State Consumer Disputes Redressal Commission
Dilip Timblo vs The Manager, Lg Electronics India Pvt. ... on 18 August, 2017
1
BEFORE THE GOA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION,
PANAJI - GOA
F.A. No. 86/2016
Mr. Dilip Timblo,
Zaiwanti,
Cupangal, Gogol,
Margao Goa. ... Appellant
(Original Complainant)
v/s
1. The Manager,
LG Electronics India Pvt. Ltd.,
A Wing, 3rd Floor, D3,
District Center Saket,
New Delhi, 110 017.
2. Raju Gurunath Mangalwade,
LG Electronics Pvt. Ltd., 1st Floor,
Above Baellad & Co.,
Near Bannigida Bus Stop,
Gokul Road, Hubli.
3. Kohinoor Televedeo Pvt. Ltd.,
1-182, Haji Habib Building,
Opp. Fire Brigade,
Dr. B. A. Road, Dadar (E), Mumbai ... Respondent
(Original Opposite Parties)
Shri. N. G. Kamat, Lr. Counsel for the Appellant.
Shri. R. Chodankar, Lr. Counsel for the Respondents No. 1 and 2.
None present for Respondent No. 3.
Coram: Shri. Justice U. V. Bakre, President
Shri. Jagdish Prabhudessai, Member
Dated: 18/08/2017
ORDER
[Per Justice Shri. U. V. Bakre, President] This appeal is directed against the order dated 31/10/2016 passed by the Consumer Disputes Redressal Forum, South Goa (the "Forum", for short) in Complaint No. 13/2015. The Appellant was 2 the Complainant whereas Respondents were the Opposite Parties (OPs) before the Forum. Parties shall hereinafter be referred to as per their status in the said Complaint.
2. The OP No. 1 is the manufacturer of the consumer goods like refrigerators, mobile phones, television, Air Conditioners and other household products. The OP No. 2 is the Branch Manager of the authorized service centre of the OP No. 1 and the OP No. 3 is the dealer of the OP No. 1. The Complainant had purchased a refrigerator of Model Code FFM237AGNN with Item Description LG REF FF GC-M237AGNN, bearing chassis no. IH 508CG from the OP No. 3 and the same was delivered at the residence of the Complainant at Margao on 18/03/2012. The refrigerator was covered by warranty issued by the OP No. 1 which warranted that the said refrigerator was free from defects in material or workmanship under normal domestic use for a period commencing from the date of purchase and ending on completion of one year whereas the compressor had warranty of four years from the date of purchase of the said refrigerator. The Complainant had filed the said Complaint praying therein to direct the OPs to refund to him the cost of the said refrigerator amounting to Rs. 95,000/- along with interest calculated at the rate of 12% p.a. from 11/05/2014 till actual realization and jointly and severally to pay to him an amount of Rs. 50,000/- as compensation for mental agony and physical harassment which the Complainant had to undergo due to the non-functioning of the refrigerator and the costs of the Complaint.
3. The case of the Complainant was as follows:
The said refrigerator stopped working on 11/05/2014 and the Complainant filed Complaint No. RNA 140512008879 with LG Goa. On 20/05/2014 a technician came to the residence of the Complainant and after checking the same informed that the compressor had developed some problems and needed to be 3 changed. However, there was a long delay in ordering for a new compressor and finally on 11/07/2014 the refrigerator was fitted with a new compressor and PCB and gas was filled in and the said refrigerator was sent back to his residence on 12/07/2014. The Complainant was given a bill for Rs. 5847/- for the said servicing/repairs and the Complainant informed the service centre that he would pay the bill only after satisfying that the refrigerator was in a proper working condition. On 14/07/2014 the said refrigerator again stopped working and the Complainant informed the service centre/technician about the same but his complaint was not attended too. The Complainant sent an email on 04/08/2014 to [email protected] and www.lg.com/india informing them about the delays in attending to his complaint and poor follow ups from the service centre. The Complainant received a reply from LG service stating that his complaint was forwarded to the concerned area service manager namely Mr. Vasu and the Complainant was asked to contact him for further assistance. The Complainant then contacted Mr. Vasu on the given mobile number and Mr. Vasu directed him to send the refrigerator once again to the service centre to which he protested since the loading and transporting of the same would cost Rs. 12,000/-, based on the earlier bill. The Complainant requested Mr. Vasu to send a technician to the residence to check the refrigerator so that thereafter if required, he could send the refrigerator to the service centre. However, Mr. Vasu did not send any technician to the residence. Another email dated 08/09/2014 was sent to the LG service centre which was replied on the same day asking him to grant some more time to resolve the issue and this time gave mobile number of one Mr. Raju Gurunath Mangalwade, Branch Manager (Service), the OP No. 2. The Complainant then spoke to the OP No. 2 who assured that he would sent a technician to the residence. However no technician came. The refrigerator is lying idle and is not functioning till the date of filing of the Complaint. On 02/02/2015 the Complainant sent legal notices, 4 through advocate, to the OPs which notices were received by them. However no reply was sent. The refrigerator has not been repaired and lies broken down for the past nearly 9 months. The non- working and breaking down of the refrigerator can only be attributed to the manufacturing defects and service deficiencies. The Complainant was constrained to purchase a new refrigerator of a different brand for a consideration of Rs. 65,000/-. The Complainant had to undergo lot of physical harassments and mental agony since the refrigerator was not working. Hence the Complaint.
4. The Complainant relied upon the copies of the bill for purchase of the refrigerator, warranty, delivery challans, bill for the amount of Rs. 5847/-, emails and legal notice.
5. The OPs No 1 and 2 filed their written version thereby denying the case of the Complainant which was inconsistent with their case. Case of the OPs No. 1 and 2 was as under:-
Soon after receiving complaint from the Complainant, the OP No. 1 attended to the same and rectified the said refrigerator. A bill for Rs. 5847/- was issued to the Complainant but he has not paid the same. On receiving complaint from the Complainant on 14/07/2014, the Complainant was advised to bring the refrigerator to the service centre so that it could be thoroughly checked but the Complainant refused to do so. Hence the refrigerator could not be repaired. The Complainant used the said refrigerator for more than 2 years from the date of purchase without any complaint. It is the policy of the OP No. 1 that if after completion of one year from the date of purchase, the refrigerator requires thorough check up, then the purchaser of the same should bring the same to the service centre, at his own cost and consequences. The OPs No. 1 and 2 are still ready and willing to repair the said refrigerator but since the Complainant is not bringing the same to the service centre, the repair work cannot be carried out.5
6. The Complainant filed his affidavit-in-evidence. Besides stating the facts as averred in the Complaint, the Complainant, in his affidavit added that a vial of XGEVA 120 injection which was stored in the refrigerator got spoilt because it had to be stored at 2 to 8˚ C in the refrigerator and the MRP of the same is Rs. 28,787/-. The OPs No. 1 and 2 filed the affidavit-in-evidence of their authorized Officer, Shri Rahul Jain. In addition to incorporating the statements made in the written version, the OPs, in the said affidavit, denied the facts alleged by the Complainant regarding a vial of XGEVA 120. The Complainant and the OPs No. 1 and 2 filed written arguments before the Forum and also their Lr. Counsel argued orally.
7. Vide the impugned order, the Forum observed that there is no dispute that the refrigerator stopped working and the OPs attended to the same through their service centre situated at Margao and the compressor was changed and the refrigerator was returned to the Complainant. The Forum has further observed that again the refrigerator stopped working and the Complainant requested the OPs to depute their technician at the residence of the Complainant to investigate the reason as to why the refrigerator had stopped working but the OPs insisted upon the Complainant to bring the refrigerator to the service centre in order to make thorough investigation. Thus, according to the Forum, the dispute centered around whether the OPs should send the technician at the residence of the Complainant to ascertain upon inspection whether the refrigerator was to be taken to the service centre or whether the Complainant had to take the refrigerator at the service centre without the technician checking it at residence. According to the Forum, the demand made by the OPs that the refrigerator should be taken to the service centre without the same being checked by the technician at the residence of the Complainant implies that the OPs are conscious of the fault of the refrigerator and that the same requires the refrigerator to be brought to the service centre which by 6 itself means that the defect in the refrigerator is within the knowledge of the OPs. The Forum, however, held that since the refrigerator gave trouble free service to the Complainant for the last two years, the Complainant cannot claim that the refrigerator suffered from manufacturing defect. The Forum partly allowed the Complaint and directed the OPs No. 1 and 2 to depute their qualified technician to the residence of the Complainant and inspect the said refrigerator and ascertain the fault and inform the Complainant about the nature of the fault. The Forum further directed that if the expert cannot ascertain the fault or in the event the said technician is of the opinion that the fault cannot be rectified at the residence of the Complainant, the said technician should give in writing to the Complainant that the said refrigerator is required to be taken to the service centre for ascertaining the fault and repairing the same and thereafter the Complainant shall take the refrigerator to the service centre of the OPs and the OPs shall get the same repaired and issue a certificate of fitness of the said refrigerator after the same is repaired and put in perfect condition on the terms and conditions set out in the warrantee. The Forum directed the OPs to pay Rs. 10,000/- to the Complainant towards costs of the Complaint. The OPs have not challenged the order. The Complainant is aggrieved by the above order and has filed this appeal.
8. Records and proceedings of the Complaint No. 13/2015 were called for. Mr. Kamat, Lr. Counsel argued on behalf of the Complainant whereas Mr. Chodankar, Lr. Counsel argued on behalf of the OPs No. 1 and 2. We have gone through the entire material on record.
9. It was contended by Mr. Kamat, Lr. Counsel for the Complainant that the Forum has not at all considered the factum of loss of Rs. 28,787/- towards the vial of injectable medicine which was spoilt due to the defect in the refrigerator. There is neither any pleading nor prayer in the Complaint regarding the said loss. The 7 Complaint was filed on 10/03/2015. There was no averment about such a loss. Thereafter on 22/06/2015, the Complainant had filed an application for amendment of the Complaint, which application was allowed and voluminous amendment was carried out to the Complaint. However, even in this amendment application, the Complainant did not mention about the said loss. The OPs had no opportunity to defend themselves against the said alleged loss. Therefore, the statement about the said loss made in the affidavit-in- evidence without pleading in the Complaint was rightly not considered by the Forum and the same cannot also be considered now in this appeal.
10. It was further contended by the Lr. Counsel for the Complainant that the refrigerator was inherently defective and on account of length of delay and inaction the Complainant was forced to purchase another refrigerator and hence the reliefs as prayed for have to be granted. There is no evidence of any expert witness saying that the said refrigerator has manufacturing defect/s. Indisputably, the said refrigerator was purchased by the Complainant on 17/03/2012 and it stopped working on 11/05/2014. Thus, the said refrigerator gave trouble free service to the Complainant for more than two years. The said refrigerator, according to the Complainant himself, had warrantee of being free from defects in material or workmanship under normal domestic use for a period of one year from the date of purchase. Hence, the warrantee for the said refrigerator was over, as on the date when it stopped working. Much belatedly, after both the parties had filed written arguments and Lr. Counsel were partly heard, the Complainant produced a certificate dated 13/02/2016, issued by Acme Refrigeration Industries. However, the same cannot be looked into since the same is illegible and no affidavit of the maker of the same has been filed. There was no opportunity to the OPs to deny the said certificate and put up their case against the same. Hence the 8 Complainant has not proved that there is/are inherent manufacturing defect/s in the said refrigerator. Merely because the Complainant says that he was constrained to purchase a new refrigerator for a consideration of Rs. 65,000/-, that does not mean that he is entitled to refund of the price of the refrigerator supplied by the OP No. 3. The relief of refund of the cost of the said refrigerator amounting to Rs. 95,000/- along with interest as prayed by the Complainant has been rightly refused by the Forum and the Complainant is not entitled to such a relief.
11. It has been held by the Forum that the said refrigerator stopped working for the first time on 11/05/2014 and the OPs attended to the same through their service centre at Margao and the compressor was changed and the refrigerator was returned to the Complainant. The Forum has further held that the said refrigerator had stopped working again and the Complainant had requested the OPs to depute their technician to investigate the reason for not working but the OPs insisted upon the Complainant to bring the refrigerator to the service centre. The above findings have become final since they are not challenged by the OPs. The refrigerator had stopped working for the first time on 11/05/2014 but the OPs changed the compressor after two months in spite of a complaint No. RNA 140512008879 made by the Complainant with LG, Goa and delivered the refrigerator to the Complainant on 12/07/2014. In fact as per the condition in the warrantee, the company had to make every effort to carry out repairs at the earliest. Immediately after two days i.e. on 14/07/2014, the refrigerator stopped working again. The Complainant need not therefore pay the charges of Rs. 5847/- to the service centre unless it is known as to why the refrigerator stopped working within two days and that the PCB for which the Complainant was charged was still good. No doubt, the Complainant has not produced any evidence to prove that for the first time when he took the refrigerator at the service centre, he had 9 to spend Rs. 12,000/-. However, it can certainly be said that the Complainant had to spend certain amount to take the refrigerator at the service centre. The question is why the Complainant should again spend time and money to take the refrigerator to the service centre when the refrigerator stopped working within two days of repairs carried out by the service centre. The OPs have not shown any clause in the warrantee or any agreement to the effect that the technician will not come to the place where the refrigerator is kept or that the purchaser will have to take the refrigerator to the service centre in case it stops working. The Complainant had requested the representative of the OPs to send a technician to his residence only to check the refrigerator so that thereafter if required, he could send the refrigerator to the service centre. This was a fair request since the refrigerator had stopped working within two days of the repairs carried out by the service centre. The act of the OPs No. 1 and 2 in insisting upon the Complainant to bring the refrigerator to the service centre without even making a preliminary check up at the residence of the Complainant was totally unjustified and to that extent the OPs No. 1 and 2 were guilty of deficiency in service. The Complainant himself, as averred in paragraph 14 of the Complaint, wanted the technician to come to his residence and check the refrigerator so that if required, he could send the refrigerator to the service centre. The OPs No. 1 and 2 have stated in the written version that they are ready and willing to repair the said refrigerator. Therefore the Forum is not at fault in giving direction to the OPs in the manner as given. However, the question of giving any further relief to the Complainant of refund of the cost of the refrigerator or awarding further compensation does not arise.
1012. In the result there is no merit in the appeal and hence the same is dismissed with no order as to costs.
[Shri. Jagdish Prabhudessai] [Justice Shri. U. V. Bakre]
Member President
sp/-