Orissa

Rayagada

CC/155/2017

Smt. Darshana Devi Jain - Complainant(s)

Versus

The Regional Manager, LG Electronices India Pvt. Ltd., - Opp.Party(s)

Sri V.R.M. Patnaik

18 Dec 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

                                      PO/DIST; RAYAGADA,   STATE:  ODISHA ,Pin No. 765001

C.C. Case  No.   155/ 2017.                                      Date.   18         12   . 2018.

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                                                   President

Sri GadadharaSahu,                                                                        Member.

Smt.Padmalaya  Mishra,.                                                              Member

 

Smt. Darshana Devi  Jain, W/O: Sri Dharmendra Kumar Jain, New Colony, Near Sai Mandir,  Po/  Dist:    Rayagada, State:  Odisha.   Cell No.94370-25357..                                                                                                                                                                                                    …….Complainant

Vrs.

1.The Manager, L.G.Electronics India Pvt. Ltd., A wiwng, 3^rd. floor, District Centre, Saket, New Delhi.

2.The  Proprietor, Jain Enterprises, New Colony, Rayagada,.(Odisha).    .…..Opp.Parties

Counsel for the parties:                                 

For the complainant: - Sri V.Ram Mohan Patnaik, Advocate, Rayagada.

For the O.P. No.1:- Sri S.K.Mohanty, Advocate, Bhubaneswar

For the O.Ps  No.2  :-.Set Exparte 

                                                JUDGEMENT.

The  curx of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for  non refund of price of the A.C. set a sum of Rs.25,500/- towards found defective after warranty period     for which  the complainant  sought for redressal of the grievances raised by the complainant.

Upon  Notice, the O.P No.1   put in their appearance and filed  written version through their learned counsel in which  they refuting allegation made against them.  The O.P No.1   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 No.1.   Hence the O.P  No.1 prays the forum to dismiss the case against  them  to meet the ends of justice.

Upon  Notice, the O.P No.  2  neither entering in to appear before the forum nor filed their  written version inspite of more than  10 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.P No. 2 .  Observing lapses of around 1year  for which the objectives  of the legislature of the C.P. Act going to be destroyed to the prejudice of the interest of the complainant.  Hence after hearing  the  counsel for the complainant set the case  exparte against the O.Ps 2. The action of the O.P No. 2 are against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.P No.  2  was set exparte  as the statutory period  for filing of  written version was over to close the case with in the time frame permitted by the C.P. Act.

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

This forum  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.

                Undisputedly the complainant had  purchased  the L.G.Brand A.C. on payment of consideration   a sum   for Rs.25,500/- to the  O.P. No.2 (copies of the  Retail invoice No. 623 Dt.26.01.2011  is in the file which is marked as Annexure-I).  Further there is  AMC  contract with the O.P. No.1  which is valid till 1st. September, 2017  on payment of consideration a sum of Rs.3,084.00  on Dt.02.09.2016.(copies of the  same is in the file which is marked as Annexure-2).

                The main grievance of the complainant  is that   the above set is giving  various problems  such as  some machineries  found  defective,  cooling problem   within  AMC  period  inter alia   said  set is not at all in working condition  totally damaged  in spite of repeated attempt by the service engineer of the L.G. company.  The  complainant  in their petition  mentioned that  he has   complained   to the  O.P. No.1’s` Service centre  in shape of E-mail on Dt. 26.6.2017 but till date no action has taken by the O.P No.1 . So the  complainant  had requested    the O.Ps   to replace or refund purchase  price of the above set but the O.Ps  have     turned deaf ear.  Hence this C.C. case.

                The O.P. No.1 in their written version contended that  the complainant  was utilized the above set for commercial purpose in a store room. It is submitted that alleged  set is designed for domestic  use and nor for use in store rooms.  Even utilization of the  above set  in a store room was not advised to complainant. The alleged defect in the above set is due to utilization  in adverse circumstances and  beyond its  capacity.  Apart from   that complainant is not covered under the definition of consumer as alleged set was purchased for residential use but admittedly utilized for commercial purpose. There being an agreement in shape of Annual Maintenance Contract, no claim can be  made by either party which is specifically not admitted in it.  This is not a  case of silence of contract  and the relief claimed beyond terms of contract is not maintainable as Forum  can not form new contract as held in Suraj Ram Niwas Oil Mills Pvt.  Ltd Vrs. United India Insurance Co. Ltd. & Anr. 2010(10) SCC  567, where  in the Hon’ble Supreme Court observed “ That the terms of a contract of insurance have  to  be strictly construed and no exception can be made on the ground of equity. The  Hon’ble  Supreme Court further observed  “26. Thus, it needs little emphasis that in construing  the terms of a contract of  insurance, the words  used therein must be given paramount  importance, and it is not open for the court to add, delete or substitute  any words.  It is also well settled that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered  by the  policy, its terms have to be strictly  construed to determine the extent of liability  of the insurer. Therefore the endeavour of the court should always be to interpret the words  in which the contract  is expressed by the parties”.  It is further held in  General Insurance Society Ltd. Vrs. Chandumull Jain  & Anr.  Reported in 1966 (3) SCR -500  where the Hon’ble Supreme Court observed “In interpreting documents  relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for  the court  to make a new contract, however reasonable, if the parties have not made it  themselves”.  The terms  of agreement  executed  among part is to be given utmost priority, while adjudicating a complaint or dispute arising out of it, as parties are bound by the terms and conditions of agreement  agreed among them.  Under limited and agreed terms of agreement , complainant can not claim  business loss  sustained by him in the present consumer complaint which is not maintainable being a claim beyond jurisdiction of District Consumer Forum.  The alleged complaint is one governed by  the limited  and agreed terms of contract of Annual Maintenance  Service, for which relief’s claimed beyond said terms, is not maintainable. As per limited  and agreed terms and conditions of AMC O.P. assures to render free service and repair the A.C. if required by changing certain (New of reconditioned) parts only, in case of any  complaint is lodged before its authorised service centre with in AMC in force.  On Dt. 30.4.2017 for the first time  a complaint is lodged alleging “less cooling” and on inspection it is detected that replacing minor component namely “Condenser” the performance of A.C. will be perfect as per standard  norms, and claim  being  during AMC on force, complaint was registered vide job card No.  RNP 170430079186. Parties are bound by the terms and conditions agreed among them. The terms of AMC clearly runs as follows:-  “While every effort shall be made to give preferential attention to emergency breakdown of the equipment, the company shall not be held responsible for any loss arising”.  After registering complaint  technical persons immediately deputed to inspect the A.C. and on inspection it is detected that  “CONDENSOR” of the air  conditioner will improve its cooling capacity and for which service centre lodged its requisition  to local branch office and on receipt of requisition “CONDENSOR” was  dispatched from branch office, but complainant refused to allow repair  and expressed her  strong  desire for replacement or refund of product.  Hence, the case is liable to be dismissed as this is not a case of silence in terms of contract and deficiency in service or unfair trade practice.

                The O.P. No.1 relied citation   it is held and reported  in AIR Supreme Court 1586 in the case of Maruti Udyog Ltd. Vrs.  Susheel Kumar Gabgotra and oth. Sale of defective Car – Complainant purchased alleging  that there was manufacturing defect in car purchased by him and requested for its replacement- Warranty conditions clearly refers to replacement of defective part not the  car – Not a case of silence of a contract of sale to warranty”.

                Admittedly the  purchase of the above  set   by the complainant is not denied.  Admittedly the   O.Ps have given an undertaking in the A.M.C  that they are  ready to  give the free  service as per the conditions of the A.M.C given to the said  set.  The complainant submitted that  as  per the  A.M.C condition  he approached  from pillar to post but the complainant has   not got any  fruitful  result  till  date from any of    the  O.Ps.

It is well settled principle of law that  no consumer will make any such complaint if there is no such deficiency. Hence the action of the O.Ps for not giving the required service during AMC  to the complainant is a deficiency in service  on the part of the O.Ps.

On perusal of the record  this forum observed there is no warranty so that this forum can not pass order to replace the above set free of cost.

On perusal of the  complaint petition and written version filed by the parties  this forum agreed with the views taken by the  O.P No.1    in their written version and documents  filed in support of this case.   The present case  in hand as the warranty expired the  complainant   is not entitled  to  replace with a new  one A/C free  of cost. .

Thus,  it    becomes clear that even on merits, complainant is not entitled  to  replace with a new  one A/C set free  of cost. .

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

 

 

.                      

 

 

 

O R D E R

                In  resultant the complaint petition  stands  disposed off on contest against the O.Ps. 

The O.P No. 1 (Manufacturer)  is  directed to remove all  the defects  of the above  set including  replacement of defective parts if any free of cost enabling the complainant to use the same in perfect running condition  if the complainant  approached  the O.Ps  to rectify the defect of his   set  and shall provide all sort of after sale service to the complainant as per the terms and conditions of the A.M.C.   of the afore said   set with full satisfaction of the complainant.  There is no  order   towards cost of litigation and compensation.

The O.P. No.2 is directed to refer the matter to the O.P. No.1 for early relief.

                Dictated and corrected by me.

                Pronounced in the open forum on        18 ^th.     .day  of    December, 2018.

MEMBER                               MEMBER                                                       PRESIDENT