Complaint No: 263 of 2021.
Date of Institution: 22.12.2021.
Date of order:10.11.2023.
M/s K.K. Nayyar and Sons, Near Punjab National Bank, G.T. Road, Dina nagar, District Gurdaspur through its Proprietor Surinder Nayyar. 143531.
….....Complainant.
.
VERSUS
1. Air Care System, Centrally Air Condition, Refrigeration and Electrical Industrial Area, Near Sonalika Hoshiarpur, through its concerned person.
Alternative Address :- Air Care System, Sukhiya Bagh, Outer Hoshiarpur, Near Dussehra Ground, Hoshiarpur-146001, Punjab, India.
2. Harjit Singh Bansal Owner of Air Care System, Centrally Air Condition Refrigeration and Electrical Industrial Area, Near Sonalika Hoshiarpur.
Alternative Address :- Air Care System, Sukhiya Bagh, Outer Hoshiarpur, Near Dussehra Ground, Hoshiarpur-146001, Punjab, India.
3. Amandeep Singh C/o Air Condition Refrigeration and Electrical Industrial Area, Near Sonalika Hoshiarpur.
Alternative Address :- Air Care System, Sukhiya Bagh, Outer Hoshiarpur, Near Dussehra Ground, Hoshiarpur-146001, Punjab, India.
.....Opposite parties.
Complaint u/s 35 of Consumer Protection Act.
Present: For the complainant: Sh.Sandeep Ohri, Advocate.
Opposite parties: Exparte.
Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.
ORDER
Lalit Mohan Dogra, President.
Surinder Nayyar, Proprietor of M/s K.K. Nayyar & Sons, Complainant (here-in-after referred to as complainant) has filed this complaint under section 35 of the Consumer Protection Act, (here-in-after referred to as 'Act') against the Air Care System and others (here-in-after referred to as 'opposite parties).
2. Briefly stated, the case of the complainant is that he is doing the work of selling Ice-cream, Butter and other related products in wholesale and is dealer of Amul Company and is working at Near Punjab National Bank G.T. Road, Dinanagar, District Gurdaspur and is doing this business exclusively to earn his livelihood and except this he has no other source of income and his whole family is dependent upon him. It is alleged that for his business purpose, he purchased cold storage Project from opposite parties and they send Cold Storage Machine to him. It is further pleaded that the bills dated 23.11.2020 and 17.01.2021 of Rs.3,72,880/- and Rs.4,05,920/- (Total amount 7,78,800/-). It is further alleged that before the said purchase, opposite parties had also sent quotation to him and in the said quotation, the said Cold Storage Machinery covered against One Year Warranty and the Warranty Period shall commence from the date of use and opposite parties also agreed to repair/replace the defect. It is further alleged that after two-three months, the machinery was not working properly and the cooling was not proper. It is further pleaded that due to which the Ice Cream Articles of complainant got destroyed and at that time also he made complaint to opposite parties and after lot of requests, the Opposite Parties removed the defect. It is further alleged that in the month of July 2021, the problem again occurred in auto cut of Machine and the machine failed to auto cut, due to which he paid huge amount of Electricity Bill of Rs.70,000/ - per month for about three months. It is further alleged that now in the month of October 2021, the new problem occurred in the machine and ice started collecting in the Machine, due to which the Machine failed to make proper cooling. It is further pleaded that due to which the stored Ice Cream items of him completely destroyed. It is further alleged that he made the complaint to Opposite Parties through his whatsapp number on Opposite Parties whatsapp number regarding this many times and also send the photographs of the machine to the Opposite Parties. It is further pleaded that even many phone calls have been made to Opposite Parties to get the Machine repaired, but inspite of repeated requests, Opposite Parties failed to send any competent person to remove the defect and to check the machine. It is further pleaded that he has also sent a legal notice dated 11.10.2021 to the Opposite Parties and on 13.10.2021 through registered postal receipt, but inspite of that no one came to remove the defect from the Opposite Parties and neither changed nor repaired the said machine. It is further alleged that there are two units in the said machine and two days back, one unit totally got shut down and is not working and as such the machine is totally defective and there is manufacturing defect in the said machine. It is further pleaded that due to this illegal act and conduct of the opposite parties he has suffered great loss and also suffered physical and mental harassment and inconvenience. It is further pleaded that there is a clear cut deficiency on the part of the opposite parties.
On this backdrop of facts, he has alleged deficiency in service and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the Opposite Parties be directed to pay the amount of Rs.7,78,800/- alongwith interest @ 12% per annum from the date of present complaint till its actual realization or the complainant may be directed to remove the defect of the machine or to change it with new machine and the complainant may also be awarded an amount of Rs.1,00,000/- for harassment and monetary loss and Rs.20,000/- for the deficiency in services of the Opposite Parties and Rs.20,000/- as a cost of litigation, in the interest of justice.
3. Opposite parties did not appear and despite the service of notice and were proceeded against exparte wide order date 21.02.2023.
4. Learned counsel for the complainant has tendered into evidence affidavit of Surinder Nayyar, Proprietor of M/s K.K. Nayyar & Sons (Complainant) as Ex.CW-1/A alongwith other documents as Ex.C-1 to Ex.C-8.
5. Written arguments not filed by the complainant.
6. Counsel for the complainant has argued that complainant had purchased cold storage machine from the opposite parties for earning his livelihood vide bills Ex.C1 and Ex.C2. It is further argued that within the warranty period the said machine started having problem in the auto cut system and collecting of ice in the machine due to which complainant suffered huge loss in the business. Opposite parties have failed to repair or replace the defective machine which amounts to deficiency in service. Counsel for the complainant had made prayer for directions to opposite parties to refund the amount of Rs.7,78,800/- alongwith interest @ 12% P.A. or to remove the defect in the machine or to replace the machine and to pay compensation.
7. Opposite parties remained exparte.
8. To prove his case complainant has placed on record his duly sworn affidavit Ex.CW-1/A, copies of invoice Ex.C1 and Ex.C2, copy of quotation Ex.C3, copies of message regarding complaint Ex.C4 and Ex.C5, copy of legal notice Ex.C6, postal receipts Ex.C7 and Ex.C8, copy of invoice regarding repair Ex.C9.
9. Perusal of file and evidence on record shows that said machine was purchased by the complainant exclusively for earning his livelihood and said evidence has remained unrebutted, as such complainant falls under the definition of consumer under the Consumer Protection Act.
10. Perusal of file further shows that the cold storage system was purchased by the complainant vide bills Ex.C1 and Ex.C2 on 23.11.2020 and 17.01.2021. Perusal of Ex.C3 shows that there is warranty of one year against manufacturing defect. Perusal of message regarding complaint Ex.C4 shows that first complaint regarding defect in the machine has been sent to the opposite parties on 19.09.2021 and thereafter on 30.09.2021, on 06.10.2021 and on 07.10.2021 which is within one year from date of purchase of the said machine, as such it was fully covered under the warranty Ex.C3 and complainant had paid huge amount to the opposite parties for purchase of the said product, as such opposite parties were under obligation to repair the same for the defect reported by the complainant. Since, it has come on record that during the pendency of the present complaint, the complainant has got the said cooling system repaired from the market by making payment of Rs.49,300/- vide tax invoice Ex.C9, and failure to repair and compelling the complainant to get the same from market proves the business malpractice and deficiency in service on the part of the opposite parties. Since, the machine has been got repaired from the market by the complainant and as such prayer for refund of amount and replacement of machine is declined. However, since complainant has got the machine repaired from the market on 31.03.2022 and the defect was reported on 19.09.2021 meaning thereby that machine remained out of order for almost approximately five months and the complainant must had suffered loss of business and earning due to defect in the machine for five months. Accordingly, we are of view that complainant is entitled to the compensation amount of Rs.1,00,000/- as claimed the prayer clause which includes cost of repair of Rs.49,300/-.
11. Accordingly, present complaint is partly allowed and opposite parties are directed to pay Rs.1,00,000/- to the complainant jointly and severally alongwith interest @ 9% P.A. from the date of filing of complaint till realization within 30 days from the date of receipt of copy of this order.
12. The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases.
13. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to record.
(Lalit Mohan Dogra)
President
Announced: (B.S.Matharu)
Nov. 10, 2023 Member
*YP*
