Per Smt T. Suneetha, Member:-

This complaint is filed U/s 12 of Consumer Protection Act, Seeking directions on opposite parties to replace the Air Conditioner (A.C) with new one or to pay Rs.91,343/- (towards cost of the A.C) Rs.29,000/-, along with interest on it @ 24% p.a. from 01-01-2012 till date of filing i.e. 26-04-2012 amounting to Rs.2,223/-, compensation for mental agony Rs.60,000/- and court fee Rs.120/-) along with interest @ 24%p.a on the claim amount from the date of filing of the complaint till the date of payment and costs of the proceedings.  The complainant sought for replacement of subject A.C. with new one in alternative to refund. 

2.   In brief the averments of the complaint are hereunder:

          Complainant purchased ‘O’ general 1.5 TN Window A.C. with AX218GNN-WO29899 along with Stabilizer 4KWT 4041 Sl.No.1111252  under bill No.60 dated 01-01-2012 from the 1^st opposite party.  The 1^st opposite party delivered the said AIR CONDITIONER by collecting delivery charges of Rs.150/-.  The complainant found at the time of delivery the A.C. as used one with a new dome and as such he refused to take delivery.  The workers of the 1^st opposite party without giving any warranty card and pucca receipt delivered the A.C and left without fixing the same.  The complainant approached the 1^st opposite party and stated the facts and later the warranty card and pucca receipt were supplied by the 2^nd opposite party.  But the opposite parties have not responded properly for replacement of used A.C. having vexed with the with attitude of the opposite parties the complainant sent a letter to the opposite parties on 05-03-12 requesting to give a new one of company brand or to return the bill amount with interest @24% p.a.  But no response from the opposite parties, the complainant sent a notice through Consumers Development Committee, Guntur on 26-03-12 for requesting the opposite parties to replace the A.C. with new one or to refund Rs.29,000/- with interest @ 24% p.a.  The opposite parties gave a vague reply.  The 2^nd opposite party being the manufacturer and the 1^st opposite party being the supplier of the AIR CONDITIONER are jointly and severally responsible for replacement of the machine as it is under warranty period.  The opposite parties not responding to the requests of the complainant, which amounts to deficiency of service.  Therefore the opposite parties are liable to compensate complainant.  Hence the complaint.    

3.      1^st Opposite party filed its version and is adopted by 2^nd opposite party which is in brief as follows:

        The complainant was ordered to purchase ‘O’ General 1.5 TN Window Air Conditioner (A.C.) with 4KW stabilizer on 01-01-2012 by paying Rs.2,000/-.  The 1^st opposite party delivered & installed the A.C. to the complainant by raising the delivery challan bearing No.60 believing the complainant to pay the remaining amount of Rs.27,000/- by drawing in the A.T.M. from the date of installation the 1^st opposite party requested the complainant for the payment of the due amount of Rs.27,000/- but invain.  After 3 months of the installation of the A.C.  on 05-03-2012 the complainant issued a letter to opposite parties 1&2 alleging that the said A.C. was used one and the said opposite parties are not responding properly for his oral complaints.  The complainant also issued 2^nd notice that the complainant paid Rs.29,000/-.  It is false that the complainant paid the total amount.  The complainant paid the amount of Rs.2,000/- and has to pay the remaining amount of Rs.27,000/- The complainant did not file any evidence pertaining to the payment the said air conditioner and stabilizer except the delivery challan. 

4.      The complainant did not incur any loss and the opposite parties are not responsible for the service and other aspects of the complaint without payment.  The complainant approached Forum with unclean hands hence the complaint is liable to be dismissed with costs. 

5.      The complainant and opposite parties filed their respective affidavits. Exs.A-1 to A-14 were marked on behalf of the complainant.  Exs. B-1 to B-8 were marked on behalf of the opposite parties.    

6.      Now the points that arose for consideration in this          complaint are:      

1.  Whether the complainant is consumer with in the meaning of

     Consumer Protection Act?

2.  Whether the opposite parties committed deficiency of      

     service?

2.  To what relief the complainant is entitled to?

7.      POINT NO.1:- The opposite parties alleged that the complainant is not a consumer since he paid Rs.2,000/- towards advance against the cost of the A.C. Rs.29,000/- at the time of purchase and he was still due an amount of Rs.27,000/- to the 1^st opposite party.  Section 2(1)(d) of Consumer Protection
Act:  

Consumer means any person who -

“Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose;”

          According to the above section the person who have paid the payment in part is also a consumer and can seek relief under the provisions of Consumer Protection Act.  Therefore the complainant is a consumer within the meaning of Consumer Protection Act, 1986. 

8.         POINT NOs.2 & 3:- The complainant’s allegation was that the Air Conditioner delivered by 1^st opposite party is of used one and the 1^st opposite party intentionally delivered the same covering it with new domes and the opposite party did not choose to change the subject AC inspite of informing them on 30-01-12 which is after one month of the purchase i.e. 01-01-12.

9.     The complainant did not mention either in his complaint or affidavit about Md.Yasin S/o.Hanif (3^rd party) inspecting his A.C.  The complainant to prove his allegation filed 3^rd party affidavit i.e. affidavit of Md.Yasin on 21-09-12 in this Forum.  In his affidavit Md.Yasin mention  “On 14^th September, 2012 I went to the petitioner house and examined the Air Conditioner which is put in the wall without connection and by opening the door of the machine found that it is a rebuilt one and the accessories are old one.  The frame which appears new one has got scratches over the same.  The model is O.Genral 1.5 Ton Window bears No.AXZ18GNN-W029899 and the Stabilizer 4K wt 4041 with Sl.No.1111252 is old one and there are no remote controls to operate the same.  It is not a company make it’s a rebuilt one.  Hence I am stating the facts.” 

In his reply to the interrogatories the third party stated on 02-01-12.  The said answer contrary to the contents of the affidavit regarding his inspecting A.C.  In view of said material contradictions and absence of averment in complaint as well as complainant’s affidavits leads us to draw an inference to disbelieve the contents of 3^rd party affidavit and it is a tailored one.        

10.   In these circumstances finding fault with the opposite parties is not proper.  Therefore there is no deficiency of service on the part of opposite parties. Thus complainant is not entitled to any compensation. 

11.   In the result, the complainant is dismissed without costs.  

Typed to my dictation by Junior Stenographer, corrected by us and pronounced in the open Forum dated this the 28^th day of January, 2013.

MEMBER                                                                                  PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant:

For opposite parties: -

PRESIDENT