State Consumer Disputes Redressal Commission
Jugnu Dhillon vs Reliance Digital Retail Ltd. on 11 February, 2014
IN THE STATE COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Decision : 11.02.2014 First Appeal No.359/2012 (Arising out of the order dated 22.02.2012 passed by the District Consumer Dispute Redressal Forum (East), Saini Enclave, Delhi in Complaint Case No.570/2010) Jugnu Dhillon R/o C-1058 Sushant Lok-I Gurgaon-122002 Appellant VERSUS 1. Reliance Digital Retail Ltd. S-218, Ambience Mall Ambience Island Delhi Jaipur National Highway-8 Gurgaon-122002 Also at: Reliance Digital Retail Ltd. Fun City Mall Ist Floor, Shahadra, Laxmi Nagar, Delhi-110032 2. Hitachi India Pvt. Ltd. Units 304-306, 3rd Floor ABW Elegance Tower Jasola District Centre New Delhi-110025 3. Hitachi Home & Life Solutions (India) Ltd. A-15, Mohan Co-operative Industrial Estate Mathura Road New Delhi ..Respondents CORAM S.A.Siddiqui, Member (Judicial) S.C.Jain, Member
1. Whether reporters of local newspaper be allowed to see the judgment?
2. To be referred to the reporter or not?
S.C.Jain, Member Judgment
1) This appeal has been filed by the appellant against the order dt. 22.02.2012 passed in Complaint Case No. 570/10 by District Consumer Disputes Redressal Forum (East) Saini Enclave, Delhi-92.
2) Facts of the case are that on 25.02.2010 complainant/appellant purchased from respondent-1/OP-1 two air conditioners manufactured by respondent-2/OP-2 for a sum of Rs. 25,999/- each. The appellant/complainant alleged that the ACs were defective from the very beginning and they made several complaints to the respondents/OPs as well as to the service centre of OPs i.e. respondent No.3-Hitachi Homes & Life Solution India Ltd. As the ACs were purchased in the Month of February and were also installed at the residence of the appellant/complainant in that very month, so they were seldom used after the installation as the season at that time was a winter season and summer was not at its peak but when during the month of May, when the summer started and they starting using the ACs, one of the ACs out of the two did not work and the complainant lodged a complaint on the help line Number of the OPs. The appellant/complainant was given the complaint No. 8000597083. Nobody from the OPs contacted the appellant/complainant for 16 days and it was only on 21.05.2010 that the ACs were taken by OP-1/respondent-1 representative Sh. Dhananjay for repair and at that time Sh. Dhananjay ask for a warranty card/bill which was not available on that day and the same was provided to OP-1/respondent-1 on 25.05.2010.
3) On 02.06.2010 Sh. Aman Verma from respondent-1/OP-1 alongwith Sh. Vinay Kapil of Hitachi visited the appellant/complainant and assured her that as the compressor of the AC is defective, they shall refunded the cost of the AC as they do not have other AC of the same Model because the AC purchased by them is of very old model. But inspite of several calls to the respondents/OPs, they did not refunded the amount and simply informed the appellant/complainant that the defect in the AC has been rectified and they shall install the repaired AC at her residence.
4) The appellant/complainant submitted in its complaint that the OPs/respondents agreed to replace the AC with the superior model as the AC of the same model was not available with them and also told to make the payment of the difference amount of the higher model. It was further mentioned by the appellant/complainant that the stabilizers supplied by the OPs/respondent were also defective and when no positive response was received by her from the OPs, she issued a legal notice to OP-1 also but the reply received was not satisfactory and thereafter she filed the complaint before the District Forum praying therein for refund of cost of ACs, Stabilizer, installation charges, cost of legal notice and Rs. 10,00,000/- towards compensation for mental agony and harassment total amounting to Rs. 10,71,715/-.
5) Notices were severed to the OPs by the District Forum but inspite of notice OP-2/respondent-2 did not contested the case nor filed any written statement and the case was proceeded with ex-parte against OP-2. OP-1 contested the case and submitted before the District Forum that there is no deficiency on their part and as soon as they received the call from the complainant/appellant they attended the same and the defect in the AC was rectified and they went to the house of the complainant/appellant to install the AC but the complainant/appellant refused to get the repaired AC installed and asked for refund of the amount or the replacement of the AC with new one.
OP, further stated that on 02.06.2010 their representative Sh. Aman Verma alongwith Sh. Vinay Kapil of Hitachi India Pvt. Ltd. again visited the house of the complainant/appellant and offered to demonstrate and install the AC and to satisfy the complainant. However, they were not allowed by the complainant/appellant to install the said product.
6) OP-1/respondent-1 further submitted and argued that under the terms of warranty the complainant/appellant is entitled only for the removal of the defects/ change of the defective parts and complainant/respondent cannot claim for the replacement or the refund of the amount, until and unless it is proved by some expert opinion that the AC is having some manufacturing defect and further pleaded that at no point of time they agreed for the refund of the amount.
7) After hearing both the parties the District Forum came to the conclusion that as per the terms and conditions of the warranty the OPs are only liable for the rectification of the defect or replacement of the defective parts and the complainant cannot claim the refund of the product. And further observed that it is only the complainant/respondent who refused the installation of the repaired AC and further observed that when the complainant was directed to furnish warranty documents in respect of the AC so that the liability of the OPs could be ascertained, complainant failed to furnish the warranty documents for perusal and further more complainant failed to furnish any job sheet or expert opinion to substantiate her claim that the AC in question suffered from any manufacturing defect warranting its replacement or refund of the cost and held that there is no deficiency on the part of the OPs/respondents and dismissed the complaint.
8) That is what brought the complainant/appellant in appeal before this Commission.
9) The appellant/complainant took the ground in the appeal that the District Forum wrongly observed that there is no warranty document on record and failed to appreciate that respondent-1 had filed the warranty card themselves alongwith its written statement/version filed before the District Forum and this finding of the District Forum is merely on conjectures and surmises and has no legs to stand upon and as the respondent-1/OP-1 themselves had filed the warranty card so there was no dispute as far as the warranty of the goods are concerned and the observations of the Ld. District Forum are totally erroneous and uncalled for.
10) The appellant/complainant further stated that the District Forum also failed in appreciating the fact that there was a manufacturing defect in the AC sold by the respondents which is reflected from the fact that within a span of only two months the AC did not work properly and were declared defective by the respondent-1/OP-1 themselves which is corroborated by the fact that the respondent-1 took the AC to their workshop for repair, otherwise for any type of minor defect they would have rectified the same at the site in her home itself and further submitted that the question of getting an expert opinion was not possible in the circumstances when the AC was with the respondent-1/OP-1.
11) From the submissions made by the appellant and on perusing the record and correspondence between the appellant and respondent it is clear from the e-mail of respondent-1 dt. 25.05.2010 forwarded to the appellant that respondents specifically admitted that there is a compressor failure in their newly purchased AC and regretted such failure within such a short tenure and failure of the compressor of the AC within 2-3 Months of its purchase itself amounts to manufacturing defect and principle of res ipsa loquitur should have been applied by the Ld. District Forum and Honble National Commission in the case titled Scooter India Ltd. and Anr. V/s Madha Banada Mohanty and Ors. II (2005) CPJ 136 (NC) had clearly held that it is not always necessary for the consumer to get expert testomy.
12) The deficiency on the part of the respondents/OPs is also reflected from the fact that the appellant/complainant registered its complaint on 05.05.2010, but her complaint was attended after 16 days that is only on 21.05.2010 and it is also clear from the letter dt. 03.06.2010 written by the complainant to Reliance Digital Retail Ltd. Gurgaon that their representative Sh. Aman Verma had agreed to refund the amount of the AC with other costs. From the Mail of the complainant dt. 27.05.2010, it is also clear that the complainant had written them regarding her tele talk with Mr. Nave from Reliance (Noida) who informed her that they do not have another piece to replace this one since it is an old model. Honble Supreme Court in the case titled Hindustan Motors Ltd. and Anr. V/s N. Shiva Kumar and Anr., (2000) 10 Supreme Court Cases 654 had held that when any company had stopped manufacturing the particular model, under those circumstances there is no other way except to refund of the money alongwith interest, compensation and cost.
13) It is also true that the children of the appellant/complainant suffered due to non working of the AC in the peak summer season for which appellant is also entitled for compensation on the aspect of consumer factor as described by Honble National Commission in the case Bombay Brazzerie Vs Moolchand Aggarwal and Anr.
14) Taking overall view of the matter we are of the opinion that in the above mentioned circumstances where the AC have become defective immediately after purchase (In this case because for three months AC remained un-operational due to winter season) in that circumstances the agony of the consumer cannot be imagined when the consumer had purchased something for making its life better and instead of making her and family members life comfortable the consumer is put into much harassment and mental agony.
15) This Commission on number of occasions have reiterated that in the event when a product is found to be defective at the very beginning it is always better to order for the refund of the amount because replacement of the product will never satisfied the consumer because the consumer had lost faith in that companys product and if the repaired product is again returned to the consumer and if develops the defect again then the consumer will be put to much larger harassment because he had to fight another bond of litigation which will be highly torturous.
16) Keeping in view all the facts and circumstances of the case and above discussion we set aside the order of the District Forum passed on 22.02.2012 in Complaint Case No. 570/10 and allow the appeal.
17) As the AC in question is already with respondent-1/OP-1 we orders the respondents/OPs to pay total amount of Rs. 25,000/- to the appellant/complainant which will include cost of the AC as well as compensation for mental agony and harassment alongwith cost of litigation.
18) These orders are joint as well as several against respondent-1 & 2/OP-1 & 2.
19) The above orders be complied with by the respondents/OPs within 30 days from the receipt of these orders otherwise the appellant/complainant shall be at liberty to approach District Forum under Section 25/27 of Consumer Protection Act.
20) Copy of the order be made available to the parties free of cost as per law and thereafter file be consigned to record room.
21) FDR if any deposited by the appellant shall be released as per rule.
Announced on 11th day of February 2014.
(S.A.Siddiqui) Member (Judicial) (S.C.Jain) Member fatima