Tamil Nadu

StateCommission

A/178/2016

S. Kumar - Complainant(s)

Versus

M/s. BSH Household Appliances Manufacturing Pvt. Ltd., & anr - Opp.Party(s)

S. Radha Devi

30 Nov 2022

ORDER

IN THE TAMIL NADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI.

 

Present:Hon’ble Thiru. Justice R.SUBBIAH ... PRESIDENT

             Thiru.R VENKATESAPERUMAL       … MEMBER

 

F.A. No.178 of 2016

(Against the Order, dated 22.09.2016, in C.C. No.270 of 2012, on the file of  the DCDRF, Chennai-North)

 

                                  Orders pronounced on:  30.11.2022

 

S.Kumar @ Kumarasamy,

No.11-A, Pump House Road,

Shencottai,

Tirunelveli 627 809.             ... Appellant/Complainant

 

vs.

 

1. BSH Household Appliances

     Manufacturing Pvt. Ltd.,

Arena House, 2nd Floor,

Plot No.103, Road No.12,

MIDC, Andheri East.

 

2. The Manager-Service,

BSH Bosch & Siemens Home

     Appliances Group,

New No.7, Old No.4,

2nd Floor,

Palat shankaran Street,

Mahalingapuram, Chennai-34.    ... Respondents/OPs

 

             For Appellant           :  M/s.S.Radhadevi

             For 1st Respondent :  M/s. S. Rajani Ramadoss

             Second Respondent : Served called absent.

 

This First Appeal came up for final hearing on 21.10.2022 and, after hearing the arguments of the appellant's side and perusing the materials on record and having stood over for consideration till this day, this Commission passes the following:-

 

O R D E R

 

R.Subbiah, J. – President.

 

             The unsuccessful complainant before the District Forum has come up with the present Appeal, challenging the order, dated 22.09.2016, passed in C.C. No.270 of 2012 on the file of the DCDRF, Chennai-North, whereby, the complaint filed by him as against the respondents herein was rejected with liberty to file a consumer complaint with the same set of cause of action, within two months from the date of the order and to work out his remedy in the manner known to law before appropriate forum.

 

             2.  For the sake of convenience, the parties are referred to in this order as per their nomenclature before the District Forum.

              In brief, the case of the complainant is that he is a resident of Tirunelveli District; that, on 14.03.2009, he purchased a Siemens Refrigerator - Model No.KS 36 U with 400 Ltr. capacity from the Authorized Dealer/Vasanth & Co. at Door No.11, Trivandrum Road, Palayamkottai, Tirunelveli-2, for a sum of Rs.34,500/- which was paid by way of cash; that the OPs installed the Refrigerator only after a period of three months ie., on 12.06.2009; that, within few days after the installation, the complainant had found the Refrigerator not functioning, whereupon, he contacted the Authorized Service Station that deputed a Technician, however, the issue could not be rectified even after about  6 attempts; that the compressor was replaced thrice which only indicates that the Appliance sold to the complainant was a defective one; and that, after issuing legal notice, dated 08.09.2012 to the OPs, the complaint was filed before the District Forum, seeking to direct the OPs to refund to him Rs.34,500/- and also to pay Rs.4 lakh as compensation for the mental agony suffered by the complainant due to the service deficiency on the part of the OPs, besides Rs.20,000/- towards costs.

 

             3. The OPs filed a Version, denying the allegations made by the complainant. Inter alia, it is stated therein that the failure of the Compressor may be due to frequent closing and opening of the refrigerator's door and keeping it open for a long time, storing hot stuff inside the compartment, improper maintenance, installation of the Appliance inside the kitchen, etc., for which, the complainant cannot blame the OPs; that, in view of the reason that the Compressor has a warranty of 5 years, it was replaced without even collecting any service charge; that the complainant purchased the item in question at Tirunelveli, where it has been in continuous usage till date and further, the servicing was also done at Tirunelveli and, that being so, mere legal notice sent by the complainant to the OPs will not confer any jurisdiction to file the complaint against them; that the very first call from the complainant was made nearly after one year of purchase allegedly over the cooling issue, which the Service Centre had attended and duly rectified at the earliest by replacing the Compressor; that the Service Technician had also recorded in the  Job Card that the Appliance was functioning satisfactorily and the said aspect was also endorsed by the complainant, who had signed the job card without any demur; that it is not known as to whether the complainant had operated the refrigerator based on the warranty terms or not; and that the allegations of the complainant are totally false and hence, the complaint is liable to be dismissed.

 

             4. To substantiate the claim and counter-claim, both sides filed their respective proof affidavits and, while the complainant marked 7 documents as Exs.A1 to A7, on the side of the OPs, 4 documents were marked as Exs.B1 to B4. By the impugned order, dated 22.09.2016, the District Forum held that the said Forum at Chennai had no jurisdiction to entertain the complaint, since the entire cause of action had taken place at Tirunelveli and consequently, rejected the complaint with a direction/liberty as aforementioned and, aggrieved thereby, the complainant has come up with this Appeal.

 

             5. Learned counsel for the complainant states that under Ex.A3/Job Card, nowhere it is mentioned that there is a Branch Office of Siemens at Tirunelveli.  Not only that, while the address of the 2nd OP is mentioned therein at Chennai, it is also stated to the effect -

                'if you have a query related to this invoice or need to book a service call in future please Tel:044-33463350'

and the said telephone code-044 pertains to Chennai.; as such, there is no embargo for the District Forum at Chennai to entertain and decide the complaint.  Also, the OP had deputed a Technician, who came only from Chennai to attend the fault.  Hence, the District Forum ought not have rejected the complaint for want of jurisdiction.

 

             6. We have carefully examined the case in the light of the materials available on record.

             At the first instance, we intend to express our dissatisfaction over the manner in which the case has been  dealt with by the District Forum.  Admittedly, the complaint was filed in the year 2012.  Generally, upon filing a case by or on behalf of a litigant-consumer before a District Forum,  the said Forum, before numbering the case, would scrutinize the papers presented and, upon engaging a doubt or seeking clarity over any issue including the apparent point of jurisdiction aspect, they would return the papers for clarification, compliance or rectification of defects. In the present instance, if the District Forum was of the view that the complaint was bad for want of jurisdiction, they could have then and there returned the case papers to the complainant, but, after keeping the case on file for about four long years and after allowing the parties to contest the matter, the District Forum vainly proceeded to just reject the complaint for want of jurisdiction, which practice is nothing but a clear deviation from the fundamental legal principle epitomized in the maxim 'actus curiae neminem gravabit, which means, an act of the Court shall prejudice no man.  Such rejection of the complaint by the District Forum with liberty to the complainant to seek remedy by filing fresh complaint before appropriate forum cannot be justified or endorsed, both legally and ethically.  In that view of the matter, the impugned order passed by the District Forum is rendered null and void.

             Coming to the merits of the case, it is not in dispute that the alleged defective home appliance is a product of the 1st OP and the only defence raised by the OPs before the District Forum was that when the purchase, usage and repair pertaining to the product were all at Tirunelveli, without there being any proof that the Technicians were sent from Chennai by the 2nd OP/Service Wing of the 1st OP, the complaint ought to have been filed before the jurisdictional forum at Tirunelveli and, as such, the case filed before the District Forum at Chennai cannot be maintained for want of jurisdiction.

             In our view, the technical defence taken by the OPs has no substance, since the records speak otherwise. Firstly, the job card series under Ex.A3 show that the appliance which was purchased in the year 2009 suffered problems in 2010 itself; that the compressor, which is the main part of the fridge, had recurrent issues; that, in one of the job cards under Ex.A3 with Invoice No.470042612, the 'Additional Payment Information' corresponds to the 2nd OP's address at Chennai; and that the grievance of the complainant has been throughout dealt with by none else than the 2nd OP himself-Mr.Sivakumar, who not only replied to the legal notice by stating under Ex.A5, reply dated 10.09.2012, that a permanent solution would be given to the issue soon, but also earlier assured by his email letter under Ex.A7, dated 21.08.2012, stating that he would address the issue after his return from the camp at Mumbai where the Head Office/1st OP situates.  If really the Branch of the OPs at Tirunelveli had a battery of technicians, there was no necessity for the 2nd OP/Manager to convey a message through Ex.A7 that he would discuss the complainant's issue with the technician at his own disposal.   Although the service-branch of the OPs at Tirunelveli is described in the Job Cards, in the case of the complainant, the repair and service issues raised by him do not seem to have been dealt with by any service-agency or branch of the OPs at Tirunelveli, rather, the same were throughout dealt with only by the 2nd OP himself and, that is why, the complainant, who is a resident of Tirunelveli, rightly laid the complaint before the District Forum at Chennai within whose jurisdiction the actual service hub of the OPs, that dealt with the faults in the product purchased by the complainant as well the grievance raised by him, functions.  But unfortunately, the District Forum totally misdirected itself by examining the documents in  a very shallow manner and committed a blatant error in rejecting the complaint after four long years with liberty to the complainant to work out his remedy before appropriate forum.  Therefore, it is just and proper that the matter shall be remanded back to the Forum below for  fresh consideration and disposal.

 

             7. In the result, the First Appeal is allowed by setting aside the impugned order, dated 22.09.2016, passed by the DCDRF, Chennai-North, in C.C. No.270 of 2012, and consequently, the matter is remitted back to the file of the DCDRF, Chennai-North, for fresh consideration and its disposal on merits and in accordance with law, within a period of three months from the date of receipt of a copy of this Order.  Needless to mention that both sides shall co-operate for disposal of the complaint by the District Forum within the timeline fixed above.

 

 

Sd/-                                                                                                                       Sd/-

R VENKATESAPERUMAL                                                                         R.SUBBIAH                        

             MEMBER                                                                                         PRESIDENT