IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM
Dated, the 29th day of November, 2023
Present: Sri. Manulal V.S. President
Smt. Bindhu R. Member
Sri. K.M. Anto, Member
C C No. 36/2022 (Filed on 19/02/2022)
Petitioner : Siby Varghese,
S/o. Varghese,
Kochuthuruthel House,
Karikode P.O. Kottayam
Pin – 686610
(Adv. K.A. Bijoy)
Vs.
Opposite parties : 1. M/s. Orange Home Appliances,
Mekkara Building,
Near Private Bus Stand,
Piravom Road, Koothattukulam,
Pin - 686662
2. Samsung India Electronics Pvt. Ltd.
6th Floor, DLF Centre,
Sansad Marg, New Delhi – 110001.
(Adv. Manu J. Varappally)
3. AIR CON WORLD,
6/135 Moozhayil Building,
Ashanilayam Road,
Puthenpallikunnu, Palai - 686575
O R D E R
Sri. Manulal V.S. President
The complaint is filed under section 35 of the consumer protection Act 2019
Case of the complainant is as follows.
On 10/7/2018 the complainant purchased a brand new double door refrigerator model FF 393 LRT 39 M 553858 ELEGANT INOX having price of Rs.44,900/- vide invoice number 1036 dated 10/7/2018 from the first opposite party. The complainant purchased the said refrigerator on payment of EMI basis through M/s Bajaj Finance Limited co. As directed by the first opposite party complainant paid Rs.16,500/- at the Peruva Branch of the first opposite party and the balance amount has been paid on EMI basis on payment of Rs.3000/- per month and as such no balance is due to the first opposite party.
During the second week of May 2019, the refrigerator showed very low cooling and instability of its digital metre (digital reading is automatically changing) and the cooling of both freezer and fridge is found very low and not constant. The complainant informed the said complaints to the first opposite party. It was informed by the first opposite party that they will take necessary arrangements to cure the problem. But nothing was done by the first opposite party. Thereafter on several occasions, complainant made several complaints to the first opposite party and the registered office of the second opposite party at Edappalli, Kochi and there was no response from them. Thereafter, due to the COVID 19 pandemic and lockdown the complainant could not approach the opposite parties one and two. And at last on 27-11-2021, the complainant directly approached the first opposite party and advised him to lodge a complaint in person. Accordingly the complainant approached the 3rd opposite party and registered a complaint number 4337409152 dated 27/11/2021.
On 28/11/2021 two persons attached to the third opposite party came and attended the complaint and tried to rectify their defects, but failed. Thereafter on 30/11/2021, 2 staff engaged by the third opposite party came and took over the refrigerator to the service centre at Palai. After one week the third opposite party informed the complainant that, the refrigerator of the complainant is not repairable as the same is having internal leakage. Therefore it is clear that it is a manufacturing defect.
On receipt of this information, the complainant approached the first opposite party and demanded to take back the said refrigerator and replace with a new one, or return its price collected. But there was no response from the first opposite party. Being the manufacturer, the second opposite party has got product liability and hence they cannot be absolved from the liability of cash refund or replacement of the refrigerator.
The said refrigerator showed the above said defects and became functionless, in its warranty period. Such an expensive refrigerator did not serve the purpose of the complainant. Even now the refrigerator is in the custody of the 3rd opposite party. The 3rd opposite party has not cared to cure its defects.
The opposite parties are not cared to redress the grievances of the complainant either by repairing or by replacing such an expensive refrigerator or to refund the price collected from the complainant, even though he demanded on many occasions. Hence this complaint is filed by the complainant praying for an order to direct the first and second opposite parties to replace the refrigerator with a brand new one of the same brand or to refund the price of the refrigerator Rs.44,900/- with a 12% interest from 10.7.2018 and to direct the opposite parties to pay Rs.10,000/- as compensation for the mental agony, inconveniences and hardships caused to the complainant.
On receipt of notice from this commission second opposite party appeared before the commission and filed a version.
Notice to the first opposite party is served on 25/2/2022 as for the track record. Notice to the third opposite party is served on 25/2/2022 and the acknowledgement is duly returned to this Commission. Despite the receipt of notice the first and third opposite parties did not care to file version hence the first and third opposite parties declared as exparte.
Version of the second opposite party is as follows:
The second opposite party is a well reputed company and is having a very large customer base and among others, manufactures, manages the electronic appliances, mobile handset business having its office at New Delhi. In the Samsung refrigerator if some defects are noticed that will not automatically come within the meaning of manufacturing defects and there may be possibility for that defect due to mishandling, improper handling or any other reasons also which could be rectified. When the complainant raised complaint regarding cooling issues in the refrigerator the service engineer inspected the refrigerator and found internal leakage in the said units and since the internal leakages were non-reparable the service centre out of goodwill and also as per the company’s policy offered 35% depreciated refund of the unit to the complainant but the compliant denied the same and demanded commercial solution for the same. The service centre tried multiple times to contact the complainant to deliver the said unit but the complainant was not reachable and filed this complaint. There were no manufacturing defects in the refrigerator and the defects in the said refrigerator had happened outside Warranty period. The damages in the said refrigerator occurred outside warranty. Due to physical damage and mishandling done by the complainant thus in that scenario refund / replacement of the unit were not included in the warranty terms and conditions of the said refrigerator. There is no deficiency in service or unfair trade practice on the part of the second opposite party.
Complainant filed a proof affidavit in lieu of chief examination and marked exhibit A1 and A2. The report of the Expert Commissioner is marked as exhibit C1. Sandeep Sahijwani, who is the director customer satisfaction of the second opposite party filed proof affidavit in lieu of chief examination and marked exhibit B1 and B2 from the side of the opposite party.
On evaluation of complaints, version and evidence on record we would like to consider the following points.
- Whether there is any deficiency in service or unfair trade practice on the part of the opposite parties?
- If so what are the reliefs and cost?
Points Nos.1 and 2 together.
It is proved by the Exhibit A1 tax invoice that the complainant had purchased refrigerator model FF 393 LRT 39 M 553858 elegant inox from the first opposite party on 10/7/2018. According to the complainant during the second week of May 2019 the refrigerator showed very low cooling and instability of its digital metre. Though the complainant informed these complaints to the first opposite party on several occasions they did not care to cure the defects of the refrigerator. On 27/11/2021 the complainant directly approached the first opposite party and as per their direction the complainant registered a complaint on 27/11/2021 with the third opposite party. It is admitted by the second opposite party that the refrigerator of the complainant had internal leakage and the internal leakage was not repairable.
The Expert Commissioner in exhibit C1 report reported that the refrigerator is completely in non working condition and the refrigerant of the refrigerator was not working due to the defects in copper tube. He further reported that these defects of the refrigerator was due to the manufacturing defect or inferior quality of the material which is used for the manufacturing of the refrigerator The Expert Commissioner inspected the refrigerator at the premises of the 3rd opposite party and the representative of the 3rd opposite party was present at the time of the inspection. From the evidence of the expert commissioner we can hold that the refrigerator which was manufactured by the second opposite party and sold by the first opposite party to the complainant is having manufacturing defect.
The main contention of the second opposite party is that the defect of the refrigerator had happened outside the warranty period due to the physical damages and mishandling done by the complainant.
On perusal of exhibit A2 we can see that the second opposite party offered a warranty for 12 months for refrigerator and 60 months for compressor and 120 months on digital inverter compressor. It is pertinent to note that the 1st opposite party offered a warranty of 5 years for the compressor of the refrigerator. By offering a warranty of 5 years for the main component of the refrigerator the first opposite party assured their customers that the refrigerator had a minimum life span of 5 years. However it is pertinent to note that the expert commissioner reported that the defect of the refrigerator was due to the manufacturing defect or due to the inferior quality of material used for the manufacturing of the refrigerator. The selling of a product which did not have the standard as claimed and advertised by the manufacturer is an unfair trade practice. Here the first opposite party sold said double door fridge to the compliant for amount of Rs.44,900/- which was manufactured with inferior quality of materials that caused the defect in the fridge. Hence the first opposite party is liable to rectify the defect or replace the product to the complainant. The first opposite party cannot escape from its liability to the consumers who spent a considerable amount for purchasing a product of the first opposite party stating that the defects in the product was occurred outside the warranty period offered by the first opposite party. Admittedly the defect of the refrigerator was not rectifiable. Therefore we are of the opinion that the first opposite party by selling a refrigerator which was manufactured with inferior quality of materials to the complainant had committed deficiency in service and unfair trade practice. Keeping in mind the salutary principles of consumer Protection Act we allow this complaint and pass the following order.
- We here by direct the first opposite party to replace the refrigerator with a brand new one of the same brand within 30 days of receipt of copy of this Order, failing which to refund the price of the refrigerator Rs.44,900/- (Rupees Forty four thousand and nine hundred only) to the complainant within 30 days from the date of receipt of copy of this order.
- We hereby direct the first opposite party to pay Rs.10,000/- as compensation for the mental agony, inconveniences and hardships caused to the complaint.
Order shall be complied within 30 days from the date of copy of receipt of this Order. If not complied as directed, the compensation amount shall carry 9% interest from the date of Order till realization.
Pronounced in the Open Commission on this the 29th day of November, 2023
Sri. Manulal V.S. President Sd/-
Smt. Bindhu R. Member Sd/-
Sri. K.M. Anto, Member Sd/-
Appendix
Exhibits marked from the side of complainant
A1 – Tax invoice dtd.10/07/2018 issued by 1st opposite party
A2 – Warranty cared issued by 2nd opposite party
Exhibits marked from the side of opposite party
B1 – Copy of Power of attorney dtd.01/01/2021
B2 – Copy of customer service record card
Commission Report
C1 – Copy of commission report submitted by Sunil R, Senior Instructor, Govt. ITI
Ettumanoor
By Order
Assistant Registrar
