Presented by:
Minakshi Chakraborty, Presiding Member.
BRIEF FACTS OF THE CASE :
Complainant files this case under section 12 of the Consumer protection Act 1986. As per submission of the complainant, the complainant purchased one refrigerator “Hitachi Model No-R-WB480PND2” on 08/03/2015 from “EZONE” by paying amounting to Rs.60,000/- and the said model of the refrigerator covered with 10 years warranty on compressor.
That on 19/11/2018 the said refrigerator suddenly started not working properly and the petitioner lodged complaint to the O.ps. Registered phone number regarding the matter and in response the OP assured the petitioner to send their authorized technician to inspect the Refrigerator and the charge of the technician Rs.500/- to be paid by the petitioner and the petitioner agreed to pay the charges. On 19/11/2018 the OP no.1 send their authorized technician to the petitioner’s house to inspect the said refrigerator and the petitioner paid Rs.500/- to the technician and the technician advised to replace the compressor as some defect arose in the compressor. As per submission of the complainant, on 20/11/18 OP 1 collected the refrigerator for replacing the compressor with an assurance to hand over the same within 10 days.
That soon after expiry of the period of 10 days the petitioner visited to the O.p. no.1 for getting back his refrigerator but the O.p. no.1 told the petitioner that it took more time for replacing the compressor because the model of the compressor at present is not available in market and the O.p. no.1 advised the petitioner to visit again after 15 days then they will hand over the refrigerator to the petitioner after replacing the compressor. Thereafter after 15 days, petitioner visited the O.p. no.1 but they failed to handover the said refrigerator. The petitioner several times requested the O.p. no.1 to handover the said refrigerator but they did not pay any heed in this regard. Lastly, on 22/02/2019 the petitioner sent one advocate letter to the O.p. no.1 but till date they did not reply the same nor handover the refrigerator.
Having no other alternative complainant files this instant case praying for replace the refrigerator or refund the purchased amount of Rs.60,000/- with interest till its actual realization alongwith compensation to the tune of Rs.25,000/- for physical and mental harassment and Rs.10,000/- for litigation cost.
DEFENCE CASE
The O.p. no.2 appeared their appearance by filing written version denying inter alia all the material allegations leveled against them. As per submission of the O.p. no.2, the complainant had purchased one refrigerator of Rs.60,000/- on 08/03/2018 in good and sealed packed condition after having full satisfaction with the said product.
That after using the product joyfully for about three years some defects was found that the PCB, COMPRESSOR & EVAPORATOR of the product and the same were needed a work shop repair. As per submission of OP2, the complainant consented to the proposal and technician of OP1 visited at the complainant’s premises and assured him that the said product is having various defects due to its mishandling and rough use and the service charge of Rs.500/ was paid by the complainant as the product was out of warranty. According to the submissions of theOP2, the compressor was duly replaced on FOC as per the warranty terms and the other three parts were also replaced for which repair charges were duly asked but he refused to pay.
As per submissions of OP2, after the said repair they approached several times to take delivery of the said refrigerator but the complainant refused the same and became adamant for refund which was completely against the warranty terms.
According to OP2 and 3, the complainant has failed to prove any manufacturing defect in the product in question nor any deficiency in service and pray for dismissal of the instant complaint case.
Complainant has failed to prove any manufacturing defect in the product in question nor any deficiency in service on behalf of O.p. nos.2 & 3. On that behalf O.p. no.1 submitted one Judgment by the Hon’ble National Commission in 3(2010) CPJ 130 (NC) – Sushila Automobiles Ltd v. Dr. Birendra Narain & Ors. and Hon’ble Supreme Court in Stereocraft Vs Monotype India Ltd, New Delhi (2000, NCJ(SC) 59) “has clearly held that when terms of warranty does not cover refund or replacement then consumer cannot claim either replacement or refund during or after the lapse of warranty period” and another judgment “Shibprasad Paper Industries v. Senior Machinery Company (I (2006) CPJ 92 NC)” wherein it is stated that “It is by now settled law that an equipment or machinery cannot be ordered to be replaced if can be repaired”.
That the registered address of JOHNSON CONTROLS – HITACHI AIR CONDITIONING INDIA LTD is at 9th Floor, Abhijeet, Mithakali Home & Solutions (India) Ltd which does not fall within territorial jurisdiction of this Hon’ble District Commission So, this case has no jurisdiction of this District Commission.
According to the OP the complainant is not a consumer and they are not guilty of any deficiency of service or they have not adopted any unfair trade practice and there is no cause of action for filing the instant petition for which the complaint case is not maintainable.
Evidence on record
The complainant filed evidence on affidavit and written notes of argument which are nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite party no.2 and has filed reply
The Opposite party no.2 filed written version, evidence on affidavit and questionnaire but they did not file any reply.
Argument highlighted by the ld. Lawyers of the parties
Both sides have filed separate written notes of argument. As per BNA, evidence on affidavit and written notes of argument and written version of the opposite party no.2 shall have to be taken into consideration for disposal of the case.
Heard argument of the complainant and O.p. no.2 at length. In course of argument, Ld. Lawyers for the complainant and O.p. no.2 have given emphasis on evidence and documents produced by the complainant and O.p. no.2.
From the discussion hereinabove, we find the following issues/points for consideration.
Issues/points for consideration
- Whether the complainant is the consumer?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain the case?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief?
DECISION WITH REASONS
Issue no.1:
In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (d)(ii) of the Consumer Protection Act, 1986.The point is thus answered in the affirmative.
Issue no.2:
As one of the opposite parties has its office address within the district of Howrah and the claims do not exceed the pecuniary limit of this commission, so as per section 11of the Consumer Protection Act 1986,this commission has territorial as well as pecuniary jurisdiction to entertain the instant complaint case. This point is thus disposed of accordingly.
Issue nos. 3 & 4:
Both the issues are taken up simultaneously for the sake of convenience.
It is a fact that the complainant purchased one refrigerator of Hitachi from e zone on 08/03/2015 and paid Rs.60000/ for the same. The complainant has submitted the photocopy of the cash memo alongwith warranty card. After three years the refrigerator started not working properly and he lodged complain with time n service (copy annexed), the technician of the said service center attended and received Rs. 500/ for visiting. One collection memo issued by TIME N SERVICE is also annexed with the complaint petition where from it has come to the knowledge of this commission that the service centre collected the refrigerator for “COMP REPLACEMENT”.
The OPs have cited various judgments of National Commission as well as judgments of Hon’ble Apex court , where it has been settled that replacement of product and/or refund of price cannot be granted unless the complainant has proved by cogent, credible and adequate evidence …………………………………from inherent manufacturing defect”
The OPs have not submitted any paper or documents to show that the refrigerator was taken not only for replacement of compressor but also for repaid of PCB and EVAPORATOR in addition to replacement of compressor. It is an admitted fact that TIME N SERVICE is the authorized service centre of HITACHI and they have issued cash/pay order/DD receipt dated 19/11/18 of Rs.500/ for visiting and from the collection memo submitted by the complainant dated nil issued by the TIME N SERVICE it is amply clear that the OP collected the refrigerator for compressor replacement.
When the refrigerator was taken by the OP for workshop work it was the duty of the OP to inform the complainant that expert opinion is required to detect the difficulties with the refrigerator. More so, the OPs stated that they repeatedly requested the complainant to collect the refrigerator after finishing the work but no single scrap of paper has been submitted by the OPs to show their eagerness to handover the refrigerator in question. Only by citing some rulings of Apex Court and national commission the OPs cannot escape their liabilities.
Much time has gone till the OP collected the refrigerator, which is still lying with the OP. it would be harsh on the part of the complainant if he receives the same refrigerator after lapse of almost 5 years.
From the discussion made herein above and after scrutinizing the documents submitted by both the complainant and OP 2 & 3 this commission thinks that the complainant succeeds in proving that there is gross negligence and deficiency on the part of the OPs and he is entitled to get the reliefs.
Both the issues are thus disposed of.
Hence,
O R D E R E D
That the Complaint case no 117 of 2019 be and the same is decreed on contest against the OP2 and ex parte against OP 1 & 3.
O.p. nos.2 & 3 will provide brand new refrigerator of “Hitachi Model No.R-WB480PND2” to the complainant within 45 days from date. In case this model is not available in the market then the O.p. nos.2 & 3 are directed to refund Rs.60,000/- to the complainant within 45 days from date.
The O.p. nos.1 to 3 are directed to pay Rs.15,000/- as compensation for mental harassment and agony and Rs.6,000/- as litigation cost to the complainant within 45 days from date.
In case OPs fail to comply the order passed by this commission complainant is at liberty to take recourse to law after completion of the due date of 45 days from date.
Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.
The Final Order will be available in the following website confonet.nic.in
The word file is drafted and corrected by me.
(Minakshi Chakraborty)
Member
D.C.D.R.C., Howrah
