedings hence, he proceeded exparte.

7. The complainant filed his affidavit in lieu of evidence and got marked exhibits P1 to P4 documents.  On behalf of opponent no.1 one Vishwanath Bhat, Area Service Manager filed his affidavit in lieu of evidence and no documents have been produced on their behalf.

8. The learned counsel for the complainant and opponent No.1 have submitted written arguments andthe points that would arise for determination are as under;

1. Whether the complainant proves that the refrigerator supplied by opponents is having manufacturing defect?
2. Whether the complainant further proves that the act of opponents not rectifying the defects of the refrigerator amounts to deficiency in service?
3. What order?

9. Our findings on the above points is as under;

• Point No.1:- In the Negative
• Point No.2:- In the Affirmative
• Point No.3:- As per final order for the below

R E A S O N S

10. Points No.1 to 3- The opponent no.1 manufacturer of refrigerator in the written statement, affidavit evidence and arguments admitted purchase of refrigerator by complainant on 20/12/2017 through its dealer opponent no.2 for a sum of Rs.37,900/-.  The opponent has denied rest of the allegation that the said refrigerator is having manufacturing defect and it is sub- standard one.  The opponent no.1 in the written statement paragraph no.4 sixth line admitted that the complainant has intimated not functioning of the refrigerator and brought to the notice of opponent no.2.  However the opponent no.1 has denied that either opponent no.1 or opponent no.2 have not responded to the grievance of the complainant.

11.  It is the allegation of complainant that within one month from the date of purchase the refrigerator came for repairs and on intimation the opponent no.2 sent somebody for the rectification of the repairs and it was set right by the opponent no.2 for time being.  Thereafter in the month of May,  2018 once again the problem started with regard to performance of refrigerator and it was fully stopped functioning. Inspite of the intimation to the opponents they did not respond to his grievance.  The opponent no.1 contention is that the complainant has not produced any material with regard to manufacturing defect of the refrigerator.  The opponent no.1 has relied upon the case of Negi Sign Systems and Supplies Co. v/s Rijulize  Jacob 2016 (1) Consumer Law Today  353 (NC) where in under Sections 2(1)(g), 13 and 14(1)(d) of Consumer Protection Act that the onus was upon the complainant to prove that the machine/ printer purchased by him suffered from a manufacturing defect.  No technical evidence to prove defect.  The manufacturing defect not proved if only a part of the printer was defective, the complainant was entitled to replacement of that part and not to refund of the price of the machine.  On the same point the opponent no.1 brought to this Forum notice the Merk Ltd.(Formerly known as E Merck (1) Ltd.) Dr. Annie Besent Road, Worli, Mumbai and two others v/s Hubli Diagnostics Medicare & Research Centre Pvt.Ltd., Hubli 2010(1) CPR (NC) 118.

In the case on hand the complainant has not produced technical report to hold that the refrigerator purchased by him is having manufacturing defect.Except his oral allegation made in the complaint no material is placed before this Forum to hold that the refrigerator purchased by him is having manufacturing defect.In view of the decision of National Commission and in the absence of any technician report it has to be held that the refrigerator purchased by complainant from the opponents is not having manufacturing defect.

12. It is the allegation of complainant that since May, 2018 the refrigerator purchased by him is not functioning.  The opponent no.1 in the written statement paragraph no.4 admitted that the complainant has intimated and brought to the notice of opponent no.2 with regard to repair to be attended.  The opponent no.1 in paragraph no.5 of written version has taken different stand that as a matter of fact the impugned product is not even being inspected by the technicians of this opposite party company.  In the same paragraph the opponent in the beginning stated that the impugned product is under warranty is no where disputed by this opposite party.  The opponent contrary to the same, in the written arguments submitted by the opponent no.1 on 07/02/2019 in paragraph no.2 on page no.3 it is contended that the photograph has also been produced by these opposite party where in it is very evident that there is external damage which has been made physically by the complainant.  Again in paragraph no.4 page No.4 it is contended that the opposite parties technicians have visited the complainant house and examined the impugned product only to find that there has been an external damage to the impugned product and thus have reported back to the complainant stating that the same is not covered under warranty.

13.  The opponent no.1 in support of the written argument has not produced photograph of the refrigerator and intimation sent to the complainant stating that the same is not covered under warranty.  According to the written argument the opponent no.1 technician has  visited the house of complainant and examined the refrigerator and found that it was not functioning.  The opponent no.1 has not mentioned the date of visit and copy of intimation sent to the complainant along with photographs of the damaged refrigerator.  The admission of opposite party indicates that the refrigerator was not functioning within six months from the date of purchase.  The opponent no.1 has not disputed that the refrigerator is under warranty.  The complainant has sent exhibit P1 legal notice dated 01/06/2018 to the opponents with regard to non- functioning of the refrigerator and it contained the averments of complainant.  Exhibit P1 notice has been served on the opponent no.1 and 2 on 03/06/2018 and 04/06/2018 and that can be find vide exhibit P4 postal receipts and acknowledgement due.  The opponents neither attended the repairs nor replied to exhibit P1 notice inspite of personal service.  The complainant after waiting for three weeks has approached this Forum on 23/06/2018. In fact the refrigerator was functioning even after service of notice the opponents would have given reply or produced photographs which said to have taken by technician of opponents to know that refrigerator was damaged by the complainant or his family members.  In the absence of material on behalf of opponent no.1 it cannot be believed that the refrigerator is not functioning due to physical damage caused by the complainant or his family members.

14.  The refrigerator is not functioning within six months  from the date of purchase as such it is on the obligation of opponents to get it repaired since it is under warranty period.  The opponents neither rectified the defects of the refrigerator nor gave reply inspite of the personal service of exhibit P1 notice  dated 01/06/2018 as such the complainant was compelled to approach this Forum.  Therefore, the opponents shall liable to pay a sum of Rs.15,000/- towards physical and mental agony and cost of this proceedings to the complainant.  Accordingly, we proceed to pass the following;

O R D E R

1. The complaint filed by Sri. Umesh.K.R @ Eshwarappa K.R s/o. Ramappa is partly allowed directing the opponents 1 and 2 shall rectify the defects of the refrigerator purchased by complainant on 20/12/2017 within one month from the date of order.  In case the refrigerator could not be repaired then the opponents shall replace new refrigerator by taking old one within the said period.
2. It is further ordered that the opponents 1 and 2 shall liable to  pay a sum of Rs.15,000/- as compensation and cost of this proceedings to the complainant within one month from the date of order.  Otherwise it carries interest at the rate of 10% per annum from 23/06/2018 till its realization. 
3. Furnish copy of order to the complainant and opposite parties at free of cost.

(Dictated to the Stenographer, got it transcribed, corrected and pronounced in the open Forum on this 16^th day of FEBRUARY, 2019)

                                                      (C.V. MARGOOR)

                                                          PRESIDENT 

                                                    (M.C. DEVAKUMAR)

                                                             MEMBER