DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM

       Dated this the 10^th day of July, 2024

                                                                   Filed on: 12/10/2020

PRESENT

Shri.D.B.Binu                                                                          President

Shri.V.Ramachandran                                                              Member Smt.Sreevidhia.T.N                                                             Member

C.C. NO. 300/2020

COMPLAINANT

Shaji Varghese, S/o. late P.C. Varghese, Senior Chartered Accountant, 402, Panchavadi Apartments, Ambelipadam Road, Vyttila, Kochi 682019.

(Rep. by Adv. G. Subramanian, Flat No. 3, Sudharma, Layam Road, Kochi 682011)

Vs.

OPPOSITE PARTY

1. Managing Partner/Partner/Manager in charge, M/s. Bismi Appliances, Near International Stadium, Kaloor, Kochi 682017.
2. LG Electronics India Pvt. Ltd., 34/565B, 1^st Floor, Future Arcade, NH Bypass, Palarivarrom, Kochi 682024.
3. LG Electronics India Pvt. Ltd., A Wing, 3^rd Floor, D-3, District Centre, Saket, New Delhi 110017.

(OP No. 2&3 Rep. Adv. R. Padmaraj, Deepak Mohan, R. Ajithkumar, Rishab S & George J. Moolamkunnam, KNB Nair Associates, 2^nd Floor, Morning Star Building, Kacheripady, Cochin 682018)

F I N A L    O R D E R

Sreevidhia T.N., Member:

1. A brief statement of facts of this complaint is as stated below:

The complainant had purchased a double door refrigerator having a capacity of 680 liters manufactured and serviced by LG from the 1^st opposite party on 09/09/2016 under Invoice No. 719713 for Rs.71,700/-. On the next day after the purchase the refrigerator was delivered at complainant’s residential address. The above product became defective in the month of August, 2020. After using the above product for a little more than 3 years, the fridge started showing some technical issues. The fridge stopped working form 13/08/2020. Subsequently on 14/08/2020 the complainant registered a complaint with the 2^nd opposite party through the 1^st opposite party. On 15/06/2020 initial inspection and visit was carried out by the LG technician. It was informed by him to the complainant that the compressor is at fault and it has to be replaced. On 21/08/2020 (after 7 days) the compressor was replaced by the LG technician in spite of which the fridge was not functioning properly ie. the freezer was not working. Again on 24/08/2020 a fresh complaint was registered with 2^nd opposite party through the 1^st opposite party and the same was attended by LG technician after 4 days, but he could not rectify the defect. Hence again on 30/08/2020 another complaint was registered with LG 2^nd opposite party, through the 1^st opposite party. On 03/09/2020 (after 4 days) the complaint was attended by the technician and from 03/09/2020 the fridge was partially functioning. On further follow up with LG the capacitor was also replaced by LG technician in between. But on 19/09/2020 the fridge stopped working abruptly. On 21/09/2020 the complainant again registered a complaint with 2^nd opposite party through 1^st opposite party and on 24/09/2020 the complaint was attended by LG technicians and thereon also the freezer was not working. Thus the services availed from the 2^nd opposite party through the 1^st opposite party suffer from deficiency to the highest order as they could not find out the defect and rectify the refrigerator till date. The seller and service provider are liable for the same.  The 3^rd opposite party is liable for the manufacturing defect of the product. The complaint for the compressor which resulted for replacement of many parts itself shows the manufacturing defect of the refrigerator. The complainant requested the LG technicians, LG coordinator and LG Service Kerala head many times that as per the warranty coverage, the refrigerator has to be replaced with immediate effect as the fridge was not functioning from 13/08/2020. Complainant further stated that none of the technicians of LG who attend on the fridge were confident about the proper functioning after their respective visits and repairs, as they could not identify the defect of the same. They were trying their luck by changing different parts and they could not find out the real cause of problem which seems to be the manufacturing defect of the fridge and the same is not repairable. In spite of repeated requests from the complainant to send senior technicians, no such senior technicians at any time were sent for verification of the repaired product. Repeated requests were made by the complainant himself to LF service coordinator and Manager of the 1^st opposite party but was of no use. There was only total unprofessional approach from the side of 1^st and 2^nd opposite parties. Hence the complainant alleges that the same is a manufacturing defect and that is the reason why all the responsible officers were avoiding to address and give clarification to the complainant in each stage and the same requires a full replacement of the refrigerator as a whole.

On account of the above situation, the complainant had to undergo severe mental tension and loss due to the non-functioning of the refrigerator. Due to the pandemic covid 19 it was difficult to go to the market frequently and hence the complainant was storing food items especially meat, fish and vegetables. All the food items got rotten and thus huge loss occurred to the complainant. Complainant could not attend his office work properly during the period when the refrigerator went out of order on several occasions. Thus complainant has lost his business opportunity to the tune of Rs.5,00,000/- due to non-attending the business calls in time and he could not take care of his clients in time.

The complainant had registered the complaint with the 2^nd opposite party through 1^st opposite party on various dates. The complainant states that there is grave deficiency in service and act of negligence or omission on the part of the 1^st and 2^nd opposite parties. The complainant also states that Consumer Protection Act, 2019 confirms about the product liability which means the responsibility of a product manufacturer or product seller of any product or service, to compensate for any harm caused to the complainant for such defective product manufactured and sold or by the deficiency in service thereon. Hence this complaint.

2. Notice

Notice was issued to the opposite parties from this Commission on 28/10/2020. Notice to 1^st opposite party returned with an endorsement ‘refused to accept’. Hence treated as deemed service. 1^st opposite party was set as ex-parte on 01/11/2021. Notice sent to 2^nd opposite party served on 02/11/2020. Notice to 3^rd opposite party also returned with an endorsement ‘left’. Eventhough notice sent to 3^rd opposite party returned, version filed by 2^nd and 3^rd opposite party jointly on 01/11/2021

3. Version of 2^nd and 3^rd opposite parties

The opposite party admitted the fact that the complainant had purchased a refrigerator on 09/09/2016 from the opposite party. The 2^nd and 3^rd opposite parties are the manufacturers of the refrigerator. As per the warranty conditions provided in the owner’s’ manual of the refrigerator 1 year comprehensive warranty for all parts of the refrigerator and thereafter 9 year additional warranty for the compressor alone was provided.

          Admittedly four years from the date of purchase there was no service call which shows that the refrigerator worked well during the said period. The 1^st complaint was received on 14/08/2020 that the refrigerator is not working. On the next day itself the service engineers of the 2^nd and 3^rd opposite parties service centre visited the complainant’s premises and inspected the refrigerator and it was found that the condensed pipe of the refrigerator was rusted and water entered into the compressor. Since the compressor has got 10 years warranty the compressor as well as the condenser pipe was replaced free of cost on warranty.

As per Clause 11 of the warranty condition it is specifically that “while the company will make every effort to carryout repairs at the earliest, it however is made expressly clear that the company is under no objection to do so in a specified period of time.” The 7 days’ time taken for identifying the complaint and rectifying the same by replacing the compressor part is not an unusual delay and it is only normal.

The averments of the complainant that inspite of replacing the compressor the fridge was not functioning properly is not correct. The averment that the freezer was not working is also not correct. On 24/08/2020, a fresh complaint of low cooling was registered with those opposite parties and was attended by the opposite parties technicians. But could not detect any cooling problem but was a stabilizer complaint.

Again a complaint of low cooling was registered with the opposite parties on 30/08/2020 which was promptly attended by the service engineers. Again on 04/09/2020 there was a gas blocking problem which also rectified by the opposite party by replacing the drier and gas charging was also done.

The complainant’s averment that on 21/09/2020 a complaint was registered with the opposite parties is not correct. The next complaint was received only on 26/09/2020 and the refrigerator was taken to the service centre of opposite party for repairs by providing a stand by refrigerator to the complainant.

A lawyer notice was received from the complainant’s advocate demanding replacement of the refrigerator. A reply notice to the complainant’s lawyer notice dated 25/09/2020 was issued by the opposite party informing that the complaint is rectified by replacing the defective condenser pipe with a new one and gas charging was done and had required the complainant to inform his willingness to accept the refrigerator when delivered at his house and return the standby refrigerator. The complainant was also informed over telephone that the refrigerator is ready for delivery.

There is no manufacturing defect to the refrigerator provided by the opposite parties to the complainant. The complainant also admits this fact. The refrigerator work continuously without a single complaint for about 4 years and the 1^st complaint is raised only by 4^th year. There is no unusual delay in attending the service requests. As per the warranty conditions and as per law of contract the opposite parties are not liable for any remote and indirect loss or damage if sustained by the complainant. Since there is no complaint of manufacturing defect the complainant is entitled to get the refrigerator repaired free of cost which is already done by the opposite party. Complainant is entitled to accept the repaired refrigerator from the opposite party. The complainant is also duty bound to return the standby refrigerator provided by the opposite party.  

4. Evidence

Evidence in this case consists of the proof affidavit filed by the complainant and the documentary evidences filed by the complainant which were marked as Exbt. A1to A10. Complainant is cross examined by 1^st and 2^nd opposite parties counsel and his depositions are recorded as PW1.

During cross-examination of PW1 Exbt. B1 (Job sheet) marked from the side of 2^nd and 3^rd opposite party. Opposite parties have no other evidence. Evidence closed and heard the complainant and opposite parties No. 2 and 3.

Exbt. A1 is the purchase invoice of the refrigerator dated 09/09/2016 for Rs.71,700/-. Exbt. A2 is the owners’ manual of the refrigerator issued by LG. Exbt. A3 is the registered legal notice sent by the complainant’s counsel to the opposite parties No. 1, 2 and 3 dated 25/09/2020. Exbt. A4 is the addressed cover sent to 1^st opposite party which is returned to the complainant’s counsel with an endorsement ‘refused’. Exbt. A5 is the acknowledgment card of the legal notice sent by the complainant signed by 2^nd opposite party. Exbt. A6 are the postal receipts of the legal notice sent to all the 3 opposite parties. Exbt. A7 is the reply notice dated 03/11/2020 received from Adv. R. Padmaraj to the complainant’s counsel. Exbt. A8 is the CD produced by the complainant. Exbt. A9 is whatsapp communication with Zahir Hussain, LG service head. Exbt. A10 is whatsapp communication with complainant and service head of 2^nd opposite party.

Exbt. B1 is job card of the refrigerator.

5. The issues came up for consideration in this case are as follows.

1. Whether any deficiency in service or unfair trade practice is proved from the side of the opposite party towards the complainant?
2. If so, reliefs and costs?

For the sake of convenience we have considered issues No. (1) and (2) together.

The case of the complainant is that he had purchased a double door fridge manufactured and serviced by LG from the 1^st opposite party on 09/09/2016 for a total consideration of Rs.71,700/-. After using the fridge for more than 3 years the refrigerator showed some technical issues. The opposite party did not take any initiative to cure the defect and solve the problem of the refrigerator. The complainant alleges that the opposite party had no idea about the cause of the defect and were trying to just causally change the parts. The complainant’s fridge was taken away by the opposite party and a service fridge was installed only on 28/09/2020. Complainant alleges that deficiency in service and unfair trade practice occurred from the part of 2^nd opposite party and hence requested for the replacement of the fridge with the same capacity of 680 litre and with the same facilities along with compensation of Rs.5,00,000/- towards mental agony, pain and stress and Rs.5,00,000/- towards deficiency in service of the opposite parties.

As per the Exbt. A1 invoice No. 719713 the complainant had purchased the refrigerator from the 1^st opposite party for Rs.71,700/- including tax Rs.9,079.79 on 09/09/2016. The product was delivered to the complainant on 10/09/2016.

As per Exbt. A3 it is evident that the complainant had sent registered legal notices to all the 3 opposite parties on 25/09/2020. 1^st opposite party refused the registered legal notice sent to them (Exbt. A4). 2^nd opposite party accepted the registered legal notice sent by the complainant on 20/09/2020. Exbt. A7 is the reply sent by the opposite party to the complainant’s counsel dated 03/11/2020. The reply notice opposite party had stated that the complainant’s refrigerator is in perfect good conditions after the service.

The refrigerator showed some technical issues on 13/08/2020 after 4 years from the date of purchase. The complainant alleges that the fridge was not working from 13/08/2020 to 25/09/2020. On 26/09/2020, a service fridge having a capacity of 260 litres has been placed at the residence of the complainant against the complainant’s fridge which had 687 litres capacity. The service fridge was installed on 28/09/2020. The complainant’s fridge was taken by the opposite party. The opposite party also admitted that the complainant is provides with a service fridge having lesser capacity.  The refrigerator has a compressor warranty for 10 years. The opposite stated in their version that 4 years from the date of purchase there was no service calls which shows that the refrigerator worked well during the said period. The opposite party also admits that the condensed pipe of the refrigerator was rusted and water entered into the refrigerator. The compressor of the fridge was replaced by the opposite party. This is also an admitted fact. On 24/08/2020 a complaint of low cooling was also registered with the opposite parties but couldn’t detect any cooling problem but it was a stabilizer complainant. Again a complaint of low cooling was attended by the opposite party on 30/08/2020. On 04/09/2020 there was gas leakage problem.

The opposite parties contented that all the issues are attended by the opposite party within a short period and had rectified all the defects of the fridge and there is no deficiency in service from the part of the opposite parties. The opposite parties also contended that there is no allegation against the opposite party the refrigerator provided by the opposite party is having manufacturing defects. It was not disputed by the opposite parties that the fridge was entrusted to the opposite parties for prompt service. A service fridge having a capacity of only 260 litres has been placed at the residence of the complainant. The allegation of the complainant that the refrigerator had issues like the rusting of the condensed pipe, low cooling, gas leakage etc. are also admitted by the 2^nd and 3^rd opposite parties.

When PW1 was examined by 2^nd and 3^rd opposite parties’ counsel, PW1 deposed that the refrigerator was not fully repaired or rectified by 2^nd and 3^rd opposite parties. The frequent disorders found on the product ie. issues with the capacitor, compressor, gas complaint, copper tube and stabilizer issues clearly proves that the fridge was not working properly from 13/08/2020 till 25/09/2020. The complainant alleges that the 2^nd and 3^rd opposite parties can’t rectify the fridge which resulted in heavy loss and mental agony to the complainant. The complainant has not taken any opinion of an expert to prove that the fridge is having serious technical issues. The fridge showed frequent technical defects from 132/08/2020 to 25/09/2020 within a short period. The opposite party had provided a service fridge on 26/09/2020.

The fridge was purchased by the complainant from the opposite party for Rs.71,700/-. The complainant had used the refrigerator for 4 years despite repairs in the interim period. It can’t be expected that a refrigerator purchased for about Rs.71,700/- could only have a life of 4 years. It would be unjust on the Commission’s part if we ignore the average life expectancy of a refrigerator with a value of a 3 quarter of a lakh of rupees.

The opposite party produced only one document job card dated 21/08/2020. The opposite parties have not produced any contra evidence to prove that the refrigerator was fully rectified by the opposite party within the time and it was already communicated to the complainant. Selling a refrigerator which was having so many technical issues to a consumer can certainly be taken as an instance of unfair trade practice. A service fridge having a lesser capacity of 260 litres are provided by the opposite party. The opposite party also admits that the complainant’s fridge is now under the custody of opposite parties No. 2 and 3. Hence we assume that the product was not fully repaired or rectified by the opposite parties and hence the product was not handed over to the complainant. This act also proves that there is deficiency in service from their part. The opposite party could have rectified the complainant’s fridge within a short period from the day in which the service fridge was provided to him. The opposite party didn’t rectify the fridge so far and not returned to the complainant. Deficiency in service is proved from their side.

In view of the above observations made by the Commission the following relevant points are considered for resolving the complaint.

1. The fridge is having a purchase value of Rs.71,700/-, and having a capacity of 687 litres.
2. The complainant has used the fridge for more than 3 years without any complaint.
3. The complainant alleges that the fridge showed some recurring issues from 13/08/2020 to 25/09/2020 ie. within a short period of 1 ½  months.
4. On 26/09/2020, a service fridge having a capacity of 280 litres was provided by the opposite party and the complainant’s fridge was taken by the opposite party
5. The opposite party in their version states that all the complaints raised by the complainant are attended by the opposite party and there is no allegation regarding the manufacturing defect.
6. There was no expert opinion to prove that the fridge is having serious technical issues.
7. The product was not fully rectified by the opposite party and the complainant’s fridge was now under the custody of opposite parties. The opposite party could have rectify the defects within a limit fixed by the opposite party.
8. The complainant has asked for the replacement of the defective refrigerator by a refrigerator of the same make and capacity or in the alternate an equivalent model with the same capacity and facilities.
9. The complainant’s 1^st relief can’t be granted by the Commission without the report of an expert that the product is having serious technical/manufacturing defect.

The onus to prove that there was manufacturing defects. In Sukhvinder Singh vs Classic Automobile I (2013) CPJ 47 NC held that to prove manufacturing defect, report of expert is necessary.

The complainant’s counsel argued that the defects are recurring and still can’t resolve the problem. In Ajith Chit Fund Pvt. Ltd Vs.Telecom I (2007) CPJ 204 and Swaraj Maazde Ltd. Vs.P.K. Chak Kapoor  II (2005) CPJ 27 NC held that expert opinion is must for proving manufacturing defect. 

We find that the complainant is entitled to get compensation from the opposite towards the deficiency in service and unfair trade practice from their part. The issues No. 1 and (2) are found in favour of the complainant.

In the result

1. We direct the opposite parties to pay an amount of Rs.40,000/- (Rupees forty thousand only) towards the compensation for the unfair trade practice and deficiency in service and also towards the compensation for the mental agony and inconvenience suffered by the complainant.
2. The opposite parties shall also pay the complainant Rs.10,000/- (Rupees ten thousand only) as cost of proceedings.
3. The liability of the opposite parties shall be jointly and severally.

The opposite parties are made liable to make the payment within a period of 45 days from the date of receipt of a copy of this order. If the order is not complied with the opposite party within 45 days the amount ordered vide (a) above shall attract interest at the rate of 9% per annum from the date of order till the date of realization.  

Pronounced in the Open Commission on this the 10^th day of July, 2024.

Sd/-

Sreevidhia.T.N, Member

Sd/-

D.B.Binu, President

V.Ramachandran, Member

Forwarded/By Order

Assistant Registrar

Appendix

Complainant’s evidence

Exbt. A1:    Purchase invoice of the refrigerator dated 09/09/2016 for Rs.71,700/-.

Exbt. A2:    Owners’ manual of the refrigerator

Exbt. A3:    Registered legal notice sent by the complainant’s counsel to the opposite parties No. 1, 2 and 3 dated 25/09/2020

Exbt. A4:    Addressed cover sent to 1^st opposite party which is returned to the

complainant’s counsel with an endorsement ‘refused’

Exbt. A5:    Acknowledgment card of the legal notice sent by the complainant signed by 2^nd opposite party

Exbt. A6:    Postal receipts of the legal notice sent to all the 3 opposite parties.

Exbt. A7:    Reply notice dated 03/11/2020 received from Adv. R. Padmaraj to the complainant’s counsel

Exbt. A8:    CD produced by the complainant

Exbt. A9:    Whatsapp communication with Zahir Hussain, LG service head.

Exbt. A10:  Whatsapp communication with complainant and service head of 2^nd opposite party.

Opposite party’s evidence

Exbt. B1:     Job Card

Deposition:

PW1:          Shaji Varghese (Complainant)

Despatch date:

By hand:     By post                                                  

kp/

CC No. 300/2020

Order Date: 10/07/2024