This matter is coming before us for final hearing in the presence of Sri G.Stalin Babu, Advocate for the complainant and Sri A.Chenchaiah, Advocate for the opposite party No.1 and opposite party No.2 remained absent and having stood over for consideration till this day, this Forum passed the following:
ORDER (By Sri Sk.Mohd.Ismail, M.A., LL.B.., President)
1. The complainant filed this complaint against the opposite parties 1 and 2 under section 12 of Consumer Protection Act, to direct the opposite parties to replace a new product in place of old “split air-conditioner “ invoice No.2573 dated 27-05-2011, W12690-1.5 Ton Chrom III Coral Red (N) or refund of invoice amount for ‘split Air Conditioner’ Invoice No.2573 dated 27-05-2011, W12690-1.5 Ton Chrom III Coral Red (N) Rs.23,581/-, to direct the opposite parties to pay compensation for the conveyance charges of Rs.5,000/- and Rs.15,000/- towards mental agony due to sufferance and grant such other relief and submits to allow the complaint with costs.
2. The brief averments of the complaint are as follows:
The complainant submits that opposite party No.1 is dealer show room and opposite party No.2 is manufacturing company. On the opposite parties attractive publicity through visible representations, huge hoardings, and quality promises and through advertisements in News papers and T.V.Channels, complainant approached opposite party No.1 at Nellore on 27-05-2011 and purchased whirlpool company make ‘Split Air conditioner’ under invoice No.2573 dated 27-05-2011, W12690-1.5 Ton Chrom III Coral Red (N) along W-Stabilizer DMC-LX-1740V for Rs.27,001/- with 5 years warranty and it commences on 27-05-2011 and warranty ends on 26-05-2011 and that the opposite party No.1 sold defective product to the complainant since from the purchase of the said product, the product have been causing troubles in every summer season, which is essential period of usage. On 22-05-2016, the product failed to function completely. Immediately, complainant approached opposite party dealer show room at Nellore on 22-05-2016 for repair and on that opposite party No.1 issued mobile phone number 9440216448 belongs to one technician, Vamsi for reporting of complaint. Complainant tried many times to that number but the above number not functioning and not responding.
3. The complainant further submits that on 25-05-2016 and 26-05-216 complainant approached opposite party No.1 show room continuously for rectification of problem but opposite party No.1 issued toll free number 18601804558 to the complainant and on that complainant contacted to that Toll Free Number on 26-05-2016 and receive complaint reference No.GR05166009578 and that in response to the complaint reference No.GR05166009578, on 28-05-2016, one technician came and inspected the A.C. and finally he declared that the compressor to the said product failed and further he collected Rs.500/- and issued estimation bill in the name of TANVI Enterprises dated 28-05-2016. Thereafter, complainant approached opposite party No.1 for remedy but they confirm that the said product will not function. Basing on the warranty terms & conditions, complainant demanded opposite party No.1 for replacement of product in place of above defective product but opposite party vehemently refused to answer and more over they confirmed that the warranty period already lapsed on 25-05-2016 instead of 26-05-2016. It is an act of unfair trade practice and deceptive trade practice and that complainant sent notice dated 21-06-2016 to both the opposite parties through his counsel email.I.D. on 21-06-2016 and opposite parties received the said notice and opposite party No.2 acknowledged the same on 22-06-2016. On 23-06-2016, the opposite party No.1 through their email directed complainant ‘cal to Mr.Raghu Whirlpool service in charge for Nellore his no:9246201015 regarding complaint’ and on the directions of the opposite party No.1, complaint contacted with said service in-charge but opposite party No.2 declared that he do not know the subject matter and escaped from the liability and that both the opposite parties 1 and 2 failed to provide service to the complainant and opposite parties not responded for the grievances made by the complainant and that the complainant purchased above product on 27-05-2011 with warranty period of 5 years (1 years for product and 4 years additional warranty on compressor) . Warranty commences on 27-05-2011 and ends on 26-05-2016 and that the complainant approached opposite party No.1 dealer show room on 22-05-2016, they issued phone No.944021448 which was fake and the complainant lodged complaint to toll free No.18601804558 on 26-05-2016 within the warranty period and received complaint reference No.GR05166009578. The complainant got issued legal notice dated 21-06-206 to the both the parties for immediate settlement of dispute but in vain. Hence, the complainant submits to allow the complaint with costs.
4. The opposite party No.1 filed counter/written version with the following averments that:-
The opposite party No.1 submitted that it is the dealer of whirlpool company make Split Air Conditioner and that the complainant purchased one whirlpool company Split Air Conditioner under Invoice No.2573 dated 27-05-2011 W 12690-1.5 ton Chrom for Rs.27,001/-. The company i.e., the opposite party No.2 who is the manufacturer gave comprehensive warranty of 1 year. The opposite party No.2 further gave additional warranty of 4 years for compressor only subject to the limitations, conditions and exemptions as printed in the warrant card issued to the complainant. Further if any manufacturing defect arises during one year comprehensive warranty, the defective parts will be replaced on complaint to the authorized service centre of the company or to the toll free number provided by the manufacturer in the warranty card issued to the complainant. If any manufacturing defect arises during additional warranty period of 4 years to the compressor, the complainant has to complain the same to the authorized service centre of opposite party No.2 or to the toll free number and that as per the averments in the complaint, the complainant utilized the said A.C. nearly about five years without any defects. It is false to state that on 22-05-2016, the product failed to function completely and immediately the complainant approached this opposite party -1 dealer show room at Nellore on 22-05-2016 for repair and on that the opposite party issued mobile phone number 9440216448 belongs to one technician, Vamsi for reporting of complaint and complainant tried many times to that number, but the above number not functioning and not responding is utterly false and baseless.
5. The opposite party No.1 further submitted that even as per documents filed by the complainant, it came to know that the counsel for complainant Sri Gummadi Stalin sent mail to the opposite party No.2 on 21-06-2016 at 5.50 P.M. and the opposite party No.2 Care Manager Service Operations Support immediately gave reply on 22-06-2016 8.58 AM to the said counsel of the complainant. The complainant never approached this opposite party No.1 or never sent any letter about the complaint in the said A.C. to this opposite party No.1. So, unfair trade practice and deficiency in service does not arise against this opposite party No.1 and that when the sales are over as per understandings and warranty, the part of this opposite party No.1 who is seller is over and if any complaint in the said A.C., the complainant has to approach the authorized service centre or manufacturer or toll free number for complaints provided to the complainant.
6. The opposite party No.1 further submitted that the complainant approached the opposite party No.1 show room continuously for rectification of problem, but opposite party No.1 issued toll free number to the complainant and on that the complainant contacted to the Toll Free number on 26-05-2016 and received complaint reference No.GR05166009578 is false and baseless and that the complainant never approached this opposite party No.1 show room and this opposite party No.1 does not know about the complaint made by the complainant to the toll free number. This opposite party No.1 is not aware of the same and that the further averment in the complaint that in response to the complaint on 28-05-2016 one technician came and inspected the AC and finally he declared that the compressor to the said product failed and further he collected Rs.500/- and issued estimation bill in the name of TANVI Enterprises dated 28-05-2016. Thereafter complainant approached opposite party No.1 for remedy but they confirmed that the said product will not function and the complainant demanded this opposite party No.1 for replacement of product in place of the old one and this opposite party No.1 vehemently refused to answer and more over they confirmed that the warranty period already lapsed on 25-05-2016 instead of 26-05-2016 and it is an act of unfair trade practice and deceptive trade practice are all false and baseless and that the complainant need not approach this opposite party No.1, since this opposite party No.1 is neither authorized service centre or manufacturer and infact, the complainant never approached this opposite party No.1. If any defect arises it is the look out of the manufacturer and authorized service centre at Nellore but not this opposite party No.1. Further the estimation bill does not relate to the authorized service centre of opposite party No.2 firm. More over it is an estimation of an unauthorized firm, that too it is not a cash or credit bill. It is only estimation for repairs and that this opposite party No.1 so far not received any Email complaint about the non-functioning of the said AC. Even the notice filed by the complainant itself addressed to the opposite party No.2 but not this opposite party No.1. So, deficiency in service against this opposite party No.1 does not arise at all and that from the date of installation of the said A.C. till the fag end of warranty period of 5 years, no defects were noticed as per averments of the complaint. So, the allegation of deficiency and unfair trade practice is false and baseless against this opposite party No.1 and that this opposite party No.1 is no way connected and liable to the complainant claim as already stated. The warranty period is already expired on 25-05-2016 itself. This opposite party No.1 is not answerable any more after the warranty period. Further this opposite party No.1 is neither manufacturer nor authorized service centre and the opposite party submits that to dismiss the complaint against the opposite party No.1.
7. The opposite party No.2 did not file any written version and remained absent.
8. On behalf of the complainant, chief affidavit of complainant is received as the evidence of PW1 and Exs.A1 to A4 are marked.
9. On behalf of the opposite party No.1, the chief affidavit of opposite party No.1 received as the evidence of RW1 and on behalf of the opposite party No.1
no documents were marked.
10. On behalf of the opposite party No.2 no evidence was adduced and no documents were marked.
11. On behalf of the complainant, written arguments and additional written arguments were filed.
12. On behalf of the opposite party No.1, written arguments filed.
13. On behalf of the opposite party No.2, no written arguments filed.
14. Arguments on behalf of the learned counsels for the complainant and opposite party No.1 heard.
15. Perused the written arguments on behalf of the complainant and the opposite party No.1.
16. Now, the points for consideration are:
1) Whether the complaint filed by the complainant against
the opposite parties 1 and 2 under section 12 of Consumer
Protection Act, 1986 alleging deficiency of service against the opposite
party is maintainable?
2) To what relief, the complainant is entitled?
17. POINT NO.1 The learned counsel for the complainant submits by relying upon Exs.A1 to A4 that on 27-05-2011, the complainant purchased a ‘split air conditioner’ from the opposite party No.1 and the said air conditioner was not working properly and hence on 22-05-2016 as the split air conditioner was not functioning, the complainant informed the same to opposite party No.1 and they furnished a phone number, but there was no response and later on 25-05-2016 and 26-05-2016, the complainant approached the opposite party No.1, they furnished a toll free number and registered a complaint and inspite of registration of the complaint also there was no response and one person examined the air conditioner and replied that the air conditioner was failed and inspite of several requests made by the complainant to the opposite party No.1 failed to extend service. Hence, the complaint filed by the complainant against the opposite parties as deficiency in service and submits to allow the complaint with costs.
18. On the other hand, the learned counsel for the opposite party No.1 submits by relying upon a decision reported in Sk.Anand Vs. Delhi Vidyut Board in Appeal No.A-2163/2001 on the file of Delhi State Consumer Disputes Redressal Commission, SCDRC, New Delhi
that one day priority to the expiry of the warranty gave complaint to opposite party No.1 that the conditioner which was purchased by the complainant was not functioning and as the representation of the complainant is not bonafide and submits that as the opposite party No.1 sold air conditioner to the complainant, the opposite party No.2 alone is liable to attend for the repair as the opposite party No.2 is alone responsible for undertaking the repair works and the opposite party No.1 has nothing to do and as there was no deficiency of service by the opposite party No.1 submits that the complaint filed by the complainant against the opposite party No.1 is not maintainable and submits for the dismissal of the complaint against the opposite party No.1.
19. In view of the arguments submitted by the learned counsels for the both parties and as seen from the facts of the case, it is admitted fact that the complainant purchased an air conditioner from the opposite party No.1 under Ex.A1, Ex.A1 for Rs.27,001/-. Ex.A3 shows about the deceitful of the complainant. On behalf of the complainant, Ex.A4 is office copy of the legal notice dated 21-06-2016 which shows that about the complainant has issued Ex.A4 legal notice to the opposite party No.1 about the non-functioning of the split air conditioner and after receiving of Ex.A4 notice, the opposite party No.2 also gave reply notice under Ex.A4. It is also admitted fact that the split air conditioner, which was purchased by the complainant was not functioning during the warranty period. The opposite party No.2 who is the manufacturer of compressor gave warranty of one year and the opposite party No.2 further gave additional warranty of 4 years for compressor only subject to limitation and as the same was and the complainant purchased on 27-05-2011 the said warranty extended till 26-05-2016 and the complainant issued Ex.A4 notice to the opposite parties 1 and 2 on 21-06-2016 during the subsistence of warranty period. In view of the above said facts, the opposite parties failed to extend service to the complainant. We are of the opinion that the act of the opposite parties 1 and 2 is amounts to deficiency of service.
IN
Panasonic India Private Limited
Vs.
M.M.Sharma
Reported in 2006(4) CPJ 27(Delhi State Commission)
IN
Appeal No.A-972/2005 dated 02-02-2006
And
in, Padma Amrapurkar
Vs.
Williams & Co.
I(1992) CPJ 150 (154,155) 1991 (1) CPR 287 (Mah).
Wherein the Hon’ble State Commission, Delhi held that when the warranty period is existence the complainant is entitled for services from the opposite parties.
Following the above decision and by relying upon Exs.A1, A3 and A4 as the complainant informed to the opposite parties about the defects and non functioning of split air conditioner which was purchased under Ex.A1 on 21-06-2016 itself under Ex.A4. We are of the opinion that the non attending by the opposite parties 1 and 2 to extend service to the complainant is amounts to deficiency of service, as Ex.A1 warranty period force as on 21-06-2016. We are of the opinion that the non-attending by the opposite parties is amounts to deficiency of service and hence the complaint filed by the complainant against opposite parties has to be allowed.
20. The learned counsel for the opposite party No.1 submits that by relying upon a decision reported in Sk.Anand Vs. Delhi Vidyut Board InAppeal No.A-2163/2001 on the file of Delhi State Consumer Disputes Redressal Commission, SCDRC, New Delhi
that as the complainant filed by this complaint as the complainant issued Ex.A4 notice just before expiry of warranty period and the claim of complainant is not bonafide to file complaint and submits for the dismissal of complaint. But, we are of the opinion that the facts in the above decision are not applicable to the facts of the present case as the complainant had already availed remedy by filing a civil suit and as the complainant was not succeed in the said Civil Court and hence the decision submitted by the learned counsel for the opposite party No.1 is not applicable to the facts of the present case.
By relying upon the above decision and discussion, we are of the opinion that the complaint filed by the complainant against the opposite parties has to be allowed. In view of the above said decision, we answer this complaint in favour of the complainant and against the opposite parties 1 and 2.
21. POINT NO.2: In view of our answering on point No.1 in favour of the complainant and against the opposite parties 1 and 2, the complaint filed by the complainant has to be allowed with costs by awarding compensation for mental agony and costs of this complaint.
In the result, the complaint is allowed and the opposite parties 1 and 2 are directed to refund invoice amount of Rs.23,581/- (Rupees twenty three thousand five hundred and eighty one only) to the complainant with interest at the rate of 18% p.a. from the date of filing of case till the date of payment.
The opposite parties 1 and 2 are directed to pay a compensation of Rs.5,000/- (Rupees five thousand only) to the complainant.
The opposite parties 1 and 2 are directed to pay a sum of Rs.15,000/- (Rupees fifteen thousand only) for causing mental agony to the complainant.
The opposite parties 1 and 2 are directed to pay a sum of Rs.5,000/- (Rupees five thousand only) towards the costs of the complaint to the complainant.
The complainant is directed to return the defective Split Air Conditioner to the opposite parties at the time of payment.
The opposite parties 1 and 2 are directed to comply the order within 30 days on communication of the order.
Dictated to the Stenographer, transcribed by her and corrected and pronounced by us in the Open Forum this the 17th day of OCTOBER, 2017.
Sd/- Sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
WITNESSES EXAMINED FOR COMPLAINANT:
