D.O.F. 20.03.2010
D.O.O.02.11.2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM KANNUR
Present: Sri. K.Gopalan : President
Smt. K.P.Preethakumari : Member
Smt. M.D.Jessy : Member
Dated this the 2nd day of November 2011.
C.C.No.91/2010
Simon,
Parayil House,
Payyavoor.P.O. Complainant
(Rep. by Adv.)
1. Manager,
Nandilath G Mart,
G.Mart Corner,
Chovva, Kannur.
(Rep.by Adv.K.K.Balaram)
2. Manager, Videocon Service Centre,
Near John Mill Stop,
Kannur.
(Rep. by Adv.O.K.Radhakrishnan Nambiar)
3. General Manger,
Videocon Industries Ltd.,
Auto Cars Compound Opposite Parties
Paithan Road,
14 KMS stone, Chitagaon Village,
Aurangabad 431105.
(Rep. by Adv.O.K.Radhakrishnan Nambiar
O R D E R
Sri.K.Gopalan, President
This is a complaint filed under Section 12 of Consumer Protection Act for an order directing the opposite parties to replace the new AC with compensation and cost.
The case of the complainant in brief is as follows: Complainant has purchased Air Conditioner model No.VSC.3544 Videocon for an amount of `16,000 from 1st opposite party. 3rd opposite party is the manufacture. Stabilizer was not given to the complainant on the date of purchase since there was no stock. At the time of purchase opposite party offered free service for every three months, scratch card and gifts through ‘G’ Mart thunder offers. On 16.9.2008 two official servicemen came to complainant’s house and fixed the AC free of charge. But they kept open the hole made on the wall for fixation of AC without filling it up. After three months when complainant approached 1st opposite party for the first service he was given phone number and directed to contact Videocon Authorized service centre. Thereafter one service person came to his house and examined the AC. He then told complaint that there was no need of service since it had not been used much. Complainant was not given any additional offers and at last 1st opposite party gave an ear phone only. The AC started showing defect from 15.2.09 onwards. Complainant and his family members repeatedly contacted 1st opposite party several time. Complaint suggested repairing or replacing the AC. Though promised to do what is necessary, opposite party neither repaired AC nor replaced. Complaint went to 1st opposite party since the period of warranty was almost over and registered the complaint on their complaint register. Then they promised to do the necessary repair before the warranty period itself. But after the warranty period was over one Adarsh, Cool land, Kannur came to complainant’s house and inner parts of AC loosened and detached and told the complainant that the cooling sensor, swing motor etc. has to be replaced since it was defective. For the repair of cooling sensor he demanded `1000. After request to avoid this amount within the warranty period, it was reduced to `600. Then he was started to go saying that he has no implements with him to repair the swing motor and the same will be repaired within 2 days. Then complainant requested to check the AC to see whether it is working or not he attempted to start by operating the remote but it was found not working. He took away the remote for repair and on December 2009 returned the same repairing free of cost. But the swing Motor still has not been repaired. He has contacted for this for more than 20 times. Though cooling sensor was repaired the temperature that has been shown in it has not been affecting inside the room. Opposite party was actually cheating him without conducting the repair properly and in warranty period. Hence this complaint.
Pursuant to the notice opposite parties appeared and filed version denying the main allegation. The contents of the version filed by 1st opposite party are as follows. It is true that complaint purchased Videocon VSC 3544 AC for `16,000 on 13.9.08.But it is not true that he was not given stabilizer since it was out of stock and promised to give at the time when they would fix the AC in his house. It is also false to say that this opposite party has offered free service for every three months and scratch card and other thunder offers and gift as additional benefit This opposite party has made only an offer for free service within the guarantee period .AC and stabilizer has been given on the same day. Filling of the gap of the hole made for fixing AC is not usually included as opposite party’s service. If the electrician who are fixing the AC they are not acquainted with the masonry work. It has to be filled by mason.1st opposite party is not aware of the fact that on January 2009 one person visited complainant’s house and told him that service was not necessary since it was not used much. It is also false that one person from Nandilath G-mart gave him an earphone. It was a gift given to complainant on the basis of scratch card for promoting the sale of the goods. It was with great pleasure that he received the gift. The complainant’s allegation that the complainant noted complaints of AC from 15.2.2009 onwards and the complainant and his family members contacted this opposite party but opposite party did not replace or repair the AC except the promise are false. This opposite party specifically informed complainant that he has to approach Videocon service centre in respect of the complaint of Air conditoner. All those complaints reported by opposite party have been informed to Videocon service centre. This opposite party has given clear indication to complainant at the time of purchase itself that regarding the service condition. The repair works has to be conducted by Videocon service centre. All the complaints of the complainant were reported to them by this opposite party. The allegations that this opposite party delivered defective AC and waited for expiry date for conducting repair etc. are false. It was a new defect free new AC delivered and fixed for the complainant. This opposite party is not liable to fill up the holes. It should have been done by the complainant. Because of non filling the rats were entered to AC and destroyed electrical wiring. Hence it is known that it has having affected the functioning of AC. Complainant’s allegation that he has sent letter on 16.1.2010 and 23.7.10 etc. are false. There is no deficiency on the side of this opposite party. Hence to dismiss the complaint.
Opposite parties 2 and 3 filed version separately. The brief facts of the contentions are as follows: 3rd opposite party is the manufacturer of AC purchased by the complainant. The allegation that stabilizer was not given at the time of purchase is false. It is also not true that the opposite parties has offered free service for every three months together with scratch card and other thunder offers and gift are additional benefits. Free service during the warranty period of one year was only the offer given to complainant. It is false that complaint has noticed defect in the functioning of AC on 15.2.09 and opposite party did not attend or rendered service. In fact 2nd opposite party attended the complaint timely At that time AC was working normally. The remote control of AC was replaced without charge. At that time the opposite party has noticed that the hole to fix the AC was not closed There was open place through which rat and insects could be get into which may tamper the functioning. Complainant was cautioned and asked to fill the hole. The technicians of 3rd posit party attended the complaints of complainant promptly. On the first and formal inspection itself it was noticed that cable of the motor was broken and disconnected due to entry of small rat or similar insects inside the motor of AC. The hole of the wall was not closed. In fact the complaint of AC is not due to the technical defect in any parts of AC or failure of machinery or due to any manufacturing defect of AC. There is no deficiency on the part of opposite parties and so complainant is not entitled for any relief. Hence to dismiss the complaint.
On the above pleadings the following issues have been taken for consideration.
1. Whether there is any deficiency on the part of opposite
Parties?
2. Whether the complainant is entitled for the remedy as
prayed in the complaint?
3. Relief and cost.
The evidence consists of the oral evidence of PW1, DW1 Exts.A1 to A9.
Issue Nos.1 to 3
Admittedly complainant purchased Air conditioner from 1st opposite party for `16,000 and the same was installed at the house on 16.9.2008.The case of the complainant is that after three months when he approached 1st opposite party for the purpose of 1st service he told him to approach Videocon authorized service centre thereafter and also supplied their phone number. After contacting them one of their men came to the house of the complainant but returned back telling that no service was required. Apart from the allegation that opposite party did not provide timely service and the AC was defective, he has also complained about installation and non filling of the hole. Free offers also were not given. Servicing was delayed till the laps of warranty period. The improper functioning of AC was noted by him on 15.2.2009 onwards. But opposite party neither repaired nor replaced the AC though demanded repeatedly. Cooling censor was repaired by the technician Adarsh on payment of `600 as cost. On the other hand opposite parties contended that there was no complaint of the working of the air-conditioner at the time of instillation and thereafter for five months. In the separate version of opposite parties 2 and 3 it was contended that opposite party has filled the hole as far as possible with the thermocool since complainant do not have any expertise mason-worker. He has cautioned the complaint about the nuisance of rat and asked to fill the small hole. In fact 2nd opposite party had attended the complaint of AC promptly and noticed the cable of the motor was broken due to the entry of small rat and it was brought to the notice of complainant, which he reluctant to accept. It was also contended that opposite parties did not collect any excess amount.
Complainant adduced evidence by way of affidavit in tune with the pleadings. Ext.A1 shows the price of the Air conditioner Dieocn USC 354 is `16884. Invoice date as well as delivery date is 13.9.08. Ext.A2 shows that the price of the stabilizer V Guard is `2397. Different from Ext.A1 there is no delivery seal in Ext.A2. The Bill is dated 16.9.08. It shows that the allegation of the complainant that stabilizer was not delivered together with the Air conditioner is true. Complainant has written the word ‘received’ and put his signature in Ext.A2 instead of delivery seal. It is quite evident that stabilizer delivered not together with the Air conditioner but only later. So there is substance in the allegation of the complainant. It is an admitted fact that Air conditioner is installed by the opposite parties. The case of the opposite party is that filling up of the hole on the wall, which was made for the purpose of installation, should have been done by the complainant. Learned counsel argued vehemently that it is the complainant, who is bound to do the filling work since it require expertise work for cement plastering. Opposite parties 2 and 3 also pleaded the same in their version. It is a wonderful contention which is difficult to digest. Non filling of the wall is a deficiency in service on the part of opposite parties. Opposite parties contended that the main reason for the non-functioning of AC is solely due to the destroying of cable/wire by entry of insects inside the motor while it was not in use. But opposite parties shifted their case conveniently that it was due to the bite of the rate. Whatsoever, if such a danger was existing in leaving the hole unfilled it is the bounden duty of opposite parties to make assure that instillation having been done free from such attack. DW1 in his cross examination stated “ Fen Ibdn F¶p ]d-ªXp hbdp apdn-¨-Xnsâ hy-X-ym-kT In«mWv”. So it is not sure but only a guess. But if the technician was sure tht there is no need to say that the complaint was caused due to the entry of insects but could be straight away present that it was due to the attack of rat, though in the ordinary course difficult to believe. However, the dealing of opposite parties makes it clear that the work of installation had been carried out without making assure the safety of AC. If an installation is done in such a way that rats and insects can easily destroy a machine that installation can only be considered as standard less which certainly amounts to deficiency in service.
It is also important to note that Exts.A5 warranty card, under “finishing touches” included fill in the gaps which reads thus “ Fill in the gaps left over by the pipeline hole and wall hole to prevent rain-water from entering. That means the very purpose for which the hole is intended to close is to prevent rain water from entering. If it was intended to prevent the entry of rat or insects that caution also should have been added there itself. The question of such fear of attack of rat or insects did not mention anywhere there. Hence it is not possible to believe that the defect of the AC occurred through the entry of insects. The burden to prove such pleadings is on the shoulders of opposite parties. Opposite parties has to prove first of all that complainant is legally bound to fill up the wall hole left after the installation of the Air conditioner and secondly the defect caused due to the entry of insects. Opposite parties also liable to explain why the terms and conditions in the warranty kept silent without mentioning such eminent danger while stating clearly the purpose of filling the hole as to prevent rain water from entering. Taking into account the entirety of situation it can only be assumed that there is manufacturing defect with the air conditioner and there is deficiency in service in installation also.
In the light of the above discussion we are of opinion that opposite parties are liable to install a new air conditioner of the same with warranty to complainant taking back the old one. Complainant is also entitled for an amount of `1000 as the cost of these proceedings. In case opposite parties are not installing the new AC of the same within the prescribed time they are liable to return the price of the AC. We are avoiding compensation considering the fact that complainant was able to use the AC for 6 months. Hence the issues 1 to 3 are found in favour of complainant.
In the result, the complaint is allowed directing the opposite parties to install a new Air Conditioner of the same with warranty taking back the old one together with a sum of `1,000( Rupees One thousand only) as cost of these proceedings. In case opposite parties are failed to install the same within time they are liable to return the price of the AC with above said cost. Opposite parties are further directed to implement the order within one month from the date of receipt of this order, failing which the complainant is at liberty to execute the order as per the provisions of consumer protection Act.
Sd/- Sd/- Sd/-
President Member Member
APPENDIX
Exhibits for the Complainant
A1 & A2. Bills issued by OP dt.13.10.08 & 16.9.08.
A3. Lucky draw coupon issued by OP 1.
A4. Bill dt.15.10.09 issued from Cool land
A5. Page 8 of the installation manual
A6.Warranty conditions of Videocon
A7.Copy of the letter dt.15.1.10 sent to OP1
A8.Copy of the registered letter dt.23.1.10 sent to
A9.Postal AD
Exhibits for the opposite parties: Nil
Witness examined for the complainant
PW1.Complainant
Witness examined for the opposite parties
DW1.Adarsh.M.K.
/ forwarded by order/
Senior Superintendent
