Orissa

Rayagada

CC/159/2019

Sri Santosh Mohapatra - Complainant(s)

Versus

The Manger, M/s Samsung India Electronics Pvt. Ltd., - Opp.Party(s)

Self

16 Sep 2021

ORDER

                     DISTRICT   CONSUMER DISPUTES  REDRESSAL COMMISSION, RAYAGADA,

AT:  KASTURI NAGAR, Ist.  LANE,   L.I.C. OFFICE     BACK,PO/DIST: RAYAGADA, STATE:  ODISHA, PIN NO.765001,.E-mail- dcdrfrgda@gmail.com

…

 

C.C.CASE  NO.__159_______/2019                                    Date.  16 .9. 2021.

 

P R E S E N T .

Sri   Gopal   Krishna   Rath,                                               President.

Smt.Padmalaya  Mishra,.                                                 Member

 

 

Sri  Sudeepta  Mohapatra, S/O Sri  Santosh Mohapatra, Near Jagannath Complex, Collectorate Road, Po/Dist:Rayagada   (Odisha).Cell No. 7978076647.                                                                        …. Complainant.

Versus.

The Manager,  M/S. Samsung  India  Electronics Pvt. Ltd., having its Regd. Office at A-25, Ground floor, front tower, Mohan Co-operative Industrial  Estate, New Delhi- 110044.                                            … Opposite parties.

 

For    the complainant :- Self.

For the O. Ps    :- Sri  K.Ch. Mohapatra, Advocate,  Bhubaneswar.

 

JUDGEMENT

The  crux of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for  non rectification of Samsung Refrigerator   which was found defective within warranty period and not removed the defects  for which  the complainant  sought for redressal of the grievances raised by the complainant.  The brief  facts  of the case are summarized here under.

That  the complainant    had  purchased  a Samsung  Refrigerator from the   Manager, Doordarshan Digital Shoppe, Beside over bridge, Station  Road,  Po/Dist: Rayagada  (Odisha)  on Dt.25.03.2018  on  payment  of consideration a sum of Rs.  39,000.00  bearing model No.  RT34M5538DP, product Sl.No. 041X4PBK300137E  vide   Tax  invoice  No. 2277 Dt.25.3.2018 .  The O.Ps. have   sold  the  said set to the complainant providing    warranty.          The above set   found defective  within the warranty  period. The complainant complained the matter to the  O.Ps from time to time, but  no  action has been taken by the O.Ps till date. Though he has given the service, but the same trouble continue.   Now the above set is unused.  Hence this C.C. case  filed by the  complainant and prays the  District Commission direct the O.Ps   to  refund the price of the  Refrigerator  and to order to pay  compensation and cost of  expenses and such other as the commission  deems fit and proper for the best interest of justice.

Upon  Notice, the O.P   put in their appearance and filed written version in which  they refuting allegation made against them.  The O.P   taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.P . Hence the O.Ps  prays the District Commission  to dismiss the case against  them  to meet the ends of justice.

Heard arguments from the learned counsel for the O.Ps   and from the complainant.    Perused the record, documents, written version  filed by the parties. 

This Commission  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.                                          

        FINDINGS.

There  is no dispute that   the  complainant has purchased  a Samsung  Refrigerator from the   Manager, Doordarshan Digital Shoppe, Beside over bridge, Station  Road,  Po/Dist: Rayagada  (Odisha)  on Dt.25.03.2018  on  payment  of consideration a sum of Rs.  39,000.00  bearing model No.  RT34M5538DP, product Sl.No. 041X4PBK300137E  vide   Tax  invoice  No. 2277 Dt.25.3.2018-. The O.Ps. had   sold  the  said set to the complainant providing  one year warranty period. (copies  of the       bill    is in the file which is marked as Annexure-I ).

After  using  some  months i.e with in the warranty period  the complainant  has  shown  defective in the above set and  it became   sound problems. Hence   the complainant  approached the  service centre  situated at Rayagada(Odisha)  for its rectification.  But the   Service centre had not rectified the  same  defective  within the warranty period.

            The main grievances of the complainant is that due to non  rectification of the  above  set perfectly  within warranty period  he wants  refund  of purchase  price of the above set. Hence this C.C. case.

The O.Ps  in  their written version contended that  the complainant had not  approached the O.P.  for the defect or the defect could not removed from his alleged  set  and also if the service centre   has no knowledge regarding any allegation of defect  of the alleged  set prior  to filing  of this case, then how the cause of action will arise against the O.Ps on absent of knowledge  about any defect of the alleged set.  Further if the complainant fails to produce  any evidence regarding  he has approached to the O.P. (Manufacturer) about non rectification  of the defect from the alleged  set prior to filling this case before forum, then how this complaint  will stand  against  the O.P.  ?  The complainant has not come with clean hands before this forum.   The complainant has not mentioned any date on which day defect persisted in his set and no where he had stated  that on which day & on which way  informed either the O.P.    or the service centre, Rayagada about  non rectification of the defect  from his alleged set.  Also the complainant has no where alleged   that the  Service centre, Rayagada has committed the deficiency in service because the O.Ps are not  the service provider.

The O.Ps are   taking one and another pleas in the written version and had mentioned  a lot of citations of the Apex  courts and   sought to dismiss the complaint as it is not maintainable  under the C.P. Act

It is well presumed that, the product has latent defects, which the O.Ps.  authorised service centre of the Manufacturer of the above set failed to rectify.  Even after the complaint, the O.Ps did not feel their responsibilities  to get the grievance of their customer redressed  or get the set  replaced .

We have perused the warranty card issued by the O.P. with the product. It carries  warranty.

With respect to goods sold to consumers within the meaning of the Consumer Protection Act 2019 ,(hence after called “the Act” )  its provisions provide for a warranty of quality against latent defects, a warranty of use and a warranty of durability considering the price, contract and normal conditions of use of the product, in addition to prohibitions respecting false representations in the contract or in advertisements. Pursuant to product liability in the Act, the seller is bound to warrant the buyer that the property and its accessories are, at the time of the sale, free of latent defects. If the seller was aware or could not have been unaware of the latent defect, he is bound not only to restore the price, but also to make reparation for the injury suffered by the buyer  which includes all direct damages caused to the buyer, including loss of profits.

Moreover, in a consumer contract, a seller may never invoke his lack of knowledge of the defect where the purchaser's claim is based on the statutory warranties under the CPA, and any clause that seeks to limit the implied warranties of quality and fitness is strictly prohibited and may even result in award of punitive damage.

Express warranty is defined in the C.P.A-2019 which is reproduced here as follows-

Sec. 2 (20) "express warranty" means any material statement, affirmation of fact, promise or description relating to a product or service warranting that it conforms to such material statement, affirmation, promise or description and includes any sample or model of a product warranting that the whole of such product conforms to such sample or model;”

The Legal presumption of product liability in a contract of sale, is that, a defect is presumed to have existed at the time of the sale if the product malfunctions or deteriorates prematurely in comparison with identical property or product of the same type; such a presumption  can only be  rebutted by the seller or the manufacturer if the defect  was  due to improper use of the product  by the buyer.

This legal presumption significantly lessens the burden of proof on the buyer who, instead of having to prove the existence of a  inherent  defect at the time of the sale, which is impossible for an ordinary buyer without any technical knowledge of the hardware or software of an electronic product, only has to show that the product has deteriorated or malfunctioned prematurely compared to similar goods. Once this has been proved, it is presumed that the product had a an inherent  defect at the time of sale.

On the other hand, where the presumption of product  liability  is applied,, the seller must be able to show, on the balance of probabilities, that the probable cause of the defect is attributable to the negligence of a buyer  to rebut the presumption. He has to demonstrate, that, there could not be other cause than the negligence of the buyer to have the cause of defect in the product. But it can  not be said to be sufficient for the seller or the manufacturer to raise the argument that the defect could have several causes and that the precise cause of the defect cannot be determined.

Mere blunt denial of  guarantee of the warranty for the product and repudiate the claim of the consumer without establishing the case of defect beyond any other probabilities, as made by the O.P.1 i.e. the manufacturer can never expunge him of the liability to refund the price of the product and compensate the Complainant for the mental agony and loss of business.

From the above discussions and perusing the submissions filed by the complainant, we have carefully verified the alleged set which is left totally defunct. It is further noticed that, the OPs despite receiving notice of this forum  have failed to take any initiations to settle the matter of complainant and there is nothing to reject the contentions of complainant that, he has suffered from mental agony and loss of ability coordinating his official job. Hence we feel that the action of OP is illegal, highhanded and unfair which amounts to deficiency in service and hence found guilty under 2(11)   of the C.P.Act 2019, hence the complainant is lawfully entitled for compensatory relief. As thus the complaint is allowed against the O.Ps.    

In view of the above discussion relating to the above case and  In Res-IPSA-Loquiture  as well as  in the light of the settled legal position  discussed  as above referring citations the plea of the  O.Ps to avoid the claim  which is Aliane Juris.  Hence  we allow the above complaint petition  in part.

Hence  to  meet the  ends of justice, the following order is passed.                                                                  

 

O R D E R

            In  resultant the complaint petition  is allowed  on contest against the O.Ps.

The O.P  (Manufacturer)  is  directed to refund  the  purchase price of the  Refrigerator   a sum of Rs.39,000/-  (Rupees  thirty nine thousand)only to the complainant  inter alia  to pay  Rs.10,000/-(Rupees  ten thousand)only  towards compensation  and litigation expenses   for mental agony and negligence of the O.Ps.

       .The entire directions shall be carried out with in 45 days from the  date of receipt   of this order.

            Dictated and  corrected by me.

            Pronounced in the open forum on      16^th.     day of    September, 2021.

 

 

                                                               MEMBER                                  PRESIDENT