Haryana

Panchkula

CC/312/2020

SHILPA KACKRIA. - Complainant(s)

Versus

SAMSUNG INDIA ELETRONICS PVT.LTD. - Opp.Party(s)

SACHIN JAIN

29 Dec 2021

ORDER

 

Before the District Consumer, Dispute Redressal, commission, Panchkula.

 

Consumer Complaint No.	:	312 of 2020
Date of Institution	:	09.10.2020
Date of Decision	:	29.12.2021

 

Shilpa Kackria W/o Sh. Vikrant Kackria, Resident of H.No.509, Sector-7, Panchkula(Haryana)-134109                                                                                                                                                          …….Complainant

                                                      Versus

1.      Samsung India Electronics Pvt. Ltd. 20^th to 24^th Floor, Two Horizon Centre Golf Course Road, Sector-43 DLF PH-V, Gurgoan, Haryana- 122202.

2.      Reliance Retail Limited, SCO-322-323, Sector-9, HUDA Market, Panchkula-134109.

3.      M/s Reliance Industries Ltd. Maker Chambers-IV Nariman Point Mumbai-400021

….. Opposite Parties

Complaint under SecTION 35 of the Consumer Protection Act, 2019  

Before:                Sh.Satpal, President.

                           Dr.Pawan Kumar Saini, Member.

                           Dr.SushmaGarg, Member.

                          

For the Parties:    Sh.Vikrant Kackria, Advocate, counsel for the                                        complainant.

                           Ms.Jyoti Rani, Advocate, counsel for the OP No.1.

                           Sh.Sanjiv Pabbi, Advocate, counsel for the OPs No.2 & 3.

Order

(SATPAL, president)

 1.              The complainant has filed this complaint with the averments that the complainant had purchased Samsung Refrigerator Model No.RS74R5101SL from OP No.2 vide bill no.846515719500060 dated 13.09.2019. The said refrigerator developed problem in the month of November, 2019 that the same would not start after disconnection of the electricity. Even after the restoration of the electricity fridge would not start from many days. The complaint was lodged in the month of December, 2019 on the helpline number and after seeing the same the service center people informed that the memory PCB Card was faulty and hence the same has to be replaced. The same was replaced by the official of the OP/company. However, in the month of May 2020, again the same problem developed and the official of the OP/company installed new memory PCB after a period of 8 days after lodging the complaint. The complainant had earlier sent a legal notice dated 14.07.2020 in which it was mentioned that either the product should be replaced or warranty of the product should be extended. The OP/company had accepted the fault on the part of the company and extended the warranty of the product for further period of 8 months vide their letter dated 05.08.2020.The same defect again arose on 09.08.2020 and complaint was lodged and the service centre accepted the fault and asked the complainant that now the product needs to be replaced as there was manufacturing defect in the refrigerator. Complainant was informed by the service centre Panchkula on 13.08.2020 that his case has been processed and the OP/company  has approved the replacement of the refrigerator but since the refrigerator of same model is not available this they will not replace the product but will instead give e-coupon of for the same. He was informed by the Repair Division, Panchkula that a e-coupon only for Rs.80655/- has been issued by the OP/company. The MRP of the product as shown on the website of the OP/company was Rs.1,19,990/-. If e-coupon is to be given then it should be given for the price at which refrigerator is available at the dealer or OP/company may get the product replaced from any dealer. The OP/company should either replace the same product to the complainant or the difference of the current price and purchase price be reimbursed to him. The complainant sent a legal notice dated 24.08.2020 to the OPs but the OPs did not paid any heed to genuine request of the complainant.  Due to the act and conduct of the OPs, the complainant has suffered financial loss, mental agony and harassment; hence, the present complaint.

2.               Upon notice OP No.1 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being false and frivolous; no cause of action; not come with clean hands and suppressed the material facts. On merits, OP No.1 stated that the refrigerator in question is having manufacturing defect. It is pertinent to mention here that the alleged defect cannot be determined on the simpliciter submissions of the complainant and need a proper analysis test report to confirm the same. It is also stated that it is the settled position of law that an expert opinion/cogent evidence are mandatory under Section 38(2)(c ) of CP Act,2019 to prove the allegations/averments made by complainant. He has miserably failed to prove the alleged manufacturing defect neither place on record any analysis test report for the perusal of this Commission. Further it is submitted that the OP on account of goodwill gesture, had offered refund coupons of the cost of refrigerator to complainant but the complainant to grab excess amount from OP/company, refused to receive refund coupons.  The services had been provided to complainant by OP/company on each and every occasion. The complainant with regard to complaint of the refrigerator approached to OP/company in her complaint on 13.12.2019, 27.06.2020 and 09.08.2020. In response to the complaint of the complainant, the engineer, of service center of OP/company visited the premises of complainant and checked the refrigerator and it was found that the PCB of the refrigerator needs replacement again and again. The engineer replaced the PCB of the Refrigerator and the said product started working fine. As the complainant requested for replacement/refund for her refrigerator the OP/company considered the case of complainant and for the sake of goodwill of OP/company and only on the discretionary rights of company, the OP/company accepted her request and the complainant signed a declaration letter submitted with OP/company whereby agreed for refund coupons and accordingly, the OP No.1 issued refund coupons equivalent to the cost of Refrigerator i.e. Rs.80,655/- but the complainant did not collected her refund coupons. Thereafter, the OP No.1 received legal notice in which the complainant demanded refund of Rs.1,19,990/-. It is submitted that the cost of Refrigerator is Rs.80,655/-.  Mere alleging that the dealer price of Refrigerator is of Rs.1,19,990/- is not sufficient to make the complainant eligible to claim the said dealer price. The said product has been purchased for Rs.80,655/-(after discount) but the complainant is claiming the dealer price of her refrigerator. The same fact has been duly apprised to the complainant via the reply to the legal notice of complainant and it has also been replied to provide replacement for the refrigerator with alternative model, but the complainant refused for same. So, there is no deficiency on the part of OP No.1 and prayed for dismissal of the present complaint.

                  Upon notice OPs No.2 & 3 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable being false and frivolous; no cause of action; misjoinder of parties; not come with clean hands and suppressed the material facts. On merits, OPs No.2 & 3 stated that OP No.2 is a seller of various electronic items of many manufacturers including Samsung sold at its stores. The stores of the OP No.2 cater to its customers with different requirements. Whenever a customer asks for or wants to buy or know about some device or product, the staff of the OP No.2 apprise them of the various features of the product to the customer, as per the literature of the product made available by the concerned manufacturer. Moreover, it the customers decide to buy a product then a demonstration of working of the product is given to the customers, whenever it is possible. Thus, the involvement of the OP No.2 is limited regarding sale of the product only. It is stated that the OP No.2 is only a Retailer and has no role to play in replacement or rectification of defects in Samsung Refrigerator. Thus, there is no deficiency in service on the part of the OPs No.2 & 3 and prayed for dismissal of the present complaint.

3.               Replication to the written statement of the OPs was filed by the complainant reiterating the contents of the complaint while controverting the contentions of the OPs.

4.               The learned counsel for the complainant has tendered his affidavit as Annexure C-A & C-B along with documents Annexure C-1 to C-3 in evidence and closed the evidence by making a separate statement. On the other hand, counsel for the OP No.1 tendered affidavit as Annexure R-1/A alongwith documents as Annexure R1/1 to R1/12 and closed the evidence. The counsel for the OPs No.2 & 3 tendered affidavit as Annexure R-2/A  and closed the evidence.

5.               We have heard the learned counsels for the complainant as well as OPs No.1 to 3 and have gone through the entire record available on the file including written arguments filed by the learned counsels for the complainant as well as OPs No.2 & 3, minutely and carefully.

6.            Admittedly, the OPs instead of replacing the defective refrigerator model no.RS74R5101SL has issued a service refund coupon (Annexure R1/8) to the complainant, for a sum of Rs.80,655/- in lieu of the said refrigerator. The complainant being not satisfied sent a legal notice dated 24.08.2020(Annexure C-3) claiming the replacement of the refrigerator or its market price. Vide reply Annexure R-1/9, it was stated by the OP No.1 that the service refund coupon amounting to Rs.80,655/- was given in lieu of the product cost. Feeling not satisfied, the present complaint has been filed seeking directions to OP No.1 to replace the refrigerator of the same model or in the alternative to reimburse the market price of the refrigerator in question at which the said model of the refrigerator is available in the market alongwith interest @12% to her. Apart from this, a sum of Rs.50,000/-and Rs.31,000/- has been claimed on account of physical harassment, mental agony and litigations charges respectively.

7.               The OP No.1 has contested the complaint, apart from merits, on the ground that there is no manufacturing defect in the product in question as there is no test report substantiating the same. In this regard, reliance has been placed on following case laws i.e. Sushila Automobiles Ltd. Vs. Dr. Birendra Narain & Ors. 3(2010) CPJ 130(NC) and Hero Moto Corp Ltd. Vs. Gaurav Panday & Anr. in first appeal no.235 of 2013 decided on 24.04.2015 by the Hon’ble State Commission, Uttarakhand.

8.               The above objection is rejected in view of the findings given by the technical person Sh.Santosh Kumar, vide his technical report dated Annexure R-1/6. The said technical person has categorically stated that the product in question requires replacement. It is not the case of the OP No.1 that the said technical report R-1/6 was vague or incorrect and thus, the complainant is entitled either to replacement of the product in question or its price.  On merits, it is contended that the issue of refund coupon (Annexure R-1/8) amounting to Rs.80,655/- is correct and legally valid as the complainant has paid a sum of Rs.80,228/- vide bill (Annexure C-1) for the product in question. Our attention has been drawn towards the clause C of Section 40 of CP, Act 2019 which is reproduced as under:

         (c ) To return  to the complainant  the price, or, as the case may be, the charges  paid by the complainant alongwith such interest on such price or charges as  may be decided.

9.               The aforementioned contentions raised by the learned counsel for the OP No.1 are acceptable to the Commission. As mentioned above in Para No.8 of this order the complainant is entitled to the replacement of the product in question. In case, the refrigerator in question is not available with the OP then the complainant is entitled to its price.

10.             Regarding the replacement of the product in question, the learned counsel for the OP No.1 stated that the product is not available with the OP No.1 but we find not even a single word either in the written statement or the supporting affidavit Annexure R-A or the reply (Annexure R-1/9) given by the OP No.1 in response to legal notice Annexure C-3 that the product is not available with it or that the product is out of stock. On the other hand, the complainant has categorically stated in his affidavit Annexure C-A, & C-B that the product is still available with the OP No.1. Moreover, the complainant has also tendered the copy of print out taken out from the website of OP No.1 which is available on record as Mark ‘A’ in support of his contention.

11.             The aforesaid factual position leaves no scope with us as to availability of the product in question with OP No.1. As per Mark ‘A’ the product is available for a sum of Rs.1,04,000/- with OP no.1. Therefore, we reject the contentions of the OP No.1 about the non- availability of the product in question with it. In case, we assume it that the product is not available with OP No.1 then in that eventuality the complainant is entitled to the payment of cost price of the product as is prevailing in the market on today. Therefore, in view of the discussion made above, we conclude that there has been lapse and deficiency on the part of the OP No.1 for not replacing the refrigerator in question to him or in the alternative its market price as is prevailing now-a-days. The present complaint is dismissed qua OPs No.2 & 3.

12.             As a sequel to above discussion, the present complaint is partly allowed with the following directions:-

1. The OP No.1 is directed to provide the same model i.e. no.RS74R5101SL of the refrigerator in lieu of the defective refrigerator to the complainant subject to return of the defective refrigerator by the complainant to OP No.1. It is made clear that the OP No.1 shall collect the defective refrigerator from the house of the complainant while delivering the new refrigerator.

 In case, the above model of the refrigerator is not available with OP No.1, then a sum of Rs.1,04,000/- be refunded to the complainant within a period of 30 days from the receipt of the copy of this order. 

2. To pay a lump sum amount of Rs.10,000/- to the complainant on account of mental agony, physical harassment and litigation charges.

 

13.             The OP No.1 shall comply with the order within a period of 30 days from the date of communication of copy of this order failing which the complainant shall be entitled to interest @9% on the awarded amount of Rs.104000/- in case of non-availability the model no.RS74R5101SL of the refrigerator with OP No.1. The complainant shall also be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OP No.1. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced:29.12.2021

 

      (Dr.Sushma Garg)       (Dr.Pawan Kumar Saini)         (Satpal)

              Member                       Member                   President

 

Note: Each and every page of this order has been duly signed by me.

                        

                                          Satpal                                                                                         

                                                President