Complainant Prabjeet Singh through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that opposite party may kindly be directed to replace the product with new one and had also claimed a sum of Rs.50,000/- as compensation for the sufferings.
2. The case of the complainant in brief is that on 28.05.2015 he had purchased “Onida Air Conditioner” 1.5 Ton 5 Star Model No.S185SMH Split amounting to Rs.37,000/- from Ajay Electroworld Batala and as such he is the consumer of the opposite party and the product purchased by the complainant had one year warranty period as per the terms and conditions of the policy of the Company. It was pleaded that at the time of purchase complainant went to purchase Window model A.C. and told the opposite party no.1 that he wants to install A.C. in his bed room and opposite party no.1 told him that he should purchase split A.C. instead of window A.C. as split A.C. had low noise level than the window and would be comfortable to sleep and noise level of split A.C. purchased by the complainant i.e. Onida Air Conditioner, 1.5 Ton 5 Star Model No.S185SMH had 43 DB. It was pleaded that the main reason to install the split A.C. than the window A.C. the noise level of the split A.C. is very low than the window A.C. It was further pleaded that after the installation of Air Conditioner purchased by the complainant it revealed that it had some manufacturing defect due to which it generates huge noise and it was impossible for the complainant to sleep after switching on A.C. and the noise of the A.C. was not bearable. Complainant lodged a complaint at Onida service centre on telephone and a person came to attend the complaint from Onida service centre and tried to remove the defect but he failed to do so and the said mechanic told the complainant that this product had some manufacturing defect and would be replaced with new one. It was further pleaded that complainant contacted Ajay Electroworld and asked for replacement of A.C. as it was within period of Gurantee/warranty and opposite party no.1 promised the complainant that they will replace the product with new one as the warranty period of one year was pending. On the assurance given by opposite party no.1 complainant kept on waiting and summer season of 2015 had been elapsed but opposite party no.1 failed to replace the purchased product and the summer season of 2016 was again started and complainant made various requests at the toll free no. and also to opposite party no.1 but they did not pay any heed to the requests of the complainant. It was next pleaded that complainant is entitled for new product as the warranty period is pending and due to the deficiency in service of the opposite party complainant had suffered a lot, hence this complaint.
- Notice of the complaint was served upon the opposite party no.2 who appeared through their counsel and filed written reply by taking the preliminary objections that complaint is not maintainable against the opposite party and opposite party is not liable to pay anything to the complainant. On merits, it was admitted that complainant had purchased Onida Split A.C. from the opposite party no.1 but it had not been installed by the engineer of the Company i.e. opposite party no.2 and complainant himself installed the same at his own and it was stated that split A.C. had low noise level than the window A.C. It was denied that noise level of Onida Air Conditioner 1.5 Ton 5 star Model No.S1855MH had 43 DB. It was stated that the noise level of the A.C. had been checked by the engineer of the opposite party and after checking it was found correct and the same can be checked with the help of noise testing meter after switching off the A.C. It was further denied that there was manufacturing defect in the A.C. and it created high noise. Complainant also told by the mechanic that there was no mechanical defect in the A.C. and the same was in perfect in working condition and was having low noise level and as such there was no need to replace it. Lastly, prayed for dismissal of the complaint with costs.
4. Opposite party no.1 did not appear and it was proceeded against exparte vide order dated 30.6.2016.
5. Counsel for the complainant had tendered into evidence affidavit of complainant Ex.C1 along with documents Ex.C2 and Ex. C3 and closed the evidence on behalf of complainant.
6. Sh.Bhupinder Singh Engineer of opposite party no.2 had tendered into evidence his own affidavit Ex.OP-1 and closed the evidence on behalf of opposite party no.2.
7. We have carefully examined all the documents/evidence as available on the complaint records (as duly put forth by the attending litigants) along with the scope of the adverse inference that may be judicially but discretionarily drawn on account of the ex-parte absence of the opposite party # 01 despite the proven dispatch of the summons; of course, in the very back-drop of arguments as put forth by the learned counsels for the present opposing/ litigating sides. We find that the complainant had purchased one unit of Onida Split Type 1.5 Ton Air Conditioner from the opposite party no. 01 vendor vide Bill/ Cash Memo # 17825 dated 28.05.2015 (Ex.C2) for Rs.37,000/- that was duly delivered and installed at the complainant’s residence in his Bed-Room. Upon usage, the complainant found its working operations to be noisy, aloud and sleep-disturbing to the occupant(s) and thus made the requisite complaint to the opposite parties who somehow claim the AC’s working noise as quite usual, normal and bearable.
8. We find that the complainant has neither produced any record of the OP’s Mechanic alleged visit/detection of ‘manufacturing defect’ in the AC in question nor he has produced any ‘expert opinion’ to support and prove his allegation of the abnormally ‘loud’ AC noise entitling him to replacement etc. The complainant has produced one undated statement on plain sheet of paper in somewhat ‘letter-format’ (sans affidavit) to prove the alleged defect but that fails to fulfill/ satisfy the statutory pre-requisites to claim ‘replacement’ and compensation etc. On the other hand the OP 2 Manufacturers have produced the Co’s Engineer’s affidavit duly deposing the ‘normal’ functioning of the AC in question.
9. The learned counsel for the complainant has argued that the disturbing loud AC noise becomes peculiarly ‘audible’ in the quiet of night when the AC has run for continuous 3-4 hours (at a stretch) and that may be the reason for the ‘defect’ escaping the notice of the Co’s engineer(s). We find force in the contending argument of the learned counsel and are inclined to determine an amicable and acceptable judicial resolve to the situation.
10. In the light of the all above, we are of the considered opinion that the present complaint can be best disposed of by directing the OP1 Vendor to remove the AC in question from the complainant’s residence to the OP2 Manufacturer’s Local Service Centre (as per its local arrangement) who shall in the presence of the complainant keep it under observation to remove the ‘defect’(Free of cost) if any and re-install the same in perfect working order at the complainant’s residence besides to issue him an Okay-Certificate from a qualified engineer within 30 days of the receipt of copy of the present orders. The entire exercise shall be completed within the prescribed 30 days of the receipt of the copy of the present orders by the opposite party(s) otherwise the titled opposite parties shall be jointly and severally liable to replace the installed AC (at the complainant’s place of residence) with a new/fresh AC of same model and specifications etc.
11. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.
(Naveen Puri)
President.
ANNOUNCED: (Jagdeep Kaur)
SEPT. 16, 2016 Member.
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