BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

                                          C.C.No.27/2016

Dated this the 10^th day of November 2017

(Date of Institution:  01.07.2016)

Santhi, D/o Arulanantham,

Sacred heart Convent, Sengadu,

Vallavanur (Via) Pudur Post,

Villupuram Disrict – 605 108 

                                                          …Complainant

vs        

 1. M/s Darling Digital World (P) Ltd,

     (SALES OF CONSUMER DURABLE GOODS)

     Represent by its authorized signatory,

     No. 43, (Ground floor) Villianur Main Road,

     Jawahar Nagar,

     Puducherry – 605 005.

2.  M/s. Sri Murugan Services,

    (AUTHORISED SAMSUNG SERVICE CENTRE),

    Represent by its authorized signatory,

    No. 6, Nellikuppam Main Road,

    Chavadi,

    Cuddalore – 607 001.

3. M/s. Tvs Electronics Limited,

   (AUTHORISED SAMSUNG SERVICE CENTRE),

   No. 58A. 1^st floor, Villianur Main Road,

   Pavazha Nagar, Reddiyarpalayam,

   Pondicherry – 605 005.

4. M/s. Samsung India Electronics Pvt Ltd,

    (CORPORATE OFFICE),

   Represent by its authorized signatory,

   2^nd, 3rd, 4th Floor Tower – C,

   Vipul Tech Square, sector – 43,

   Golf Course Road,Gurgaon – 122 002,

   Haryana (Inida).

                                                                                                    …...Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

THIRU V.V. STEEPHEN, B.A., LL.B.,           

MEMBER

Tmt. D. KAVITHA, B.A., LL.B.,    

MEMBER

FOR THE COMPLAINANT :Tvl.G. Iyanar, J. Jayalakshmi, R. Merveen, A. Srivalli,

                                                Advocates

FOR THE OPPOSITE PARTIES: OP.1-Thiru.M.V. Ramachandra Murthy, Advocate

                                                           OP.2& OP.3- Exparte.

                                                          OP4 – S. Vimal, Advocate.

O R  D  E  R

(By  Thiru.A.ASOKAN, President )

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 praying to direct:

The first opposite party to refund the cost of the Samsung Refrigerator, Grey Colour, Product Make No. RR22K242ZSE, 5 star energy saving, purchased from the first opposite party for Rs.15,500/- with interest at the rate of 12% p.a.;  to direct the opposite parties to pay the complainant a sum of Rs.4.00 lakhs as compensation for the hardship, harassment, humiliation, mental agony and suffering underwent by the complainant on account oft deficiency in service and unfair trade practice;  to pay the transport charge of  Rs.2,500/-;  direct the opposite parties to discontinue the unfair trade practice and not to repeat the same for any purpose whatsoever and to pay a cost of Rs.10,000/-. 

2.  The case of the complainant is as follows:

            The complainant purchased a new SAMSUNG REFRIGERATOR, Grey colour from 1^st opposite party on 04.04.2016 for Rs.15,500/-.  At the time of purchase 1^st opposite party represented that the said Samsung Refrigerator is a latest model which is having inbuilt stabilizer and hence a separate stabilizer is not required to safeguard the refrigerator from voltage fluctuations and further represented that it is a 5 star refrigerator which helps to save electricity consumption.  The complainant paid the entire amount of Rs.15,500/- to the first opposite party on 04.04.2016 and hence in turn 1^st opposite party promised to deliver the Refrigerator within 24 hours to the complainant address.  The complainant submits that at the time of delivery on 05.04.2016, the delivery persons not came forward to install the refrigerator and gave evasive reply that it is not their duty to install it and kept the refrigerator near the gate itself and went out.

She informed the same to 1^st opposite party and asked to send an authorized person for installation,  but 1^st opposite party gave an evasive reply that their service man will reach her soon but no one has come for installation for more than 2 days hence the complainant read the user manual thoroughly and installed the refrigerator as per the instructions in the user manual on 08.04.2016.  The complainant submits that after installation the refrigerator worked  for half-a-day only, few hours later the refrigerator started to vibrate with heavy noise and automatically switched off.  The complainant informed to 1^st opposite party about the defective refrigerator which is not working properly and making vibration with heavy noise.  The 1^st opposite party promised that they will send an authorized service man to repair the defective refrigerator.  The complainant submits that on 09.04.16  one by name Prakash of  2^nd opposite party represented that he is coming from authorized Samsung Service Center and he is the responsible person for doing inspection.  After inspection of defective refrigerator he replied that there is a fault in the compressor and finally he concluded that COMPRESSOR GONE FAILURE, the  refrigerator had not worked even for a whole day.  She asked the 1^st and 2^nd opposite parties to replace a new refrigerator instead of the defective refrigerator, but 1^st and 2^nd opposite parties never come forward and denied for replacement of new refrigerator.  They can change only the defective parts and they can make only service in the defective refrigerator i.e., replace the compressor set and whatever problem which will arise etc.

          3. The complainant further submitted that after repair was done on the defective refrigerator by 2^nd opposite party under the instruction guided by 1^st opposite party when the service person gone from the repair place the refrigerator worked for only 1 hour and again it become inactive and there was no chillness or cooling inside the refrigerator.  She again informed to 1^st opposite party and 2^nd opposite party about the problem arising again and again in the defective refrigerator and asked to replace a new refrigerator.  On 10.04.2016 onwards the complainant approached 1^st and 2^nd opposite parties again and again through phone calls and by party in person that the defective refrigerator was not working but there was no proper response from both 1^st and 2^nd opposite parties and simply gave irritating answer to them that another service person will come and attend the problem in the defective refrigerator.  She waited for the period of more than 1 ½ month from 10.04.2016 to 25.05.2016 and made several phone calls to 1^st and 2^nd opposite parties and by party in person but 1^st and 2^nd opposite parties never and ever attend any phone calls and never come forward to repair the defective refrigerator till then.  The complainant submits that on 26.05.2016 she hired a minivan with her own cost and took the defective refrigerator to the showroom from her dispensary with all the original bills and user manual book etc, and approached the showroom where she had purchased.  1^st opposite party again inspected the defective refrigerator which was not running and the person who is in Manager position promised that if there is any major defect they assured to replace a new refrigerator and advised her to wait from more than  1 hour.  The 1^st opposite party again gave an irritating reply that they arranged another service person from an Authorized Service Center in Pondicherry who will attend the repair.  The complainant submits that again she waited for another half-an-hour.  The service man 3^rd Opposite Party inspected the defective refrigerator and asked the complainant to wait for another half-an-hour until the repair was done.  She requested 1^st opposite party to replace it since there is a major defect in the refrigerator but 1^st opposite party not even take her words and used unwanted Filthy Language against the complainant.  The complainant further submits that at the extreme level of cruelty the Manager thrown harsh words with muscle power and threatened the complainant that he will not return back either the defective refrigerator which is under his possession from 26.05.2016 or the new refrigerator or money which the complainant spent and also challenged the complainant to give complaint against him anywhere.  That the complainant further submits that due to the above said act the complainant sustained huge loss of money, time and energy, hardship, humiliation, suffering and mental agony in the hand of 1^st , 2^nd and 3^rd opposite parties as such 4^th opposite party as a corporate office for the Samsung Products vicariously liable and hence 1^st,2^nd,3^rd and 4^th opposite parties are duty bound to compensate the complainant for a sum of Rs.4,00,0000/- for the supply of defective product (i.e) Defective refrigerator in order to cheat the complainant.  The complainant submitted that 1^st, 2^nd,3^rd and 4^th opposite parties willfully and wantonly neglected to replace the refrigerator for the reason best known to them.  The  Complainant sent a Lawyer notice on 31.05.2016 to the opposite parties and thereby directing the opposite parties to produce a new refrigerator instead of the defective refrigerator (which is under the possession of the 1^st opposite party from 26.05.2016).  The first and second opposite parties acknowledged the Lawyers Notice on 3.6.2016, intimation was given by Postal Department to third opposite twice on 01.06.2016 and 02.06.2016, however, the third opposite party returned the same on 11.06.2016.  The fourth opposite party received the notice on 04.06.2016.   The opposite parties either sent reply or came forward to replace the defective refrigerator which is under the custody of 1^st opposite party.  Hence, this complaint. 

          4. The second and third opposite parties remained absent and set ex parte.  Though the first opposite party appeared through Counsel, reply version was not filed and the same was recorded.

5.       The following are the averments contained in the reply version filed by the fourth opposite party:

They have received a service call from the complainant with regard to certain complaints in the refrigerator purchased by the complainant, immediately the service personal of the 4^th opposite party had attended the service call and on verification it was found that a part in the compressor of the refrigerator  was found to be defective and therefore the compressor part was replaced with a new one and the refrigerator purchased by the complainant was working in a good condition and thereafter the refrigerator  was working properly.  The opposite party had done proper service to the complainant as per the terms of the warranty, therefore there is no deficiency of service on the part of the 4^th opposite party.  This OP further stated that after providing the 1^st service no service call was received by the opposite parties and no complaint was made by the complainant and all that the complainant was requesting was for the replacement of the refrigerator with a new one.  Further stated that  as per the terms of warranty in case of any repair to the spare parts of the refrigerator the complainant is entitled for the replacement of the particular spare part with a new one.  In the present case as soon as they have received the service call the 4^th opposite party has attended the complaint and immediately replaced the compressor part as per the terms of the warranty and therefore no service call was received by the opposite parties therefore as per the terms of the warranty the complainant is not entitled for the replacement of the refrigerator with the new one.  In the event of any defect in any spare parts of the refrigerator the 4^th opposite party is willing to replace the spare part with a new one therefore, the relief sort for by the complainant is not maintainable and there is no cause of action for filing the above complaint as the 4^th opposite party did not receive any service call form the complainant.  The 4^th opposite party denied the averment made in para 11 and 12 of the complaint alleging that the service representative has informed the complainant that there is problem in mother board of the refrigerator.  This OP stated that the complainant did not allow the service personal to attend the service call and was insisting on the replacement of the refrigerator with a new one. As there is no fault in the refrigerator, the question of refund did not arise and there is no harassment or mental agony since there is no deficiency of service and the complainant had filed the above complaint without any basis.  There is no cause of action arises on the bare reading of the complainant as against the opposite parties and therefore the above complainant is liable to be dismissed as not maintainable.           Hence prays to dismiss the complaint with cost.

6        On the side of the complainant, one Lurducelin Assisi was examined and Exs.C1 to C13 were marked.  On the side of opposite parties, no evidence was let in and no documents marked. 

7.       Points for determination are:

1. Whether the complainant is the consumer for opposite parties?
2. Whether any deficiency in service caused by the opposite parties to the complainant?
3. To what relief the complainant is entitled for?

8.  Point No.1:

          The complainant has purchased a new Samsung Refrigerator from the first opposite party on 04.04.2016 for Rs.15,500/- vide Ex.C1.  The second and third opposite parties are the authorised service centres of Samsung products and the fourth opposite party is the manufacturer of the refrigerator.  Hence the complainant is the consumer to the opposite parties.

9.       Point No.2:

  The complainant has purchased one Samsung Refrigerator from the first opposite party on 04.04.2016 vide Ex.C1 and the Ex.C2 is the User Manual.  Ex.C3 is the Warrant card.    The Refrigerator was delivered to the complainant's address on 05.04.2016 and the delivery persons did not install the refrigerator.  The complainant asked the first opposite party to send an authorised person for installation but nobody turned up for two days and hence, the complainant herself installed the refrigerator as per the instructions in the User Manual on 8.4.2016.  That after installation, the Refrigerator worked for only half-a-day and then started to vibrate with heavy noise and then automatically switched off.   The same was informed to the first opposite party who promised to send authorised service person to repair the defects.  On 9.4.2016 a person by name Prakash representative of second opposite party came and inspected the refrigerator and found that there is fault in the compressor.  The complainant asked the first and second opposite parties to replace a new refrigerator, but they denied to replace, however, changed the defective parts.  The complainant alleged that the refrigerator worked for one hour only and then it became inactive.  Again the complainant informed the first and second opposite parties and asked to replace a new one.  That inspite of several phone calls by the complainant for about 1-1/2 months, the first and second opposite parties did not come forward to repair the defective refrigerator.  Therefore, the complainant hired a minivan and brought the refrigerator to the first opposite party and handed over with them.  Thereafter, a service person from third opposite party inspected the refrigerator and found that the Mother Board has a problem.  Since the opposite parties did not replace the refrigerator and carry out repairs, the complainant sent legal notice dated 31.05.2016 vide Ex.C4.  The 1^st, 2^nd and 4^th opposite parties received the same vide Exs.C5, C6 and C8.  Though intimation was given to third opposite party, they did not receive the legal notice vide Ex.C7.  Ex.C7 to Ex.C12 are the photographs and CD.  The above act of the opposite parties and the defects in the newly purchased refrigerator caused mental agony and sufferings to the complainant and therefore, the complainant prayed for refund of money and compensation for mental agony by way of filing this complaint. 

          10. On the other hand, the Opposite Parties 1 to 3 did not file reply versions.  The OP2 and OP3 remained absent and set ex parte.  The fourth opposite party alleged that after receipt of complaint from complainant, the service personnel of 4^th opposite party had attended the same and replaced the compressor with new one and then, the refrigerator was working properly.  Therefore, there is  no deficiency of service on the part of 4^th opposite party.  Thereafter, no complaint call was received by them.  The 4^th opposite party further alleged that as per the terms of warranty, in case of any repair to the spare parts of the refrigerator, the complainant is entitled for the replacement of the particular spare with new one.  Further alleged that the complainant did not allow the service personnel to attend the service call and was insisting on the replacement of the refrigerator with a new one. 

          11. We have perused the pleading, reply of the fourth opposite party, exhibits filed by the complainant, evidence of complainant and arguments adduced by the complainant and the fourth opposite party.  There is no dispute about the purchase of refrigerator by the complainant from the first opposite party.  The opposite parties, after purchase, has not installed the refrigerator and the complainant installed the same with the help of User Manual and the refrigerator worked for about half-a-day only and then she found noise from the refrigerator.  The service person from second opposite party inspected the refrigerator and found the compressor was under out of order and hence, the opposite parties have replaced the same with a new one.  Even then, the refrigerator worked for only one hour and thereafter, it became inactive.  The complainant informed the same to the first opposite party, but, there was no reply from them.  Since there was no response for the complaint made with the opposite parties, the complainant hired a van and brought the refrigerator and kept the same with the first opposite party's show room, where the service person from the third opposite party inspected the refrigerator and found that Mother Board got failed.  To prove the pleadings and allegations, the complainant filed photographs Exs. C9 to C12 which shows that a service person is trying to rectify the defect in the refrigerator.  Since, the complainant was waiting for rectification or replacement, the first opposite party did not care for the same.  On perusal of Ex.C3, the refrigerator is under warranty.  From the above facts and circumstances, this Forum found that right from the date of purchase, the refrigerator was not functioning properly.     The complainant sent a legal notice dated 31.05.2016 vide Ex.C4to the opposite parties and requesting them to refund the bill amount, van rent and compensation. The Exs.C5, C6 and C8 are the acknowledgement cards for the proof of delivery of Ex.C4 to OPs 1, 2 and 4.  The Ex.C7 returned postal cover proves that the third OP was duly intimated  about the legal notice.  The opposite parties have not taken any steps to send the reply for the same or to replace the defective refrigerator or to return the amount.  The first opposite party though appeared through Counsel has not chosen to defend their case before this Forum.  The OPs 2 and 3 remained absent and set ex parte.    The fourth opposite party alone filed reply version and cross examined the Power Agent of complainant.  During her cross examination, no contradictory evidence was let in by the complainant.  Further, even though the opposite parties replaced the compressor within the warranty period, the failure of the compressor itself shows that the refrigerator is having manufacturing defect.  The defects occurring one after the other and the complainant frequently approached the opposite parties makes it clear that from the date of installation, the refrigerator was having recurring defects.  The Opposite Parties also not chosen to contest the case.  From the facts above, this Forum found that the purpose for which the refrigerator  purchased by the complainant was not fulfilled.  Therefore, this Forum come to a conclusion that the first opposite party knowing well that the refrigerator is a defective one, sold the same to the complainant and caused mental agony and sufferings to the complainant. Hence, the complainant  clearly established her case and proved the defects in goods and deficiency in service.  Hence this complaint is liable to be allowed.

12.     Point No.3:

          In the result, the complaint is allowed and the opposite parties are jointly and severally directed to :

i) refund the amount of Rs.15,500/- towards the cost of the refrigerator to the complainant

ii) the pay a sum of Rs.10,000/- towards the compensation for the mental agony and sufferings undergone by the complainant.

iii) to pay a sum of Rs.5000/- towards cost of this proceedings. 

Since the refrigerator is with the custody of first opposite party, they are entitled to keep the same with them. 

Dated at Pondicherry on this the 10^th day of November 2017.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

MEMBER

(D. KAVITHA)

MEMBER

COMPLAINANT’S WITNESS:

CW1           14.03.2017           Lurducelin Assisi

OPPOSITE PARTIES’ WITNESS:  NIL

COMPLAINANT’S EXHIBITS:

OPPOSITE PARTIES' EXHIBITS:  NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

MEMBER

(D. KAVITHA)

MEMBER