Chandigarh

StateCommission

A/122/2022

BSH HOUSEHOLD APPLIANCES MANUFACTURING PRIVATE LIMITED - Complainant(s)

Versus

NIMRAT GUJRAL - Opp.Party(s)

VIPUL JOSHI ADV.

15 Dec 2022

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

 

Appeal No.	:	122 of 2022
Date of Institution	:	07.09.2022
Date of Decision	:	15.12.2022

 

 

 

 

 

 

BSH Household Appliances Manufacturing Private Limited, Arena House, 2^nd Floor, Main Building, Plot No.103, Road No.12, MIDC, Andheri (East) Mumbai – 400 093, Maharashtra, through its Authorized Representative, namely, Mr. Harpreet Singh Saini, Aged about 37 years, son of Mr. S. Angrez Singh Saini.

 

……Appellant/Opposite Party No.2.

Versus

Nimrat Gujral R/o House No.1559, Sector-36 D, Chandigarh – 160036.

…..Respondent/Complainant.

 

BEFORE:    JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT

                   MRS. PADMA PANDEY, MEMBER

                  MR. RAJESH K. ARYA, MEMBER

                   MR. PREETINDER SINGH, MEMBNER

 

Argued By:-      

Sh. Vipul Joshi, Advocate for the appellant (on voice call).

Sh. Karan S. Brar, Advocate for the appellant.

Sh. Raj Sumer Singh, Advocate for the respondent.

 

 

 

 

 

PER  RAJESH K. ARYA, MEMBER

                    This appeal has been filed by opposite party No.2, namely, BSH Household Appliances Manufacturing Private Limited (appellant herein) against order dated 04.05.2022 passed by District Consumer Disputes Redressal Commission-I, U.T., Chandigarh [in short ‘District Commission’], whereby consumer complaint bearing No.319 of 2020 filed by the complainant, namely, Nimrat Gujral (respondent herein) has been partly allowed by the said Ld. District Commission in the following manner:-

“10.      In view of the above discussion, the present consumer complaint succeeds and the same is accordingly partly allowed. OPs are directed as under :-

1. to refund an amount of ₹58,765/- to the complainant alongwith interest @ 9% per annum from 04.06.2020 i.e. the date of the last repair charged.
2.  to pay an amount of ₹15,000/- to the complainant as compensation for causing mental agony and harassment to her;
3. to pay ₹10,000/- to the complainant as costs of litigation.

11.     This order be complied with by the OPs within thirty days from the date of receipt of its certified copy, failing which, they shall make the payment of the amounts mentioned at Sr.No.(i) & (ii) above, with interest @ 12% per annum from the date of this order, till realization, apart from compliance of direction at Sr.No.(iii) above.”

2.                Briefly stated the case before the Ld. District Commission was as under:-

“1.     The long and short of the allegations are that the complainant had purchased the items from Goyal Sanitary Sales (Annexure C-1 to C-3). The complainant installed various other electrical gadgets and appliances from different companies in the new house. After shifting and using the items for a while, specifically the appliances stopped working. The complainant was surprised to see that the expensive German brand new appliances manufactured by Siemen’s Ltd. completely stopped working. The complainant intimated OP No.1, as all the above mentioned appliances stopped working (Annexure C-10). These appliances failed to start and function. The power source of every appliance was damaged due to improper installation by OP No.1. As per complaint, the OP No.1 never suggested or installed any precautionary measures to stabilize excess voltage and protect the expensive appliances from damages caused by electricity fluctuation. The contended products were purchased in July, September, and November 2018. All the appliances fall under the 24 month international manufacturer warranty on 21.07.2020 to 20.07.2023 (Annexure C-11). Later the representative of OP No.1 repaired the appliances after a delay of 2 months in 6 different visits. Repair of the appliances was not required when the appliances were already under warranty till 2023. The OP No.1 repaired the appliances in 6 service visits and charged Rs.800/- per visit charging the complainant with Rs.4800/- arbitrarily. The complainant was charged with a huge amount of Rs.58,765/- for repair of the home appliances. Alleging that the aforesaid act amounts to deficiency in service and unfair trade practice on the part of Opposite Parties, complainant has filed the instant complaint.

2.       Opposite Party No.1 & 2 contested the consumer complaint. In the present case, the complainant has no locus standi to file this complaint as all the invoices of the impugned products are in the name of “Mr.Daljit Singh Gujral” whereas the complainant is “Nimrat Gujral”. No authority, power of attorney or any other documents is provided which gives authority to the complainant Nimrat Gujral to proceed with this consumer dispute. The product was in 2 years warranty and charges were taken because of external damage issues. Copies of job-sheets are annexed as Annexure R/1.The complainant has herself admitted that there has been a voltage issue at her premises due to which all the appliances got some problem. The voltage spark was very huge that’s why the multiple parts got damaged and it was charged also. Copy of the email is annexed as Annexure R/2. Pleading that there is no deficiency in service or unfair trade practice on their part, Opposite Party No.1 & 2 prayed for dismissal of the consumer complaint. On these lines, the case is sought to be defended by the OP No.1 & 2.”

3.                The order passed by the Ld. District Commission has been assailed by the appellant on the following grounds:-

(i)       that the respondent is not a consumer as defined under Section 2(7)(i) of Consumer Protection Act, 2019 (in short ‘CPA 2019’);

(ii)      that in the impugned order, it has been wrongly recorded that the products were installed in November 2019, whereas the same were installed on 07.02.2019, when the respondent started residing in the new house;

(iii)     that the Ld. District Commission wrongly recorded that no proper instructions were provided at the time of installation of the products whereas proper instructions as stated in the User Manuals were duly provided;

(iv)     that the Ld. District Commission failed to exercise its jurisdiction by not seeking any evidence with regard to the averment that other appliances in respondent’s premises like air conditioner, fans, elevator etc. were functioning without any difficulty after the occurrence of the voltage issue;

(v)      that Ld. District Commission has failed to appreciate the clear terms under the warranty which states that there would be no liability on the manufacturer for damaged caused to the products due to external reasons, which include voltage fluctuations;

(vi)     that the appellant was under no obligation to install external stablizers within the premises of the respondent under the warranty card of any other law unless expressly stated in its terms and conditions;

(vii)    that there is no inherent manufacturing defect in the appliances of the appellant and the respondent did not bring on record any expert opinion to establish any such defect.

4.      On the other hand, the Ld. Counsel for the respondent has argued that the order impugned is a well reasoned order based upon true appreciation of facts and law and does not need any interference by this Commission. Besides this, he has also filed an application under the provisions of Section 151 of Code of Civil Procedure 1908 for vacation of ex-parte stay order dated 12.09.2022 passed by this Commission on the ground that the appellant has not approached this Commission within clean hands and is trying to find lacunas to escape their liability.

5.                On the other hand, without filing reply to the application, the same has been contested by the Ld. Counsel for the appellant stating that in compliance to order dated 12.09.2022, the entire decretal amount has been deposited by the appellant before this Commission i.e. an amount of Rs.41,883/- was deposited at the time of filing the appeal and subsequently, another amount of Rs.41,882/- was deposited in compliance to stay order dated 12.09.2022.

6.                In this regard, it may be stated here that on 12.09.2022, while issuing notice to the respondent, this Commission stayed the operation of the impugned order subject to the appellant depositing the entire amount awarded by the Ld. District Commission minus the amount of Rs.41,883/- already deposited at the time of filing the appeal, with the Ld. District Commission within two weeks from the date of the said order. Since the entire amount awarded by the Ld. District Commission has already been deposited by the appellant with this Commission, therefore, the contention of the resondent that the appellant is trying to escape its liability does not sustain. As such, the application filed by the respondent seeking vacation of stay order dated 12.09.2022 stands dismissed.

7.                There is also a delay of 81 days in filing the present appeal, for condonation whereof, the appellant has also moved a Miscellaneous Application No.680 of 2022 alongwith the supporting affidavit. In the application, it has been stated the copy of the impugned order was received by the appellant on 17.05.2022 and the appeal could not be filed within limitation period as its officers had been functioning on fifty percent capacity since 01.04.2022 due to the rise of Covid-19 cases in Maharashtra. Though no reply to the application has been filed yet Ld. Counsel for the respondent contested the same. After hearing the Ld. Counsel for the parties on the application and the grounds taken therein, we feel that the appellant has shown sufficient reason to condone the delay as the Hon’ble Apex Court has also condoned such delay while taking into consideration the ongoing Covid-19 Pandemic during the said period. For the reasons stated in the application, which is duly supported by an affidavit, the application for condonation of delay stands allowed and the delay in filing the appeal stands condoned. MA/680/2022 stands disposed of accordingly.

8.                Now coming to the merits of the case, after giving our thoughtful consideration to the rival contentions raised by the Ld. Counsel for the parties and going through the record, we are of the considered view that the appeal is liable to be dismissed for the reasons to be recorded hereinafter.

9.                Coming to the first contention raised by the appellant that the respondent is not a consumer as defined under Section 2(7)(i) of Consumer Protection Act, 2019 (in short ‘CPA 2019’), it may be stated here that the respondent – Mrs. Nimrat Gujral is very much the beneficiary of the goods purchased by her husband – Sh. Daljit Gujral (in the instant case electrical appliances), as she is very much covered under definition of ‘consumer’ as envisaged in Section 2(7) of CPA 2019, which reads thus:-

“(7) "consumer" means any person who—

1. buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
2. hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.”

Thus, when a person hires services, he/she may hire it for himself/herself or for any other person. In such cases, the beneficiary (or user) of these services is also a consumer. Therefore, the objection raised in this regards is rejected being not tenable in the eyes of law.

10.              So far as the next contention raised by the appellant that in the impugned order, the Ld. District Commission has wrongly recorded that the products were installed in November 2019 whereas the same were installed on 07.02.2019, when the respondent started residing in the new house; it may be stated here that the electrical appliances and other products were purchased by Sh. Daljit Singh Gujral, husband of the complainant vide invoices, Annexures C-1, C-2 & C-3 on 21.07.2018, 15.09.2018 and 16.11.2018 respectively and were delivered at the address mentioned in the bill i.e. H.No.1559, Sector 36-D, Chandigarh. Bare perusal of the complaint filed by the respondent transpires that in Para No.3 of her complaint, she has admitted that the appliances were installed on 07.02.2019. Thus, there seems to be some typographical error in the order while recording the date of installation of the appliances at the residence of the complainant but somehow, this being just a clerical error has not much bearing on the merits of the case.

11.              As regards the contentions raised by the appellant that the Ld. District Forum wrongly recorded that no proper instructions were provided at the time of installation of the products where proper instructions as stated in the User Manuals were duly provided and that the Ld. District Forum failed to exercise its jurisdiction by not seeking any evidence with regard to the averment that other appliances in respondent’s premises like air conditioner, fans, elevator etc. were functioning without any difficulty after the occurrence of the voltage issue; it may be stated here that the Ld. District Commission, in Para 7 of its order, has rightly observed, inter-alia, as under:-

“………After using the products for a short while all siemens appliances stopped working and a service request was made to the OP's. In this respect, it appears that at the time of installation of the aforesaid products, they were not installed in the correct manner by the representatives of OP No.1 & 2. Further, it is settled law that failure on part of the OP to give instructions to the complainant to install any kind of equipment to prevent damages amounts to negligence and the OP is responsible for the consequences thereof. The Opposite Party No.1 & 2 have provided faulty service on account of their nature and manner of performance leading to deficiencies in service which has led to hefty damages incurred to the complainant and are liable to compensate the complainant with the same. We are of the view that at the time of installation of the appliances, the representatives of OP No.1 failed to check all essential parameters like, electricity points/ currents, drainage, water pressure and taps as per requirement of appliances. There is nothing on record to show any safety measures either taken by the Opposite Party or any instructions directed to the complainant regarding the same. The representative of OP No.1 & 2 merely unboxed and plugged in the appliances for the present complainant and never suggested any requirement/ need of any stabilizer/voltage converter per the requirement/suitability of the expensive appliances. It is pertinent to mention that if incidence of “over voltage” or high voltage fluctuation took place in the complaint’s residence, then all the other numerous appliances in the complainant’s residence continued to function properly and various appliances of other companies were found working without interruptions. This is not a case where there is any over voltage. No other appliances had to face a voltage/power supply problem. At the time of the incidence these appliances never got cut or burnt and are working properly without interruptions. A perusal of Annexure C-4 to C-9 clearly reflects that the term over voltage is nowhere mentioned. It is pertinent to mention that the electricity spikes are a common problem witnessed in our country which is not unforeseen.

            No voltage spike suppressors or spike busters or varistor has been installed and it is not the case of the Opposite Party that the complainant was called upon to install these equipment’s and the complainant failed to do so. If the spike suppressor or buster or varistor had been placed, that would have provided a natural defense to spikes. The failure on part of the Opposite Party to give instructions to the complainant to install these equipment’s to prevent damage due to spikes, amounts to negligence and the Opposite Party is responsible for the consequences thereof. In our opinion, even if appliances are burnt due to voltage fluctuation, while manufacturing there must be provision for sustaining certain amount of voltage fluctuation which is generally expected through stabilization. The Opposite Parties have failed to adduce any documentary evidence to show that the fluctuation is above the reasonable level.”

We are also of the view that before installation of the electrical appliance, had the appellant given instructions to the respondent/complainant to install equipments to prevent damage due to high voltage or fluctuation in voltage, the matter would have been different. However, the appellant has failed to establish that any such instructions were ever given to the complainant or to her husband before installation of the appliances, which could have prevented huge loss to the complainant. Mere installing the electrical appliances is not enough to ensure their safe and smooth functioning but it is also required of the Company engineers who came to install such appliances to ensure that necessary mechanism to provide constant voltage, without any fluctuation therein, whether it is stabilizer or any other required equipment, should have been installed there, either at the cost of the consumer or provided alongwith such appliances by charging the consumer, if he so desires. But this is all possible only, when the consumer is made aware about the sustainability and sensitivity of such appliances to fluctuation in voltage, which in the instant case, the appellant failed to do. Either the said appliances ought to have inbuilt stabilizers and if not, then the appellant was to suggest all necessary measures to the respondent before installation thereof to avoid any kind of damage to the appliances due to high voltage. Even during the course of arguments, when a query was put to the Ld. Counsel for the appellant in this regard, he submitted that there was no provision of inbuilt stabilizer in the said appliances. Therefore, the argument raised that instructions were passed on to the complainant at the time of installation cannot be accepted.

12.              Now coming to the next contention of the appellant that the Ld. District Commission failed to exercise its jurisdiction by not seeking any evidence with regard to the averment that other appliances in respondent’s premises like air conditioner, fans, elevator etc. were functioning without any difficulty after the occurrence of the voltage issue, it may be stated here that had there been any loss to the complainant or had any other appliance become defective due to high voltage on the said date, then, the respondent would have agitated the said grievance also, which is not there. It is not so, that every time, all the appliances became defective due to voltage fluctuation but in the instant case, it is admitted position on record that the appliances sold by the appellant to the respondent stopped working, when there was high voltage. As such, there was no need for the appellant to produce any evidence with regard to other electrical appliances installed in her home. Thus, this contention of the appellant being not sustainable stands rejected.

13.              The appellant has further raised a contention that Ld. District Commission has failed to appreciate the clear terms under the warranty which state that there would be no liability on the manufacturer for damaged caused to the products due to external reasons, which include voltage fluctuations. In this regard, the Ld. District Commission has rightly observed in Para 8 of its order that the products were purchased in July, September and November 2018 and as such, all the appliances fell under 24 months international manufacturer warranty which was also extended on 21.07.2020 until 20.07.2023 as is apparent from extended warranty certificates Annexure C-11. It also further rightly held that the Opposite Party was under obligation to check the suitability of the product for the complainant’s facility and provide proper installation of the appliances with due care and precautions for avoiding any damages. Holding deficiency in rendering service and indulgence into unfair trade practice on the part of the opposite party, the Ld. District Commission rightly held that the Opposite Party was under obligation to replace all the appliances still under warranty free of cost. Thus, we endorse the view held by the Ld. District Commission in this regard and the arguments of the appellant holds no water.

14.              With regard to the contentions raised that the appellant was under no obligation to install external stablizers within the premises of the respondent under the warranty card of any other law unless expressly stated in its terms and conditions and that there is no inherent manufacturing defect in the appliances of the appellant and the respondent did not bring on record any expert opinion to establish any such defect, it may be stated here that no doubt, the appliances are very much covered under international warrant up-to 20.07.2023 and per documents on record, those appliances got defective during the warranty period due to high voltage and the appellant, as discussed above, failed to pass on necessary instructions before installation of said appliances, to the respondent, to take necessary precautionary measures to control the said fluctuation by installing stabilizers etc. As observed above, either the said appliances ought to have inbuilt stabilizers and if not, then the appellant was to suggest all necessary measures to the respondent before installation thereof to avoid any kind of damage to the appliances due to high voltage. Therefore, we find nothing wrong with the view held by the Ld. District Commission that even if appliances are burnt due to voltage fluctuation, while manufacturing there must be provision for sustaining certain amount of voltage fluctuation which is generally expected through stabilization. Thus, in our considered opinion, for any damage occurred to the appliances during warranty period, due to negligence on the part of the appellant, the appellant is liable to rectify the defect(s) free of charge, without charging any fee from the respondent, which the Ld. District Commission has rightly ordered to be refunded to the respondent besides other relief.   As      such,   the Ld. District Commission has rightly allowed the complaint vide the order impugned, which does not suffer from any infirmity or material irregularity and is based upon true appreciation of facts and settled law on the subject.

15.              For the reasons recorded above, the appeal filed by the appellant is dismissed with no order as to costs.

16.              Certified copies of this order be sent to the parties free of charge.

17.              File be consigned to Record Room, after completion.

Pronounced

15.12.2022.

[RAJ SHEKHAR ATTRI]

PRESIDENT

 

 

 

(PADMA PANDEY)

MEMBER

 

 

 

(RAJESH K. ARYA)

MEMBER

 

 

 

(PREETINDER SINGH)

MEMBER

 

Ad