Kerala

Idukki

CC/183/2020

V F George - Complainant(s)

Versus

Bismi Home Appliances - Opp.Party(s)

07 Jun 2023

ORDER

 

DATE OF FILING : 22/12/2020

IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, IDUKKI

Dated this the 7^th day of June 2023

Present :

              SRI.C.SURESHKUMAR                                               PRESIDENT

              SMT.ASAMOL P.                                                          MEMBER

              SRI.AMPADY K.S.                                                        MEMBER

CC NO.183/2020

Between

Complainant                           :   V.F.George,

                                                    Residing at Vettikkattil House,

                                                    Vandamattom P.O., Thodupuzha.

                                                    (By Adv.B.Salu)

                                                           And

Opposite Party                       :   1 .  M/s Bismi Home Appliances LLP,

                                                         Kalarickal Bazar, Thodupuzha,  

                                                         Represented by its Managing Partner.

                                                   2  . M/s Panasonic India Private Limited,

                                                          2^nd Floor, Door No.37/2022-C-D-G-H,  

                                                          Joseph and Valentines Building,

                                                          Subhash Chandra Bose Road,

                                                          Jawahar Nagar, Kadavandra- Cochin,

                                                          Ernakulam, Kerala – Pin 682 020,

                                                          Represented by its Managing Director.

                                                          (By Adv.Lissy M.M.)

                                                             

O R D E R

SMT.ASAMOL P., MEMBER

 

Complainant’s case is briefly discussed hereunder:-

 

1 . Complainant’s son, Prince George has purchased a Panasonic Refrigerator NR-BS60MSX1 (530L SIDE BY SIDE) 43834 along with other electronic items for Rs.1,32,600/- for the use of complainant on 13/08/2019 from 1^st opposite party at Thodupuzha.  The purchase price of the Refrigerator was Rs.41,092.44/-.

(Cont.....2)

-2-

 

2 . The Refrigerator was installed by the representative of 1^st opposite party at the residence of the complainant on the day itself.  Though it was noticed that the same was not functioning well and the same was intimated to 1^st opposite party they advised the complainant that it would be solved itself gradually within one or two months when the complainant practiced to handle the machine.  Even after two months of the purchase the complainant noticed that the Refrigerator was not functioning well due to overheating and vibration.  When the matter was reported to the 1^st opposite party, its sales representative came to the house of the complainant on 04/05/2020 and suggested him to provide sufficient space in between the wall and the Refrigerator to solve the defect.  But the same was in vain.

3 . By the end of May 2020 the complainant demanded 1^st opposite party either to replace the Refrigerator or to return the price of the same if the complaint of the article is not repaired within a reasonable time. 1^st opposite party promised to the complainant that they should solve the problem at any cost but due to lockdown their service centre at Ernakulam was closed temporarily and the grievance of the complainant will be solved as far the earliest soon after the re-opening of the service centre.  Though the complainant reminded 1^st opposite party repeatedly in many times, they stated excuses that their service centre was not opened so far.

4 . Thereafter on 05/06/2020 upon demand of complainant, service manager of opposite party  visited the house of complainant, inspected the Refrigerator and find out that it was not functioning well due to overheating and vibration and that it is a manufacturing defect which required major service and the refrigerator is to be taken to their service centre at Ernakulam. 

 

(Cont.....3)

-3-

 

However he informed the complainant that he himself would take the same to their service centre at Ernakulam whenever their service centre opened shortly within one or two months.  After two months later, on 24/08/20202 when the complainant approached the opposite party, they informed the complainant that though the service centre at Ernakulam was not opened the article should be taken to their service centre at Kottayam.  They also requested a short span of time to solve the grievance of the complainant since they were busy with Onam sale and the service manager assured the complainant that warranty period will not be traced on expired due to the shutdown of their service centre at Ernakulam as well as the lockdown in the event of Covid -19 throughout the country.

5 . Whenever complainant had demanded repeatedly to repair the Fridge opposite parties deliberately mentioned excuses one after another and the grievance of the complainant was not solved.

6 . That the  aforesaid act of the opposite parties amounts to deficiency of service and unfair trade practice and the complainant is entitled to refund the entire price of the refrigerator.  The complainant is also entitled to a compensation of Rs.20,000/-(Twenty Thousand only) against the aforesaid deficiency of service by the opposite parties as the complainant has been made to suffer due to the above said acts of the opposite parties.

He has prayed the following reliefs.

1 . Order the opposite parties to refund the entire amount to him along with interest at 12% per annum along with an amount of Rs.20,000/-(Twenty Thousand only) compensation to the complainant in lieu of loss of value of money, harassment, mental pain agony etc suffered by him.

(Cont.....4)

-4-

2 . Allow the complainant to recover the cost of the litigation from the opposite party.

The contentions of 2^nd opposite party are briefly discussed hereunder:-

1 . The complaint is not maintainable as the services of this 2^nd opposite party does not suffer from any deficiency within the meaning of Section 2(11) of the Consumer Protection Act, 2019.

2 . That the complaint is also barred by Section 2(6), (10), (42) and (47) of the Consumer Protection Act, 2019, in as much as, there is neither any unfair trade practice, any defect in the product nor any deficiency in the service provided by 2^nd opposite party.  Also, under the terms of warranty, this 2^nd opposite party is obliged to repair the refrigerator purchased by the complainant, free of charge during the period of warranty and subject to warranty terms and conditions.  The warranty clause does not warrant replacement of the Refrigerator or refund of the purchase price of the Refrigerator.

3 . That the complaint is not maintainable in the back drop of the settled principles of law which states that, no direction for refund of purchase price or replacement of the product can be issued where the article is repairable.  The following judgements purports the above said law.

• Tata Engineering & Locomotive Co.Ltd and Anr. V.M.Moosa 1994(2) CTJ 1046
• S.K.Aggarwal Vs.Godrej GE Appliance II (1997) CPJ 341 (Del.)
• Tapan Kumar Chakraborty Vs.Expo Machinery Ltd., II (1994) CPJ 517 (WB).

 

 

•  

 

 

1.  

4 . In the case of Tata Engineering & Locomotive Co.Ltd., Vs.M.Moosa reported as 1994 (3) CPR 395, the Hon’ble Commission held as under:-

“...if the defects occurring in any goods purchased, the Consumer Protection Act authorises the Forum to have the defects removed, even if there are numerous defects which can be rectified.  It will be very hard on the manufacturer to replace the goods or refund its price merely because some defect (not manufacturing defect) appears which can be rectified or defective part can be replaced”.

5 . That Section 38 of the Consumer Protection Act, 2019 provides for the examination/ testing of the product in respect to which the complainant alleges a defect and which cannot be determined without proper analysis or test.  The Hon’ble National Commission had examined aforesaid provision enumerated under Sec.13 of the Consumer Protection Act, 1996, in the case of Regional Manager, CEAT Limited Vs Katamereddi Gopal Reddy reported as (1997) 5 CTJ 511 (CP) (NC).

6 . That Section 38 of the Consumer Protection Act, 2019 specifically provides for expert opinion and in the present case the complainant has failed to produce the expert report before the Hon’ble Commission hence, unable to prove that the Air Conditioner suffers from any defect as alleged in the complaint.  Since the present case oppose to the above case law as there was no manufacturing defect in the product sold to the complainant.  Hence, no responsibility to refund the said unit arises on the this opposite party.

7  . That complainant has not stated the true, correct and complete set of facts in the complaint and is thus guilty of concealment of facts.  The relevant facts of this case are succinctly stated as under:-

(Cont.....6)

-6-

i  . That complainant has purchased the product, ie., Refrigerator manufactured by the 2^nd opposite  party bearing Model No.NR-BS60MSXI on 13/08/2019 for an amount of Rs.41,092.44/-.

ii   .  That on 11/05/2020 ie., after the expiry of more than 10 months the complainant raised a complaint for the very first time with respect to some overheat and vibration.   That upon receipt of the complaint, the service engineer inspected the Refrigerator.  That after inspecting the Refrigerator, the service engineer serviced the Refrigerator and resolve the issue of overheat and vibration and made it in the perfect working condition as before to the entire satisfaction of the complaint.

8 . Without prejudice to the aforesaid and without admitting any liability, it is submitted that this opposite party is ready and willing to repair the Refrigerator, as per the terms of warranty conditions of the product.

9 . It is denied that the Refrigerator was not functioning well and it is also denied that the opposite parties advised the complainant that it would  solved itself within one or two months.  It is further denied that after two months of purchase the complainant noticed that the refrigerator was not functioning well due to overheat and vibration.

10 . It is further submitted that the no deficiency in the service provided by the opposite parties to the complainant.  Hence, complaint may be dismissed.

After filing written version, this case was posted for evidence of complainant.  But complainant was continuously absent and not represented by the counsel at any of the posting dates for evidence.  Opposite parties  was also absent and not represented.  Hence this case was taken for orders.  Now, the points which arise for consideration are:-

(Cont.....7)

-7-

 

1. Whether there is any deficiency in service on the part of opposite parties?
2. What reliefs the complainant is entitled to?

Points are considered together

We have perused the complaint.  Taxable invoice dated 13/08/2019 was produced along with complaint.  This is issued from 1^st opposite party.  No  other documents produced.  No evidence was adduced by complainant to prove his contentions.  On the posting dates for evidence, complainant was neither present nor represented by his counsel.  Complainant has not tendered either oral or documentary evidence.  There is no expert opinion about Fridge either.  Complainant has alleged that the refrigerator which he purchased from 1^st opposite party was not functioning well due to overheating and vibration, though this was reported to opposite parties, they didn’t solve his grievance.  But, these contentions were not proved.  Since the deficiency in service on the part of opposite parties is not proved, this complaint is dismissed without costs.

Extra copies to be taken back by parties without delay.

 Pronounced by this Commission on this the 7^th  day of June, 2023.

                                                                                            Sd/-

                                                                                SMT.ASAMOL P., MEMBER                                                                                                          

                                                                                                      Sd/-                                                                  

                                                                         SRI.C.SURESHKUMAR, PRESIDENT                                                                                               

                                                                                                      Sd/-                                                                           

                                                                                 SRI.AMPADY K.S., MEMBER

APPENDIX

Nil

                                                                                            Forwarded by Order  

 

 

                                                                                      ASSISTANT REGISTRAR