State Consumer Disputes Redressal Commission
1. M/S Utility Trading Engineer vs Krishan Singh Barguzar on 1 April, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 43 of 2013 Date of Institution : 01.02.2013 Date of Decision : 01.04.2013 1. M/s Utility Trading Engineer, SCO No.311, Sector 40-D, Chandigarh, through its Proprietor/Owner/ Manager. 2. M/s P.E. Electronics Limited, through its Director/GM, 5th Floor, Corporate Centre, Opposite Hotel Vitpus, Andheri Kurla Road, Andheri East, Mumbai-59. 3. Climax India, Shop No.2212/12, Pipli Wala Town, Manimajra, Chandigarh, through its Manager. Appellants/Opposite Parties V e r s u s Krishan Singh Barguzar S/o Sh. Kalu Ram, # 493/1, Sector 15-A, Chandigarh. ....Respondent/complainant Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER.
Argued by: Sh. Nirmal Singh Jagdeva, Advocate for the appellants.
Sh.
Krishan Singla, Advocate for the respondent.
PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT This appeal is directed against the order dated 28.12.2012, rendered by the District Consumer Disputes Redressal Forum-I, U.T., Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint, filed by the complainant (now respondent) and directed the Opposite Parties (now appellants), as under:-
i) To replace the fully automatic washing machine of the complainant with a new one, with a fresh warranty or to refund a sum of Rs.33,500/- to the complainant alongwith interest @9% P.A. from the date of purchase till realization.
ii) To make the payment of Rs.10,000/- to the complainant towards compensation and litigation expenses.
The liability of the OPs shall be joint and several.
This order be complied with by OPs within one month from the date of receipt of its certified copy, failing which, OPs shall be liable to refund the awarded amount to the complainant along with interest @ 12% p.a. from the date of purchase of washing machine till realization of the amount.
2. The facts, in brief, are that, induced by various advertisements, issued by the Opposite Parties, the complainant purchased a fully automatic washing machine, from Opposite Party No.1, on 11.11.2011, for a sum of Rs.33,500/-
including VAT, vide invoice No.377 dated 11.11.2011 Annexure C-1. It was stated that, right from the very beginning, the said washing machine, started giving problems i.e. the clothes were not properly cleaned and there was non-exit of surf. The complainant made complaints, to the Opposite Parties, in this regard, on 06.02.2012, 21.02.2012, 21.04.2012 and in the month of May, 2012, but nothing was done, by their Engineers.
3. It was stated that one Sh. Narinder Kumar, Senior Engineer of Opposite Party No.3, visited the premises of the complainant, for checking the washing machine, in question, and told him that there was an inherent manufacturing defect , in the same (machine). He further told him that the only solution of the problem, was its total replacement or refund of the price thereof. The complainant, thus, approached the Senior Officials of the Opposite Parties, at Chandigarh, for replacement of the washing machine or refund of the price thereof. One Sh. Vijay Kumar, Senior Engineer of the Opposite Parties, behaved rudely with the complainant. He told that neither the machine shall be taken back nor the refund of the price thereof, would be given. It was further stated that the complainant asked the Engineer, who visited his premises for checking the washing machine, to give, in writing, that the machine was not working properly, whereupon, a report Annexure C-2 was received.
4. It was further stated that the representative of the Opposite Parties, misled the general public and the complainant, in particular, and, thus, succeeded in selling the defective machine to him. A legal notice dated 06.07.2012, Annexure C-3, was also served upon the Opposite Parties, to redress the grievance of the complainant, but to no avail. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, directing the Opposite Parties, to refund the amount of Rs.33,500/- i.e. the cost of the washing machine including VAT, or in the alternative, replace the same, with a new one, working in a perfect condition; pay compensation, in the sum of Rs.50,000/-, for mental agony and physical harassment; and cost of litigation, to the tune of Rs.21,000/-.
5. The Opposite Parties, in their joint written version, admitted the purchase of a fully automatic washing machine, by the complainant, from Opposite Party No.1, on 11.11.2011, for a sum of Rs.33,500/- including VAT, vide invoice No.377 dated 11.11.2011 Annexure C-1, which carried a warranty of one year. It was stated that all the complaints, made by the complainant, with regard to the problems, in the washing machine, were immediately attended to, by the Engineers of the Opposite Parties and the job cards, in that regard, are Annexures R-1 and R-2. It was further stated that the complaint, in respect of non-exit of surf, was also attended to, by the Engineers of the Opposite Parties, and the complainant was recommended/educated to use a particular non-foaming washing powder Surf Excel Matic while using the said automatic machine, for washing clothes. It was further stated that the problem, in the washing machine occurred due to the use of non- recommended surf, by the complainant, while washing the clothes in it. It was denied that Mr. Narinder Kumar, Senior Engineer of Opposite Party No.3, told the complainant that the said washing machine suffered from inherent manufacturing defects and that replacement of the same or refund of the price thereof, was the only solution to the problem, but, on the other hand, it was stated that Mr. Narinder Kumar, aforesaid, examined the washing machine and even clothes were washed, in the presence of the complainant, and no defects were detected during the demonstration of the same (machine). It was also denied that the complainant visited the office of the Opposite Parties, and met Mr. Vijay Kumar, their Senior Engineer who allegedly misbehaved with him. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.
6. The Parties led evidence, in support of their case.
7. After hearing the Counsel for the Parties, and, on going through the evidence, and record of the case, the District Forum, came to the conclusion, that the washing machine, purchased by the complainant, suffered from inherent manufacturing defects, as stated by Narinder Kumar, Senior Engineer of Opposite Party No.3, and, as such, he (complainant) was entitled to the refund of price thereof, alongwith interest.
8. Ultimately, the District Forum accepted the complaint, in the manner, referred to, in the opening para of the instant order.
9. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties.
10. We have heard the Counsel for the Parties, and, have gone through the evidence, and record of the case, carefully.
11. The Counsel for the appellants/Opposite Parties, submitted that, no doubt, the washing machine, in question, was purchased by the complainant, yet, it did not suffer from any inherent manufacturing defect. He further submitted that, no expert evidence was produced by the complainant, to prove that the washing machine, suffered from any inherent manufacturing defect. He further submitted that, as and when, the complaints were made, by the complainant, with regard to any problem, in the said washing machine, the same were attended to, by the Opposite Parties. He further submitted that Narinder Kumar, Senior Engineer of Opposite Party No.3, never told the complainant that the washing machine suffered from inherent manufacturing defects and the only solution was its replacement or seek refund of the price thereof. He further submitted that the District Forum was wrong, in coming to the conclusion, that the automatic washing machine, purchased by the complainant, suffered from inherent manufacturing defects. He further submitted that the order of the District Forum, being illegal, is liable to be set aside.
12. On the other hand, the Counsel for the respondent/complainant, submitted that the factum that the Senior Engineer, namely Narinder Kumar, visited the premises of the complainant, for attending to the complaint, made by him (complainant), was admitted by the Opposite Parties. He further submitted that, no doubt, no written report was given by Narinder Kumar, Senior Engineer, aforesaid, that the said washing machine suffered from inherent manufacturing defects. He further submitted that it was asserted by the complainant, in the complaint, as also supported by him, by way of his affidavit that Narinder Kumar, Senior Engineer, told him that the machine suffered from inherent manufacturing defects. He further submitted that, no affidavit, in rebuttal, of Narinder Kumar, Senior Engineer, was produced by the Opposite Parties, and, as such, the District Forum was right, in coming to the conclusion, that whatsoever, the complainant stated in the complaint, with regard to the conversation between him, and Narinder Kumar, Senior Engineer, duly supported by his (complainants) affidavit, was sufficient to prove that the washing machine suffered from inherent manufacturing defects. He further submitted that, in such circumstances, there was no necessity of production of expert evidence, to prove that the washing machine suffered from inherent manufacturing defects. He further submitted that the order of the District Forum, being legal and valid is liable to be upheld.
13. The purchase of a fully automatic washing machine, vide invoice, copy whereof is Annexure C-1, in the sum of Rs.33,500/- inclusive of VAT, from Opposite Party No.1, by the complainant, was admitted. Annexure R-1 is a copy of the job card, dated 21.02.2012. The complaint made by the complainant, mentioned in this job card, was with regard to the problem of washing quality. Remarks were recorded by the Engineer of Opposite Party No.3, on the said job card that the consumer was educated to use correct surf. It was also recorded on the said job card by the Engineer, that the washing machine was made O.K. The Engineer of Opposite Party No.3, who attended the complaint, signed the same. It is further evident, from copy of the said job card, that the complainant refused to sign the same. Annexure R-2, is another copy of the job card dated 21.04.2012, to the effect, that Senior Engineer of Opposite Party No.3, namely Narinder Kumar, went to the premises of the complainant. It is evident, from this job card that washing was done, in front of the customer/complainant. Result was found to be O.K. Clothes were cleaned. The customer was not satisfied, and he was educated to use correct surf. This document was also signed by the Senior Engineer, namely Narinder Kumar, but the complainant refused to sign the same. There is no mention, on any of these job cards, that the washing machine, in question, suffered from inherent manufacturing defects. Had Narinder Kumar, Senior Engineer of Opposite Party No.3, told the complainant, that the washing machine suffered from inherent manufacturing defects, he would have certainly recorded the same, on the job card Annexure R-2. Annexure C-2 is the letter dated 23.04.2012, written to the complainant, by an authorized signatory of M/s Climax India, Shop No.2212/12, Pipli Wala Town, Manimajra, Chandigarh- Opposite Party No.3, the operative part of whereof, reads as under:-
This is with regard to your complaint No.ECHD2104120022 dated 21.04.2012 with regard to your Model No.EWF1080 bearing Sr. No.650611271513000126.
On receipt of the above said call our Sr. Engineer Mr. Narinder Kumar visited your premises on dated 21.04.2012. We are pleased to confirm you that there is no technical problem with the WM.
In case of any further clarification please feel free to contact us at our customer care number 18602001212.
We thank you very much for using our product and assure your goodself of our best services in future.
14. From the afore-extracted operative part of the letter dated 23.04.2012, it is also evident, that no technical problem, was found, in the washing machine. For the purpose of proving that the washing machine suffered from inherent manufacturing defects, it was required of the complainant, to produce expert evidence. In the absence of production of expert evidence, it could not be, by any stretch of imagination, said that the washing machine suffered from inherent manufacturing defects. Why the complainant did not produce the expert evidence, is a fact, which remained shrouded under mystery. No doubt, in the complaint, it was stated by the complainant, that Narinder Kumar, aforesaid, came to his premises, to attend to his complaint, with regard to the washing machine and told that the same (washing machine) was suffering from inherent manufacturing defects. He also supported this assertion, in his affidavit, by way of leading evidence. However, such bald statement of the complainant, did not, in any way, prove that the washing machine suffered from inherent manufacturing defects. Had Narinder Kumar, aforesaid, given something, in writing, to the complainant, that the washing machine suffered from inherent manufacturing defects, and he (complainant) had relied upon the same and supported the same, by way of his affidavit, it would have been said that, in the absence of the affidavit of Narinder Kumar, in rebuttal, the case of the complainant, to the effect, that the washing machine suffered from inherent manufacturing defects, stood proved. The District Forum, was, thus, wrong, in coming to the conclusion, that since no affidavit of Narinder Kumar, Senior Engineer of Opposite Party No.3, to rebut the assertion, made by the complainant, in his complaint, that he told him that the washing machine suffered from inherent manufacturing defect, was submitted by the Opposite Parties, such assertion of the complainant stood proved. The findings of the District Forum, to the effect, that the washing machine suffered from inherent manufacturing defects, being not based on any cogent and convincing expert evidence, being perverse are reversed.
15. Undisputedly, a warranty of one year, from the date of purchase of the washing machine, was given, to the complainant. The washing machine, as stated above, was purchased on 11.11.2011. It was within the warranty period, when it started giving problems. It was during the warranty period that the complaints were made by the complainant, to the Opposite Parties, with regard to the problems, which cropped up in the washing machine. It is, thus, evident, that there may be some defect, in the washing machine, which could very well be repaired. Even if, there is some defective part, in the washing machine, that can be replaced, as per the terms and conditions of warranty. Under these circumstances, certainly, a direction can be given to the Opposite Parties, to repair the washing machine, in question, or to replace the defective parts, thereof, so as to make it in perfect working condition, without charging anything, from the complainant.
16. The next question, that falls, for consideration, is, as to whether, the complainant is entitled to compensation, on account of mental agony and physical harassment or not? The complainant purchased the washing machine, in November 2011, with a view to ensure that the clothes could be washed therein, in a proper manner. Instead of giving proper service, the machine started giving problems, as a result whereof, the complainant had made complaints, which were attended to by the Engineers of the Opposite Parties, from time to time, which is evident from Annexures R-1 and R-2, copies of the job cards. The complainant had to suffer a lot of mental agony and physical harassment, on account of the problems, which cropped up, in the washing machine. He was, thus, rightly granted compensation, to the tune of Rs.10,000/-, including the cost of litigation, by the District Forum. The findings of the District Forum, to this effect, being correct are affirmed.
17. No other point, was urged, by the Counsel for the Parties.
18. For the reasons recorded above, the appeal is partly accepted, with no order as to costs. The order of the District Forum is modified, in the following manner:
i. The appellants/Opposite Parties are directed to effect repairs, in the washing machine of the respondent/complainant and replace the defective parts, if any, of the same, so as to make it in perfect working condition, without charging anything, from him, within one month, from the date of receipt of a certified copy of the order.
ii. The direction given by the District Forum, for the replacement of washing machine or refund of the price thereof, is set aside.
iii. The direction given by the District Forum, with regard to payment of compensation, including cost of litigation, to the tune of Rs.10,000/-, is upheld.
iv. The appellants/Opposite Parties, shall pay the amount of compensation aforesaid, mentioned in Clause no.(iii) above, within a period of one month, from the date of receipt of a certified copy of the order, failing which, they shall be liable to pay the same, alongwith interest @12% P.A., from the date of default, till realization, besides compliance of direction given in Clause no.(i), of paragraph 17 above.
19. Certified copies of this order, be sent to the parties, free of charge.
20. The file be consigned to Record Room, after completion Pronounced.
April 1, 2013 Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Rg