SRI BIJOY KUMAR DAS,PRESIDENT:-
Unfair Trade Practice and deficiency in service in respect of not replacing or refunding the cost of the defective Complainant’s split A.C. are the allegations arrayed against Ops.
2. Complaint, in brief reveals that, Complainant purchased a Split A.C. bearing Model No. ARI8JC5 HATP on dt. 07.05.2015 from ABHIRAM DISTRIBUTORS, Keshpur, Kendrapara(OP No.1), manufactured by SAMSUNG INDIA Electronics Pvt. Ltd.(OP No.2) on payment of Rs. 42,400/- and also obtained the money receipt bearing No. 394 and warranty card serial No. 345942 of Op No.2, where the warranty was given for 5 years. It is alleged that after purchase of said A.C., it was functioning normally for 18 months, but all on a sudden defects arose on said A.C. and automatically stopped functioning and there was no cooling. Complainant lodged the complaint before Op No.1 dealer and the service mechanic attended the complaint, but the defects could not be eradicated. Accordingly, in the month of June-2017, complainant asked the Op No.1 to replace the A.C or to return the price of the A.C. and Op No.1 assured the Complainant to resolve the dispute through Op No.2, but till date the Ops did not take any step to resolve the complainant. It is also alleged that the acts of the Ops by not rectifying the defects are Unfair Trade Practice & deficiency in service, which caused mental agony to complainant and his family members. Complainant in the circumstances was forced to issue an advocate’s Notice on dt. 16.12.2017 to Op No.1, but all went invain for which this complaint before the Forum with prayer that, a direction may be given to Ops to replace the defective A.C. with a new one of same Model or to refund the price of the A.C.and Rs. 30,000/- may be awarded in favour of the Complainant which includes the compensation for mental agony and cost of litigation.
3. Notice was served to the Ops through Regd. Post with A.D., but Op No.1, ABHIRAM DISTRIBUTORS did not prefer to appear into the dispute, and was set ex-parte by this Forum vide order No.9 dtd. 26.06.2018.
Samsung India Electronics Pvt. Ltd. (Op No.2) appeared into the dispute through their Ld. Counsels and filed written statement, which contains the preliminary objection on maintainability of Complaint and para-wise reply. OpNo.2 in the preliminary objection raised the maintainability of the Complaint on grounds that neither any evidence of manufacturing defect is placed nor the defects on the said A.C. occurs during the warranty period of I year and the provisions of section 13( c) and (d) are not complied by the complainant. Op No.2, in their para-wise reply averred that, the warranty on the total A.C. covers for a period of 1 year which is completed on dt. 07.05.2016 and only 4 years extended warranty is issued only on compressor of the A.C. It is also averred that, as per the complaint the A.C. was functioning in a normal condition for period of 18 months, hence as per the terms & conditions of the warranty the Ops have not committed any Unfair Trade Practice or deficiency in service as the warranty period in total A.C. is expired, accordingly, OpNo.2 cannot be compelled to replace or refund the price of the A.C. In para-wise reply Op No.2 in details describe the dates of servicing provided by M/S Tulasi Refrigeration, Kendrapara, the Authorized Service Centre of Op No.2 to the Complainant in between dt. 05.09.2017 to 13.10.17 . OpNo.2 also cited different decision of Honbl’e State Commission and Honbl’e National Commission on support of their averments and seeks dismissal of the complaint with cost.
4. Heard the Ld. Counsels for the Complainant and case of the Op No.2 on merit and ex-parte hearing against Op No.1, perused the documents filed into the dispute. Complainant to substantiate his case filed attested photocopy of Retail Invoice dtd. 07.05.2015, in support of purchase of dispute A.C, photocopy of warranty card of Op No.2- Company and copy of legal Notice dtd. 16.12.2017addressed to OpNo.1. OpNo.2 also files Service Centre add of M/S Tulasi Refrigeration dtd. Nil. The facts of the case are that, Complainant purchased a Split A.C. from ABHIRAM DISTRIBUTORS, manufactured by SAMSUNG INDIA Electronics Pvt. Ltd. (Op No.2) on dt. 07.05.2015 on payment of Rs. 42,400/- and warranty card issued to the complaint alongwith Retail Invoice by Op-1 authorized dealer and it is also a fact that A.C. was functioning normally for 18 months from the date of installation. The crux of dispute relates to non-eradication of defects on the said A.C. during the warranty period, which according to Complainant is an Unfair Trade Practice on part of the Ops.
The Op No.2 raised preliminary objection on maintainability on grounds of expiry of warranty period, lack of expert evidence etc. which is to be decided first. In this point, we are of the opinion that C.P.Act, 1986 is silent regarding hearing of any preliminary objections. The provisions U/S 13 ( c) & (d) of the C.P.Act, 1986 refers to findings/trial of the proceeding, where evidence are required to appreciate the allegations. However, the questions raised in the preliminary objections are dealt in the present order considering all the aspects.
We perused the warranty card issued by Ops, where it is expressly mentioned that out of total 5 years of warranty 1 year of warranty is covered in total unit of the A.C. and another 4 years extended warranty is covered for condenser/compressor. In the present case on own version of the complainant the A.C. was functioning normally without any complaint for more than one year. Both parties are silent regarding alleged specific defects on the A.C. whether caused due to defects in the compressor or not? Further in the absence of any expert opinion. It is difficult to arrive into a conclusion that the alleged defects were covered under the warranty period of 5 years (which includes the extended warranty period of 4 years on compressor). However, on perusal of written statement, it reflects that Authorized Service Centre of Ops M/S Tulasi Refrigeraton, Kendrapara has attended the said A.C. for rectification of defects for 4 times starting from dt. 05.09.2017 to 13.10.2017. Now it is clear that the disputed A.C. was/is having defects though it may not be covered in warranty period. The another aspect of the case is that non-response of the Advocate’s Notice issued by complainant to Op No.1 authorized dealer, which was sent through Regd. Post. In the instant case the rights of the consumer like complainant is not protected by either informing or responding the legal Notice and in the non-appearance of Op No.1 the burden of negligence squarely fixed on both the Ops. We, think it appropriate if the defects on said A.C. is eradicated on repairing, the grievance of the Complainant will be fulfilled. As the defects on the A.C. occurred after the expiry of warranty period of 1 year and in between extended period of 4 years both the parties have to share the expenses of the defective A.C. equally. In the facts and circumstances of the case, we feel that, Ops have not committed any deficiency in service or Unfair Trade Practice, accordingly, Complaint is not entitle for any compensation or cost.
Having observations reflected above, it is directed that Op No.2 will make necessary repair on the disputed A.C. by replacing spare parts if required, and will make the disputed A.C. into a defect free one. The Complainant will bear the cost of the spare parts and Ops will repair the defective A.C. without charging any labour/servicing cost. The order is to be carried out by Op No.2,within one month of receipt of this order failing which action will be initiated against the defaulting parties as per the Provision of C.P.Act-1986.
Accordingly, the Complaint is allowed in part without cost.
Pronounced in the open Court, this the 31st August,2018.
I,agree.
Sd/- Sd/-
MEMBER PRESIDENT
