Mrs. Neelam Jindal w/o Sh. Vijay Jindal H.No.47-B, Rajguru Nagar, Ferozepur Road, Ludhiana.
….Complainant.
Versus

1- M/s Punjab Sanitations, opp. Deepak Cinema, Ludhiana – 141008 through its Authorized Signatory.
2- ION (Exchange) India Ltd., Consumer Products Divn. TIECICON House, Dr. E. Moses Road, Mahalaxmi, Mumbai- 400011 through its Authorized Signatory.

….Opposite parties.

COMPLAINT UNDER SECTION 12 OF THE CONSUMER PROTECTION ACT, 1986.

Quorum:
Sh. T.N. Vaidya, President.
Sh. Rajesh Kumar, Member.

Present: Sh. L.D. Gupta Adv. for complainant.
Sh. Sharwan Sehgal Adv. opposite parties.
O R D E R

T.N. VAIDYA, PRESIDENT:

1- Complainant purchased Zero B Water Softener NGS 6 B for Rs.64200/- from opposite party no.1 on 19.5.2006 and got it installed at her residence. Now grievance of the complainant is that system since inception, is not working and giving trouble to the complainant. Dozens of complaints were made to opposite party, because the system was defective, requesting them to rectify the defects. But opposite party failed to have rectified the same and provide satisfactory after sale service. Since 24.5.2006, the day of installation, daily complaints were made to opposite party on 9.6.2006, 13.6.2006, 19.6.2006, 17.7.2006, 10.8.2006, 18.8.2006, 19.8.2006 and 25.8.2006. But opposite party failed to rectify the defect. Then made written complaint dated 12.7.2006 qua defective working of the system requesting opposite party either to remove the defects perpetually or take back the system and refund price Rs.69200/, but they failed to do so and also failed to refund the amount. Then wrote letter dated 25.7.2006, repeating request to refund demanded amount within 15 days. Thereafter opposite party on 19.8.2006 assured complainant that either the water softener system will be rectified and made functional or the entire amount of Rs.69200/- will be refunded. But failed to fulfill the promise. Hence, another reminder dated 31.8.2006 was given to the opposite party. On failure to act, served legal notice dated 27.9.2006. In the meantime, received letter dated 26.9.2006 from opposite party, intimating that complainant should install micron filter, costing Rs.5500/- and agreed that in case, filter did not work, opposite party will take back micron filter and reimburse cost to the complainant. Offer was not acceptable to the complainant. Then, opposite party sent revised offer vide letter dated 5.10.2006, agreeing to reimburse cost of micron filter and water softener system in case, they did not work properly after installation. The offer was accepted vide letter dated 12.10.2006, intimating that if micron filter and water softener system did not work, then opposite party will reimburse the amount of micron filter alongwith cost and installation charges of water softener system with interest and damages. Opposite party agreed and complainant got installed micron filter at cost of Rs.7400/-. But despite it, water softener system did not work even for a day and all these facts were brought to the notice of opposite party. Hence, final notice dated 28.12.2006 was sent to opposite party, requiring them to remove the entire system, as promised and refund price, to which paid no heed. Such act on part of opposite party is claimed amounting to unfair trade practice, by filing this complaint u/s 12 of the Consumer Protection Act, 1986, and claimed that system installed was defective. Hence, entitled to refund of the entire amount of Rs.76600/- with 24% interest, compensation of Rs.35000/- for deficiency in service, Rs.15000/- as litigation costs and Rs.15000/- for repeatedly taking up matter with opposite to remove the defects.



2- Opposite party no.1 in reply claimed that complaint is filed with ulterior and malafide intention, so not maintainable. Complainant is alleged to have filed forged documents, by inserting word “warranty”, on the bill which was never originally written. He has committed cheating, by forging entries in the documents, so complaint deserves dismissal. However, admitted that complainant had purchased Zero B water softener system and got installed at her residence. No complaint of any sort, was received by them from the complainant, nor he sent any e-mail to them. They have as such controverted and denied all material allegations of the complainant and disputed his right to have claimed from them.


3- Opposite party no.2 vide separate reply, have also admitted purchase of system and installing the same in her house by the complainant. But also pleaded that complainant committed forgery qua invoice, as it was not having any warranty. The word “warranty”, was written by way of fraud by the complainant. She had made complaint without any rhyme and reasons. They have denied any defect in the system and that it is working properly. There was no reason for complainant to send any notice. After intervention of the court, all necessary parts of the system, have been replaced and the machine is now working properly. There is no deficiency in service on their part. Complaint is filed with ulterior and malafide intention and the complainant has misguided this Fora.



4- Parties adduced evidence in support of their claims and stood heard through their respective counsels.



5- Purchase of machine under invoice Ex.C1 dated 19.5.2006 for Rs.64200/-, is not disputed or denied. But grievance of opposite party is that on this invoice, complainant committed forgery, by inserting the word “warranty”. However, we can not take such plea of opposite party at its face value. Because in their daily service report dated 24.5.2006 Ex.C2, service engineer of opposite party ticked status of the repair ‘inside warranty’. So, it means warranty was given by opposite party qua its product. Consequently on 24.5.2006, when repair was done, mentioned that it was done under warranty period. Ex.C3 is service card qua service of the machinery from 24.5.2006 to 25.8.2006. This service card clearly reflects that the machine carried out warranty of one year from 24.5.2006 to 23.5.2007. This is mentioned under warranty/contract’s details in the service card Ex.C3. This service card is from the books of opposite party, showing that defects in machine, were reported between 24.5.2006 to 25.8.2006 and complaints were filed. All the work was done during such visit, same was mentioned in the job card.




6- In these circumstances, we have no hesitation to conclude that the machine so sold by opposite party to the complainant, carried warranty of one year and there is no force in contention of the opposite party that in invoice clause, word “warranty” was inserted by the complainant of his own by committing forgery.




7- After glancing service card Ex.C3 that the machine was got serviced 9 times between 24.5.2006 on which date, machine was installed, till 25.8.2006, complainant issued e-mail Ex.C4 dated 12th July, 2006 to the opposite party. It was conveyed that within 2 months of purchase, they were forced to file 4-5 complaints and that they were not satisfied with the product, as the machine was not working properly. So, were called upon to remove defects perpetually or refund the cost alongwith installation charges. This request was repeated through another e-mail dated 25th July, 2006 and e-mail Ex.C6 dated 31st August, 2006. Then sent legal notice Ex.C7 dated 27.9.2006.



8- In the meantime, opposite party had sent letter dated 26.9.2008 to husband of the complainant, suggesting to install micron filter costing Rs.5500/- and agreed in case of it not working properly, the company will take it back after reimbursing the cost. Same offer was repeated vide letter dated 5.10.2006 Ex.C9. Complainant accepted the offer of Ex.C9 through communication Ex.C10 dated 12.10.2006. Thereafter, e-mail Ex.C11 dated 28.12.2006 was sent to opposite party, conveying that taps are still choking frequently, causing tension of calling plumber almost daily for removing the defect, so requested to refund Rs.76600/- as water softener system was not working smoothly.



9- Opposite party then sent e-mail Ex.C12 dated 30th March, 2007 to husband of complainant, referring some discussion held on 28.3.2007 between them. This e-mail contains admission of opposite party qua system not working smoothly. The relevant portion of the admission is as under:-


“With respect to minutes of our meeting and discussion held at your office on 28.3.2007 taking you in confidence regarding your complaint on NGS 6B Softener installed at your site where in I would like to thank you for giving the company, an opportunity to resolve your complaint once and for all and to satisfy you.

It was great to hear and know personally from you that you are greatly satisfied towards our service rendered to you and that you have expressed great faith in our service given by our engineer Mr. Naveen Kumar whenever you have called or made a complaint. Mr. Naveen has attended the same and solved the complaint. But the expectation on the product front hasn’t been satisfactory in its performance, as it should be.

As committed by me, I hereby would like to inform you that all necessary care will be taken from my end to ensure a total and complete solution is given”.


Though it is mentioned that Mr. Naveen on behalf of opposite party solved complaint of the complainant. But the product had not been giving satisfactory performance, as it should be. Then, it was suggested that once required solution is provided by opposite party company, complainant will monitor the performance for three months and to see whether the same complaint still persists as earlier. Further mentioned in the letter that if no complaint is received within 3 months, or no rasin over flow is found within 3 months, then he will withdraw his case. In case of recurring rasin over after three months, complainant was assured to take back the unit and refund cost of the unit. So, it means some component was suggested to be changed and to be monitored for 3 months and after that provided no satisfactory result, then opposite party had agreed to refund cost of the unit to the complainant.


10- Though opposite party has also filed affidavit Ex.R2/1 of Sh. I.P. Reji, its authorized signatory alongwith certain documents Ex.RW2/2 to Ex.RW2/6, but this would be of no consequence or help, in view of the material referred above by us.


11- It appears from sequence of events coming from service card Ex.C3 that from the date of inception of the machine, complainant upto 25.8.2006, approached opposite party 9 times, pointing certain defects and not working of the machine properly and thereafter, when defect was not removed, passed e-mail messages to the opposite party, issued letters and sequel thereto, opposite party offered to remove the defect, by installing micron filter on cost of Rs.5500/-. Then opposite party finally vide e-mail Ex.C12 dated 30th March, 2007, after filing of complaint by the complainant, agreed to provide some component to be tested for three months and on failure of the component, to run machine smoothly and properly, agreed to take back the unit and refund the cost. Thus, by their act and implication of opposite party, apparent that there was some inherent manufacturing defect in the unit itself, so agreed to refund the price. The unit was found faulty from the day of inception. So, we feel that there was no necessity in such circumstances for the complainant to have got the machine inspected and checked from any expert, to prove manufacturing defect in the machine.


12- It is as such matter for consideration whether complainant would be entitled for removal of the defect in the machine or its replacement or payment of the price.


13- According to ld. counsel for opposite party, complainant is not entitled for refund of price or replacement of the machinery, because the defects can be removed. Hence, only order which can be passed, is to remove the defects. In support, he relied on a case reported in Jose Philip Mamphillil Vs Premier Automobiles Ltd. & Anr. 2004(2) Supreme Court Cass-278(SC); Maruti Udyog Limited Vs Susheel Kumar Gabgotra & Anr. 2006(4)SCC-644(SC) and Krishan Walia Vs Dennis Chem. Lab. Ltd. & Ors. 2001(1)CLT-179(PunjabState Commission). With due respect, we venture to record that in those cases, defects were such which were removable and hence, defects were ordered to be removed. Whereas, in the instant case, there is no doubt that from outset or from inception, the machine so sold by opposite party to the complainant under warranty of one year, had inherent manufacturing defect. Within period of three months, complainant had to lodge 9 complaints with opposite party, to remove the defects, despite which, they failed to remove the same. Opposite party got itself satisfied qua defect in the machine and not working properly. Then suggested replacement of micron filter at cost of the complainant, which was not accepted. Then they suggested change of component and in case of not working of the machine, despite providing component, to refund cost of the machine. So, it means that defects were so inherent and that were not possible to be removed. It was for such reason that opposite party had agreed to refund the price. In these circumstances, if we order opposite party to remove the defects, it would amount to sprinkling salt on wounds of the complainant. Because such defects due to inherent manufacturing defect in the machinery, are not possible to be removed. When it is not possible to do so, so no purpose would be served, by ordering removal of defects. Consequently, the course open to our mind, in such circumstances, would be to order opposite party, to replace machinery of the complainant in entirety with fresh machinery, working properly.



14- In view of above discussion, we allow the complaint and as a result, direct opposite party to install new one Zero B Water Softener NGS 6B, free of cost in the premises of the complainant and also provide warranty of one year on that new machine within 60 days from the date of receipt of copy of order, failing which, shall be liable to refund cost of the machine, amounting to Rs.76600/-to the complainant, inclusive of installation charges and cost of micron filter. Opposite party also directed to pay compensation and litigation costs compositely assessed at Rs.5000/- to the complainant.