Punjab

Ludhiana

CC/16/512

Harpreet singh - Complainant(s)

Versus

Annex computer - Opp.Party(s)

Devan Verma Adv.

14 Aug 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 512 of 15.07.2016

Date of Decision            :   14.08.2017

 

Harpreet Singh Bal aged 35 son of Sh.Jiwan Pal Singh r/o Shaheed Karnail Singh Nagar, Pakhowal Road, St.No.15, Phase-3, Ludhiana.

….. Complainant

                                                            Versus

 

1.Annex Computers, BXXIII, 4079/1, Near Aman House Link Road, Samrala Chowk, Ludhiana, through its Branch Manager/its Proprietor/Partner/Managing Director/Authorized person.

2.Hitachi Home and Life Solutions(India) Ltd., A Johnson Controls, Hitachi Air Conditioning Company Shop No.TF301, 3^rd Floor, DMRC Building, New Ashok Nagar Metro Station, New Delhi-110096.

3.Hitachi Service Centre, Plot/SCO No.#92, Kailash Cinema Road, Ludhiana.

 

…Opposite parties

             (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

 

SH.G.K.DHIR, PRESIDENT                                        

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

 

For complainant               :         Sh.Devan Verma, Advocate

For OP1                           :         Ex-parte.

OP2 and OP3                  :         Sh.A.B.Sharma, Advocate

 

PER G.K.DHIR, PRESIDENT

 

1.                 Complainant purchased Hitachi 1.2 ton five star air conditioner(AC) from Op1 vide invoice No.4890 dated 5.6.2016 by paying Rs.35,560/- on assurance that the said AC is best product in the market. However, after few days, the said AC started creating problem because it is not giving proper cooling and even not working properly. OP1 procrastinated the matter first and thereafter, refused to remove the defects by claiming that as AC is in warranty and as such, OP2 is responsible for removal of defects. On approaching OP2 through telephone calls many times, complaint nos. 16062006661 and 16061704830 were registered, but nothing was done except that of referring to OP3, the service centre. Then employee of OP3 visited the premises of complainant for disclosing that he is unable to remove the defects. Promise was made to send some engineer for removal of defects, but thereafter, despite approach to OP3 many times, nothing has been done for repairing of AC and making it fit for proper working. Ops misbehaved with the complainant and repair has not been done, despite AC being within warranty and as such, prayer made for directing Ops to give new AC and pay Rs.65,000/- as compensation for harassment, but Rs.20,000/- as litigation expenses.

2.                 OP1 is ex-parte in this case.

3.                OP2 and Op3 filed their joint written reply by claiming interalia as if complaint is false and frivolous; OP2 and OP3 have never failed to provide satisfactory services to the complainant; no cause of action has accrued to the complainant; complainant has not approached   this Forum with clean hands owing to suppression of material facts and that complaint has been filed with ulterior motive for getting mileage in the society and brining disrepute to OP2 and OP3. It is also claimed that this Forum has no jurisdiction because as per agreement, in the event of any dispute, courts of Ahmedabad alone to have exclusive jurisdiction. Agreement of warranty is a concluded contract and the parties are bound by the terms and conditions of the contract. OP3 is renowned company manufacturing electronic products for sale. If there would have been any manufacturing defect, then the same would have occurred in the entire lot, but no one else has complained and as such, story of manufacturing defect denied. It is claimed that an equipment or machinery can ordered to be replaced only if it cannot be repaired. Besides, it is claimed that the defects cannot be determined without proper analysis or test of the goods, which has not been got conducted by the complainant as per provisions of section 13(1)(c) of the Consumer Protection Act and as such, complaint is not maintainable. Op1 is a showroom dealer for OP2 and OP3 and it maintain the stocks of the products on behalf of OP2 and Op3. It is not denied that air conditioner was purchased by the complainant from Op1. However, it is claimed that complainant never contacted OP2 and OP3 relating to any problem of AC. Further, it is claimed that the complaint lodged by the complainant is without any concrete and valid evidence in support of claim. Prayer made for dismissal of complaint owing to its being frivolous.

4.                 Complainant to prove his case tendered in evidence his affidavit Ex.CA along with documents Ex.C1 to Ex.C3 and then his counsel closed the evidence.

5.                 On the other hand, counsel for OP2 and OP3 tendered in evidence affidavit Ex.RA of Sh.Sandeep Mehra, the authorized representative of OP2 along with document Ex.R1 and then closed the evidence.

6.                 Written arguments not submitted by any of the parties. Oral arguments alone addressed and those were heard. Records gone through minutely. 

7.                 Complainant to prove the purchase of Hitachi Air conditioner in question has produced on record bill/invoice Ex.C1 for proving that he purchased the same from OP1 on 5.6.2016 by paying  price of Rs. 35,560/-.  On this bill/invoice Ex.C1 itself, it is mentioned that warranty claims are subject to terms and conditions made by the principal manufacturer and Op1 will not take any responsibility of any kind of omission/error/default on their part.So,from these terms and conditions endorsed on Ex.C1 itself, it is obvious that OP1 made clear to the complainant that he is not responsible for any kind of omission/error/default in the parts of A.C. As warranty to be provided by the manufacturer or the service centre and as such, certainly OP1 cannot be held responsible for any default in the A.C. Being so, complaint against OP1 is not maintainable, particularly when deficiency in service alleged on account of improper working of AC, due to not giving proper cooling.

8.                 Service regarding due functioning of AC to be provided by the manufacturer or the service centre and as such, certainly liability in this respect remain of OP2 and OP3 only.

9.                 Warranty period of the product in question is of one year. Complainant has produced on record the print of whatsapp messages received from OPs to establish that Op2 and OP3 acknowledged the complaints bearing request Nos.16060603714, 16061704830 and 16062006661 by claiming that an engineer will be sent for repair and in case the complainant is not satisfied with the services of the engineer, then he should share at CDN:-3449, CDN:0576 and CDN:-1443 etc., as reflected in Ex.C2 and Ex.C3. These whatsapp messages were received by the complainant on 6.6.2016; 17.6.2016; 20.6.2016 and 11.7.2016 and as such, certainly contents of complaint and of affidavit Ex.CA of complainant are correct that despite lodging of complaints, which were registered, due services have not been provided by repairing the defects in the AC. Ops have not produced on record any job sheet for establishing that complaints got registered by the complainant through above quoted registered numbers have  been attended by any of its engineer or any of its employee. It is the positive case of the complainant established through complaints and affidavit Ex.CA that despite assurances of sending senior engineer for removal of defects in the AC of improper cooling and of improper functioning,  the same    has not been done. Had really the senior engineer been sent for removing the pointed out defects, then record of job sheets would have been prepared by Op2 and OP3 and same would have been produced, but that is not the position and as such, certainly assertion of counsel for complainant has force that pointed out defects in the AC have not been removed, despite assurances given time and again through whatsapp messages produced on record as Ex.C2 and Ex.C3. The defects complained of within 15 days of purchase of AC as reflected by contents of Ex.C2 and Ex.C3, but for removal of the defects, job sheets neither prepared and nor produced and as such, certainly deficient services provided by OP2 and OP3 for curing the defects in the AC.

10.               It is vehemently contended by counsel for OP2 and OP3 that problems/defects in the AC is not pointed out and nor it is mentioned as to how the AC is not functioning and as such, the complaint is filed on vague and general allegations. That submission of counsel for OP2 and OP3 certainly has no force because after going through para no.2 of complaint and also para no.2 of affidavit Ex.CA of complainant, it is made out that repeatedly defects of improper cooling has been pointed out. Only the mechanic deputed by OP2 and OP3 could have       worked out the defects resulting in improper cooling, but report of such mechanic or engineer has not been produced by OP2 and OP3 and as such, fault lay with Op2 and OP3. Owing to repeated calls given by the complainant to OP2 or OP3, they failed to rectify the defects and as such, certainly complainant has suffered lot of mental tension and harassment, particularly when he had to remain without AC or had to remain content with the improper working of AC. It is also contended by counsel  for Op2 and OP3 that in view of Section 13 of the Consumer Protection Act, 1986, testing of AC in question should have been got conducted by the complainant from an expert or laboratory, which has not been done and as such, complaint is not maintainable. These submissions of counsel for OP2 and OP3 have no force because during the warranty period, responsibility was of OP2 and OP3 to remove the pointed out defects by deputing the mechanic or the service engineer. Deputing of mechanic and service engineer not established and that is why job sheets or copies thereof not produced by OP2 and OP3 on record. Acceptance of contention of counsel for Op2 and OP3 would mean  burdening the complainant unnecessarily with costs of procuring report, particularly when deficiency in fact is on the part of OP2 and Op3 in not deputing the mechanic or the engineer for rectifying the pointed out defects. Question of getting analysis/test report by the complainant would have arisen only if OP2 and Op3 would have rectified the defects for claiming that actually defects do not exist. No documentary evidence in that respect in the shape of job sheet or report of mechanic or the engineer of OP2 and OP3 has been produced and as such, best evidence has been withheld by Op2 and Op3, due to which adverse inference against them liable to be drawn, particularly when law is well settled that technicalities must not stand in the way of granting due relief to a genuine consumer, who is pitted against the mighty/efficient manufacturer of the repute having number of mechanics or engineers at its command. As repair of the AC in question has not been done by OP2 and Op3, despite pointed out defects and as such, complaint deserves to be allowed in terms that repair of AC in question must be carried out within 30 days from the date of receipt of copy of this order, but in case, the engineer of OP2 and OP3 finds that repairs for making the AC in question proper functional cannot be carried out, then OP2 and OP3 must replace the AC in question with new one of same price.

11.               Submission advanced by counsel for OP2 and OP3 to the effect that Ahmedabad Courts alone have jurisdiction in view of the terms of agreement of warranty has no substance at all because he is unable to point out any clause in Ex.R1 for establishing that Courts at Ahmedabad alone will have jurisdiction. Rather, the AC in question was purchased at Ludhiana, defects surfaced therein at Ludhiana and breach of promise of providing due services took place at Ludhiana and as such, virtually whole of cause of action has arisen at Ludhiana and as such, Courts at Ludhiana alone has exclusive jurisdiction. No other point argued.

12.               As a sequel of the above discussion, complaint against OP1 is dismissed, but same is allowed against OP2 and OP3 in terms that they will repair the AC in question for making it due functional within 30 days from the date of receipt of copy of order and in case it is found that repairs cannot be carried out, then liability to replace the AC with new one of same price will be of OP2 and OP3. Compensation for mental harassment and agony of Rs.4,000/- (Rupees Four Thousand only) and litigation expenses of Rs.2,000/- (Rupees Two Thousand only) more allowed in favour of complainant and against OP2 and OP3, whose liability held as joint and several. Payment of these amounts be made within 30 days from the date of receipt of copy of order. Copies of order be supplied to parties free of costs as per rules.

13.                         File be indexed and consigned to record room.

 

         

                    (Param Jit Singh Bewli)                                 (G.K. Dhir)

                                                  Member                                                     President

Announced in Open Forum                                                                  Dated:14.08.2017

Gurpreet Sharma.