Before the District Consumer Dispute Redressal Commission [Central District] - VIII, 5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi
Complaint Case No.26 /09.02.2023
Prakash Chand Yadav
H. No. 37/22, Old Rajender Nagar,
New Delhi-110060 …Complainant
Versus
Whirlpool
Plot No. 40, Whirlpool House,
Sector-44, Gurugram, Haryana-122002 ...Opposite Party
Date of filing: 09.02.2023
Coram: Date of Order: 16.08.2024
Shri Inder Jeet Singh, President
Ms Rashmi Bansal, Member -Female
FINAL ORDER
Inder Jeet Singh , President
It is scheduled today for order (item no.15)
1.1. (Introduction to dispute ) – The complainant has allegations of unfair trade practice and deficiency of services against the OP that he had purchased whirlpool refrigerator having model no. DDW012 whirlpool REF IF4555 Ultra Steel (35) HSN 8418 (hereinafter referred as 'refrigerator') for Rs.40,000/- against invoice dated 24.12.2018 from Vijay Sales and it was sold with warranty of 10 years. The refrigerator started giving problem and it was non-functional, for which repeated complaints were lodged for its repair, the OP's service engineering also suggested that refrigerator is unserviceable. It was neither repaired nor repairable nor replaced despite repeated requests and complaints. That is why the complaint. However, the OP failed to file its written statement within the statutory period, therefore, there is no defence versionm but OP proposed its defence in final arguments.
2.1. (Case of complainant) –The complainant is a consumer. He purchased the refrigerator from OP. The OP is manufacturer. The refrigerator was purchased through dealer Vijay Sales. The said dealer while selling the refrigerator had given warranty of 10 years that complainant need not to pay anything in future for any complaint, if arises. But the fridge became otiose 2021, complaint was lodged with the customer care but it was told that warranty is of 10 years which is limited to compressor, the complainant has to pay charges for other defects. Therefore, complainant was constraint to pay Rs. 4,000/- approximately and got the refrigerator repaired. In July 2022 the refrigerator again started giving problem, its compressor became inoperative.
2.2. The complainant again approached the OP, however, its official again asked to pay for the problem arisen and it was also told that the issue is not covered in the warranty, whereas, the warranty period was there. The refrigerator was defective and in order to get repaired the complainant called the OP several times (especially on 05.11.2022, 07.11.2022, 10.11.2022, 02.12.2022, 07.12.2022, 10.12.2022, 15.12.2022, 23.12.2022, 28.12.2022, 02.01.2023, 08.01.2023 & 11.01.2023) but the problem was not resolved. However, when complainant warned them that in case the issue is not resolved, then complainant will be constraint to initiate legal action, thence OP asked for replacement of refrigerator but subject to payment of Rs. 25,000/- on account of depreciation happened in the fridge. It was told to them that depreciation is applicable when the goods were not defective or otherwise the depreciation can be under the provision of income tax appropriately and not in respect of item sold to the consumer/complainant. It is within the accounting/business losses of the OP with regard to return of such defective articles but complainant cannot be asked for payment of Rs. 25,000/-. However, the defective refrigerator was not replaced and the complainant was put to harassment and mental agony because of such deficiency of services and unfair trade practice, for which the OP liable not only to full refund amount of Rs. 40,000/- paid alongwith interest at the rate of 18%pa in respect of refrigerator but also compensation of Rs. 1 lakh and litigation cost of Rs. 40,000/-. The complainant has exhausted all remedies under the law and finally sent legal notice dated 19.01.2023 but notice was also replied by it. That is why the complaint.
2.3 The complaint is accompanied with copies of – tax invoice, emails exchanged from time to time and legal notice dated 19.01.2023 with track report of service.
2.4 (Case of OP) - The OP put its appearance, it was served on 16.02.2023 but the written statement was brought much after the statutory period, it was beyond the statutory period. A detail reasoned order dated 26.04.2023 was passed while disposing of the contentions of the parties and holding that OP was supplied with complete record weighing about 185 gm of article sent by post containing 31 pages but the OP had pleaded that just 9 pages received. Then by that order, belated written statement was taken off the record. To say, there is no defence version of the OP.
2.5 The complainant was asked to lead evidence.
3.1 (Evidence)- In order to establish the complaint, the complainant Shri Prakash Chand Yadav filed his evidence by way affidavit supplemented with the documentary record filed with the complaint.
3.2 There is no evidence for want of filing of written statement in time.
4. (Final hearing)- The complainant and the OP have filed their respective written arguments. The written arguments of the parties are blend of pleading and evidence.
5.1 (Findings)- The complainant and the OP have filed their respective written arguments. The written arguments of the complainant are blend of pleading and evidence. The complainant has also placed on record email dated 23.01.2023 (with written arguments) , which is of after filing of the complaint. The complainant also relies upon decided cases by the Consumer Fora viz. (i) Vijay Kumar Vs. Samsung CC. No. 411/2018 dod 12.02.2020; (ii) Francis AL Vs. Kelvinator CC. No. 8/674 dod 30.09.2010; (iii) Bala Krishna Vs. Whirlpool CC. No. 107/2014 dod 10.04.2015; (iv) M/s Samsung India Electronics Pvt Ltd Vs. Shaik Atheepa Ahmed and anr. FA. No. 141/2019 dod 24.05.2024; that there were cases of defective machine or refrigerator/compressors and the amount was refunded in lieu of defective goods.
The OP also filed the written arguments with defence portion, however, since OP failed to file written statement of defence and also for want of defence evidence, the written arguments of OP will be considered to the limited extend, whether or not complaint could prove its allegation in the complaint against OP. Further, bail out refund schedule was also mentioned.
5.2. The parties were also given opportunity to make oral submission, therefore, Shri Shivam Garg, Advocate for complainant and Shri Abhinav Sharma, Advocate for OP made oral submissions.
6.1 (Findings)- The contentions of both the sides are considered, analyzed and assessed by taking into stock of material on record, inclusive of documentary record, statutory provisions of law and case law.
6.2 After taking into account such material on record inclusive of documentary record as well as the rival contentions, the following conclusions are drawn:-
(i) There is no dispute, and also complainant has proved, that he had purchased the refrigerator against invoice of Rs. 40,000/-.
(ii) The complainant has also proved the email exchanged with the customer care of OP regarding the problem shoot up in respect of the refrigerator and the OP had also sought cooperation of the complainant to wait as the problem is to be resolved. The complainant had also paid the amount at initial stage since the OP took the stand that the repair was beyond comprehensive warranty period.
(iii) The refrigerator was again not functioning in July 2022, it was diagnosed of defect or problem in the compressor. That is why the complainant again approached the OP, since there was 10 year warranty on the compressor, as told to be from the date of purchase of the refrigerator in December 2018. After filing of the complaint and when the case were pending for final arguments, the complainant had received an email dated 23.01.2023 from Care Manager of OP that as per confirmation received from their service team, the appliances is not repairable due to that issue. The complainant was offered replacement of the appliances as per company norms by giving possible discount but depreciation.
The fact and feature on record not only proves the complaint but also corroborates the allegations of complaint by email dated 23.01.2023 that the appliances was not repairable. However, at the time of selling of product, OP had given warranty of 10 years but other terms and conditions for replacement against payment and depreciation were not disclosed. In other words, when product was sold, it was un-conditional warranty but when situation arisen to honour it, the OP is putting conditional warranty. It is serious unfair trade practice to perils the rights of consumer.
(iv) The OP at the time of final arguments also pointed out that there is policy of replacement, refund and bail out on payment of transportation charges as well as scales as per the age of product sold against invoices. Whereas, this is a defence component but it has not proved by the OP for want of defence version and evidence, therefore, this bail out policy, if any existing, was not disclosed to the complainant at the time of selling of product or while handing over warranty card of 10 years. The right to know about goods and other conditions, is one of the pillar of protection of consumer rights and if the OP was having such scheme of bail out, if any, it ought to have been informed to the buyers/
consumers as a conditional warranty. If the OP has not informed so, then it does so at its own perils, risks and against the principle of "vendor emptor".
(v) The OP is coming with defence of bail out policy all of a sudden that too at the phase of final argument, whereas, the complainant had sent legal notice dated 019.01.2023, which has also been proved by the complainant. The OP had good opportunity to respond the legal notice and to apprise the complainant about bail out policy, whereas the OP kept silent vis-à-vis in the email exchanged earlier, it was asking the complainant to be cooperative by waiting for solution of the issue. When the legal notice issued carries serious allegations but it is not responded, its consequences were discussed in Kalu Ram vs Sita Ram (1980 RLR Note 44), wherein it was held that when plaintiff before filing the suit, makes serious assertions in notice to the defendant, then defendant must not remain silent by ignoring to reply. If he does so, then adverse inference may be raised against him.
It applies to situation in hand, that OP failed to reply the legal notice. There is also on defence of OP for want of filing the written statement in time and consequently no evidence in defence. To say, the plea of OP is not acceptable and appropriate inference is to be withdrawn against the OP.
6.3 The aforementioned conclusions drawn, establish the case of complainant that he had purchased the refrigerator against invoice but it was defective piece and it was not functioning, the OP could not repair it since its compressor was in-serviceable. It happened within warranty period. Therefore, the complainant is held entitled for refund of invoice amount of Rs. 40,000/- from OP in lieu of defective refrigerator.
6.4 The complainant also claimed interest @ 18% pa and other appropriate relief. Since he had paid the amount against invoice but the refrigerator was not functional for the defect which was not serviceable. Simultaneously, there is no agreed rate of interest between the parties for such eventuality. Thus, it would be appropriate to allow reasonable interest, therefore, interest @ 5% per annum is allowed [on amount of Rs.40,000/-] from the date of complaint till realisation of amount in favour of complaint and against OP.
6.5 The complainant also seeks compensation of Rs. 1 lakh in lieu of harassment and inconvenience faced while approaching the OP to repair/replace the refrigerator as well as for deprive of use of refrigerator because of defective and non-functional piece. In view of the situation involved, it appears that compensation of Rs. 15,000/- in favour of complainant and against OP will meet at both ends, therefore, compensation of Rs. 15,000/- is allowed in favour of complainant.
6.6 The complainant also claims litigation expenses/cost of Rs.40,000/-. Since, complainant was constraint to file the complaint for want of settlement of grievances, which were known to the OP that the same are not serviceable but false assurances were extended that matter is being looked and cooperation of wait was sought from complainant too. The complainant was not required to file the complaint, had the grievances were resolved. Hence, lump sum costs of Rs.10,000/- is allowed in favour of complaint and against OP to the situation of this case.
7.1 Accordingly, the complaint is allowed in favour of complainant and against the OP to pay amount of Rs.40,000/- along-with simple interest @ 5%pa from the date of complaint till realization of amount; apart from compensation of Rs.15,000/- and costs of Rs.10,000/- to complainant. The OP will pay the amount within 45 days from date of this order, failing which the OP will be liable to pay enhanced interest at the rate of 7% per annum on amount of Rs.40,000/-. The OP may deposit the amount in the Registry of this Commission by way of valid instrument in the name of the complainant.
7.2. Since the substantive relief of refund of amount has been allowed in fvouor of complainant, therefore, the complainant will return the said refrigerator to the OP and OP (itself or thorugh its representative/dealer) may also collect the refrigerator under acknowledgement from the complainant within 45 days, failing to collect so, it would construe that OP is not interested to take back the refrigerator vis a vis it would also not affect the rights of complainant allowed in his favour and against OP.
8. Announced on this 16th August 2024 [श्र!वण 25, साका 1946]. Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for compliances, besides to upload on the website of this Commission.
[Rashmi Bansal]
Member (Female)
[Inder Jeet Singh]
President
[ijs-108]
