D.O.F. 28.03.2009

D.O.O. 15.12.2010

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 15^th day of December, 2010.

C.C.No.84/2009

M/s. Soundarya Textiles and Ready Mades,

Thalassery through its Managing Partner

Abdul Rasheed

Through Power of Attorney                         :                  Complainant

Mohammed Ali, S/o. Aboobacker,

Anzar Manzil, Elangode,                                     

P.O. Panoor, Kannur Dist.

(Rep. by Adv. V.R. Nasar)    

Arctic Cooling Solutions Pvt. Ltd.

33/2398C, Rise Arcade,

Kumaranasan Junction,                                      :                  Opposite party

Kadavanthara-Kaloor Road,

Kochi – 682 020

(Rep. by Adv. K.K. Balaram)

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 party to replace the faulty air conditioners with new and properly working air conditioners and ` 1,00,000 as compensation with cost.

          The brief facts of case of complainant are as follows :    Complainant is the Managing Partner of M/s. Soundarya Textiles and Readymades, Thalassery.  The opposite party supplied Blue Star air conditioners to the complainant and installed the same at the premises of Soundarya Textiles on 20.08.2008.  It is started making problems within days and the same was reported to opposite party.  Service Engineers attended the complaint could not rectify the defects.  The cooling is still far below the required range and further heavy water dripping is causing much hardships.  The attempt of the opposite party is to some how cover the warranty period only.  The opposite party did not turn up to rectify the defects.  So complainant sent a lawyer notice to replace the same with new one.  Opposite party replied the notice with evasive and baseless contentions projecting some complaints against complainant.  Complainant suffered much trouble and loss.  They are liable to replace the faulty air conditioners.  Hence this complaint.

Pursuant to the notice opposite party entered appearance and filed version denying the main contentions of complainant.  The brief of the contentions of opposite party is as follows.  The complainant is not a consumer and there is no defect in goods or deficiency in service for negligence on the part of this opposite party.  The opposite party is dealer of Blue Star Air Conditioning System and Refrigeration Products.  The complainant is a commercial establishment having branches in various parts of Kannur District.  The opposite party had supplied air conditioner manufactured by Blue Star Limited to the complainant and installed the same at the commercial premises of Soundarya Textiles.  This complaint is not maintainable as per the Act since it is for commercial purpose.  It is correct to say that the defects of the air conditioners were not rectified. When the Service Engineers came to the premises of the complainant for periodical service as per the warranty condition the complainant pointed out some defects and the same was rectified immediately.  The opposite party provided all the services as per the warranty condition to the complainant.  The service report and preventive maintenance check list will show the same.  The cooling of the air conditioners remain much lesser not because of the fault of opposite party but it is the mistake committed by the complainant.  The air conditioners installed within the premises of the complainant required 74 TR capacity.  Opposite party suggested to have 74 TR capacity to the air conditioners but the complainant suggested to install only 52 TR capacity air conditioners in the shop bill.  52 TR capacity air conditioners were installed as suggested by complainant.  The complainant will not get required cooling effect in the absence of insufficient TR capacity.  Lack of sufficient TR capacity is the main reason for not getting required cooling effect.  Complainant employed private mechanic ignoring the warranty conditions to change the installation set up of the air conditioners and also for shifting the equipments connected with the air conditioner.  It attributed to malfunctioning of the air conditioners.  It is because of this reason the compressor of the air conditioner had gone defective.  But it was replaced by opposite party free of cost.  The air conditioners were not running on the main power supply but was running on alternative power take up on generators. So the air conditioners do not kept the required power supply which also attributed to their malfunctioning. Each air conditioner required MCB equipment to control the power supply as per the scale prescribed by the opposite party’s Company.  But ignoring the suggestion complainant provided only 1 MCB between 2 air conditioners ie., also is effected the smooth functioning.  The servicing records maintained by the service centre will make clear that all the complaints received from the complainant had been attended to and the defects rectified satisfactorily.  The Service Engineers requested the complainant to solve the problem with power supply.  But it was not done by the complainant.  The complainant has not approached this Forum with clean hands.  He is suppressed the material facts before the Forum.  Hence he disentitled from getting any relief under the Act. There is no negligence or deficiency in service on the part of opposite party in providing service to complainant.  Hence to dismiss the complaint. 

On the above pleadings the following issues have been taken for consideration.

1.         Whether complainant is a consumer and the complaint is maintainable?

2.         Whether there is any deficiency on the part of opposite party?

3.         Whether the complainant is entitled for the remedy as prayed in the complaint?

4.         Relief and cost.

The evidence consists of the oral testimony of PW1, DW1, Ext.A1 to A3 and Ext.B1 to B15.

Issue No. 1  :

          Admittedly opposite party supplied air conditioners and installed the same at the shop premises of complainant.  The air conditioners started problem soon but the opposite party could not rectify the defects to the satisfaction of complainant.  Hence opposite party demanded for the replacement of the same.  Opposite party contended that the complainant is not a consumer.  In cantena of decisions the Hon’ble National Commission has taken the view that even if the machinery is for commercial purpose, the purchaser will be a consumer under Section 2(1)(d) during the period of warranty.  In Tata Engineering and Locomotive Co. Ltd., Jamshedpur and others Vs. Bachchi Ram Dangwal and another reported in 2009(2) CPC 322, it was held that a warranty amount to a ‘service’ under the Act and under the provisions of Act disqualifying exception relating to commercial purpose did not applied to consumers of service.  Hon’ble National Commission in another case Larson & Tourbro Limited Vs. Krishnakumar Dhankr and others (2009 (1) CPC (NC) 461) took a clear decision that though the machinery was produced for commercial purpose still purchaser would be a consumer under the Act since it is found to be defective within the warranty period.  Herein the defect of air conditioners occurred immediately after the installation.  In other words it is within the warranty period.  There is no doubt that it is a service under the Act and under the provisions of the Act the disqualifying exception relating to commercial purpose applies to this complaint.  Hence we are of opinion that the complainant is a consumer and the complaint is perfectly maintainable.  Hence issue No.1 is found in favour of the complainant.

Issues No.2 to 4  :

          The allegation in the complaint is essentially related to deficiency in warranty period service.  It is alleged that within no time of installation of the said air conditioners , 5 among them became defective and the Service Engineers attended the complaint could not rectify the defect.  So complainant requires replacement of the air conditioners.

          Per contra opposite party contended that the defects shown by the complainant to Service Engineers were rectified timely.  He has also produced the service reports and preventive maintenance check list in order to prove those defects were rectified.  Opposite party further contended that those defects were temporary and it was functioned normally after removing the accumulated dust particles.  Opposite party further contended that there is leakage after handing over the air conditioners on 20.08.2008.  It can be seen that Ext.B3 to B7 are Service Reports recorded as follows :

PW1 in his cross examination deposed that Ext.B12 and B13 are 6 in numbers and in all the reports the grill temperature shown as 11⁰C.  He is also admitted all the documents Ext.B4 to B13 with its contents.  Further he is deposed that “Cu kÀÆokv dnt¸mÀ«n Fhn-sS-bpT 5 Fkn¡v ]cm-Xn-bp-f-f-Xmbn ImWn-Ã.  {]tXyIn¨v F®T ]d-ªn-«n-Ã.”  It is also admitted by the complainant that he has not complained that there is manufacturing defect to the air conditioner.  Complainant also admitted that the compressor was replaced by opposite party.  Opposite party has contended that compressor was replaced free of cost.  So naturally it can be assumed that the compressor was replaced free of cost.  Ext.B4 to B13 and the admission of the contents of the document by the complainant makes it clear that opposite party had attended the complaint and rectified those complaints time to time.  Ext.B4 to B7 shown only electrical problems.  Anyway there is no question of inference of manufacturing defect. 

          However the most important question to be considered is whether the complainant provided sufficient and required materials necessary for the installation as per the suggestion of opposite party.  Opposite party from the very outset raised the question of TR capacity.  They suggested 74 TR capacities necessary for the better functioning of air conditioners.  Ext.B1 proves that it was suggested by the opposite party from the starting point itself.  The original of Ext.B1 is in the possession of complainant.  He is not produced the same before the Forum.  It is pertinent to note that complainant has kept silence throughout, with respect to the suggestion of TR capacities.  It is a relevant point that TR capacities is one of the basic necessities that make assure the better functioning as a cooler. Whether 74 TR capacity is necessary or not is a question that can be determined only by an expert.  There is no report of the Expert Commissioner before the Forum.  But it has comes in evidence that opposite party suggested to have 74 TR capacities.  But complainant provided only 52 TR capacity.   The burden lies upon, complainant to prove that the TR capacities provided by the complainant are sufficient enough to assure the better functioning of the air conditioner.  Complainant has not taken any steps to take out an Expert Commissioner to get such a report so as to establish that 54 TR capacity suggested by the complainant is sufficient for the smooth functioning of air conditioners.  In the absence of a report of an Export Commissioner on the question of TR capacity it is not possible for the Forum to say that existing TR capacity is sufficient to assure normal smooth functioning of air conditioner maintaining sufficient cool.  So the allegation of the complainant that the cool is less can only be looked into on ascertaining the TR capacity ie required for the functioning of the air conditioner.  Complainant miserably failed to establish his case by adducing cogent and convincing evidences.  Hence the issues 2 to 4 are found against the complainant.

          In the result the complaint is dismissed.

                           Sd/-                         Sd/-                          Sd/-

                            President                    Member                   Member

APPENDIX

Exhibits for the Complainant

A1.  Handing over report (3 Nos.)

A2.  Ledger Account.

A3.  Form 8B (8 Nos.)

Exhibits for the opposite party

B1.    Quotation letter dated 14.11.2007 to Complainant.

B2.    Service Report dated 08.09.2008.

B3.    Service Report dated 15.09.2008.

B4.    Service Report dated 19.09.2008.

B5.    Service Report dated 22.09.2008.

B6.    Service Report dated 28.10.2008.

B7.    Service Report dated 19.11.2008.

B8.    Service Report dated 19.11.2008.

B9.    Service Report dated 21.11.2008.

B10.  Service Report dated 21.11.2008.

B11.  Service Report dated 04.12.2008.

B12.  Preventive Maintenance Checklist dated 05.12.2008.

B13.  Preventive Maintenance Checklist dated 19.01.2009.

B14.  Ledger account (3 pages)

B15.  Handing over report (3 Nos.)

Witness examined for the complainant

PW1.  Complainant

Witness examined for the opposite party

Dileep Kumar C.S.

                                                                          /forwarded by order/

                                                                     SENIOR SUPERINTENDENT