Delhi

East Delhi

CC/460/2017

SUDAKSHNA MATHUR - Complainant(s)

Versus

VIJAY SALES - Opp.Party(s)

03 Sep 2019

ORDER

                 DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, EAST, Govt of NCT Delhi

                  CONVENIENT SHOPPING CENTRE, 1^st FLOOR, SAINI ENCLAVE, DELHI 110092

                                 

                                                                                                  Consumer complaint no           460 /2017

                                                                                                  Date of Institution                  14/11/2017

                                                                                                  Order Reserved on                 03/09/2019

                                                                                                  Date of Order                          05/09/2019  

                                                                                                       

In matter of

Mrs. Sudakshna Mathur 

S/o- Sh. Rakesh Mathur   

R/o- 9/322 Kucha Mir  Ashiq, Chawri Bazar, Delhi…………….…Complainant

                                                                  

                                                                     Vs

1-M/s Vijay Sales      

A-18, Vikas Marg, Swasthya Vihar,

Oppo. Metro Pillar 83, Vikas Marg, Delhi 92

 

2-M/s Samsung India

2,3 & 4rth Floor, Tower C,

Vipul Tech Square, Old Golf Road,

Sec. 43, Gurgaon, Haryana 1220002………..…………………………Opponents

                                      

Complainant’s Advocate -                  Mr Kshitiz Mahipal   

Opponent’s Advocate -                       Mr Prashant Arora c/o Kapoor & Co. Associates  

 

Quorum          Sh Sukhdev Singh        President

                         Dr P N Tiwari                Member 

                                     

Order by Dr P N Tiwari  Member 

Brief Facts of the case -

  

Complainant purchased Samsang refrigerator on 14/05/2017 from OP1/M/s Vijay Sales, seller, having model no. RT-30K3753S9/NL for a sum of Rs 26500/-having one year standard warranty of the fridge vide invoice no. V336-DDGD05-17RS1493 (Ex CW1/1). It was stated that a crack was found inner side of body of fridge, so complaint on toll free number of OP2. Service engineer inspected and noted a crack inside the body of the fridge and stated that it could be repaired, but complainant had to pay the service charges as it was out off warranty, but complainant demanded replacement of defective fridge which was refused by the service engineer, so sent a email to OP2 (Ex CW1/2), but did not receive any reply from OP2.  

As defective product was sold by OP1, so claimed compensation Rs 50,000/-for harassment and mental agony along with replacement of new fridge and Rs 10,000/- as litigation charges  

 

OP1/seller filed written statement and denied all the allegations put against them by complainant. It was admitted that complainant had purchased the said fridge as per Ex CW1/1, but was not installed by their service engineer. It was installed by any person from OP. There was no job sheet on record as a defective product sold by OP1. Hence OP1 were not responsible for liability. 

OP2 submitted written statement and totally denied for allegations leveled against them. It was admitted that fridge was purchased by complainant from OP1 with proper terms and conditions in warranty card (Ex OPW2/A), but did not get installed by their service engineer. There was neither manufacturing defect nor any deficiency in service. Complainant had lodged complaint regarding a crack developed inside the body of the fridge, but as per their service engineer report, the crack was not a manufacturing defect and could had developed during its installment. As the said defect was on the inner body, so did not come under standard warranty and repairing material and service charge was demanded for Rs 1566/- as per their demand note (Ex OPW2/B), but complainant refused to pay and demanded replacement of said fridge. The said fridge had no evidence of defect and or deficiency as alleged by complainant in his complaint. In absence of job sheet and evidence of defect, OP2 could not be made liable for any compensation or replacement and the said defect could be repaired.

OP2 also cited judgments of NC in ‘Sushila Automobiles Ltd. vs Dr Birendra Narain & others’, 3(2010) CPJ 130 NC for above explanation and Stereocraft vs Monotype India Ltd., (2000) NCJ (SC) 59. It was laid down in both the cases that Equipment or machinery cannot be ordered to be replaced if can be repaired.’ Hence, there was deficiency on part of OP2  

 

Complainant submitted her evidences annexed with her complaint. Complainant also submitted her evidences on her own affidavit and affirmed on oath that all the facts and evidences were correct and true as stated in her complaint and the said fridge had manufacturing defect in reference to her evidences (Ex CW1/1 & 2), but OP did not replace the fridge nor replied her complaint to OP2 (Ex CW1/2). She did not submit rejoinder to both written statement. So her complaint be allowed.    

OP1 submitted their evidence on affidavit through their Authorised Representative Mr Sonu Kumar and denied all the allegations of complainant. OP1 relied on evidence of complainant (Ex CW1/1) as the said fridge was purchased by her after properly inspecting and checking.

OP2 also submitted evidences through their authorised representative Mr. Anindya Bose with OP2 and affirmed that all their products had standard one year warranty and compressor also had warranty against manufacturing it (Ex. OPW2/A&B). OP2 also relied on service engineer’s report where service charges with material was demanded for repairing crack, but had no manufacturing defect. So, complainant had failed to prove any manufacturing defect in the said fridge. The inner body had no warranty, so required to be repaired for which complainant had to pay the material and service charges. As there was no manufacturing defect, so there was no question for replacement of fridge with new one.

Complainant and OP1 submitted their written arguments, taken on record.  

 

Arguments were heard and order was reserved after perusing material on record.   

We have gone through all the facts and evidences on record.  It was admitted by OP1 that the said fridge was purchased by the complainant, but denied to have any manufacturing defect. Also it has been seen that there was no evidence of manufacturing defect.

 

Before coming to the conclusion, we have referred some judgments to see the merits of this case as under-

1-Tata Motors vs Deepak Goyal, RP 2309/2008NC,

2-Vikram Bajaj vs Hind Motors India Ltd & others, 2009IICLT 670 NC,

3-Kamal Kishore vs Electronics Corporation of India, RP 3029/2010 NC,

4- Shiv Prasad Paper Industries vs Senior Machinery Co. I (2006) CPJ 92 NC.  

In all above citations it was seen that ‘en equipment or machinery cannot be ordered to be replaced if can be repaired.’ Hence, there was no deficiency on part of OP2 because replacement was only done if manufacturing defect was proved by expert report or seen”.  

 

When no defect has been proved by complainant by any concrete evidence pertaining to deficiency in services of OP or manufacturing defect, no liability can be fastened on OP1 and OP2. Thus complaint deserves to be dismissed, but in the interest of justice, we advice complainant, if she so desires to get the crack repaired under the terms and condition of OP2 within 30 days after receiving this order. As product was under warranty, OP2 shall not charge any service fee for repairing crack, but filling material if required will be chargeable. There shall be no other order to cost.

 

The first free copy of this order be sent to the parties as per Section 18 (6) of the Consumer Protection Regulation, 2005 (in short CPR) and file be consigned to the Record Room under Section 20(1) of the CPR.

 

    (Dr) P N Tiwari - Member                                                                        Sukhdev Singh - President