SRI BIJOY KUMAR DAS,PRESIDENT:-
Unfair Trade Practice and deficiency in service in respect of not providing adequate service to the complainant’s Air Conditioner during the warranty period are the allegations arrayed against Ops.
2. Complaint in nutshell reveals that complainant purchased an Air conditioner from Bharat Electronics, Janapath, Bapuji Nagar, Bhubaneswar on dtd.02.11.2014 by paying an amount of Rs.46,100/. The Air conditioner covers a warranty period of five years. It is alleged that just after three months of purchase of Air conditioner, it was noticed that water is leaking from the said A.C. and on complaint, mechanic of Op No.2 repaired the same but the defects remain unchanged. On further complaint of alleged defect, mechanic of Op No.2 took away the A.C. to their service centre on dtd.01.08.2016 and returned the same on dtd.01.09.2016 without installing the same, OP’s engineer came and installed the A.C. on dtd.06.09.2016, but all on a sudden the A.C. was set fire and became fully defunct. Complainant lodged complaint before the Ops on toll free number, but all went in vain. It is also revealed that as per the warranty card issued by Ops, where the Ops are duty bound to provide free service, but in the present dispute Ops charged cost of the repair vide bill dtd.27.07.2016. It is further alleged that Ops have committed unfair trade practice and caused financial loss and mental agony to the complainant by not rectifying the defects detected in the said A.C. The complaint is filed before this Forum with prayer that a direction may be issued to Ops to repair the A.C. without charging any cost and further warranty be issued from the date of repair and if any defects are detected the A.C. may be replace of same cost of same model or any other model and to pay Rs.25,000/- as compensation for mental agony and financial loss along with cost of litigation.
3. Being noticed, Bharat Electricals, Bhubaneswar(OP No.1) appeared into the dispute through their Ld. Counsels and filed written statement. The written statement contains the preliminary objections on maintainability of the complaint and para wise reply into the allegations of the complainant. OP No.1, in their preliminary objection raised the point of maintainability on grounds of territorial jurisdiction of this Forum and lack of evidence of any manufacturing defects by citing a number of decision of Hon’ble State Commission, Hon’ble National Commission and Hon’ble Supreme Court. In the para wise reply it is averred that Air conditioner was purchased on dtd.02.11.2014 and the warranty on the said AC is valid for one year and on the ‘Compressor’ the warranty extends to four years and vehemently opposed that warranty in every part of the A.C. does not cover the term of five years and categorically denies the allegation of set fire to the A.C. on dtd.06.09.2016, shifted the onus on the complainant to prove his allegations. It is also averred that there is no cause of action against this OP No.1 and no unfair trade practice or deficiency in service committed by OP No.1, accordingly the complaint is to be dismissed with penalty U/S-22 of C.P.Act.
SAMSUNG India Electronics Pvt. Ltd.(OP No.3) on receipt of the Notice appeared through their Ld. Counsel and filed written statement challenging the maintainability of the Complaint and submitting the reply on merit. Op-3 in their written statement challenge the territorial jurisdiction of this Forum by citing different decision of Honbl’e National Commission and Honbl’e Apex Court. The Op-3 denies the allegations, and facts on reply on merit in short ‘reveals that the warranty period of one year on the said A.C. has already been expired, at the time of request for repair and Op-3 is no way liable to provide the complaints under warranty norms the Op-3 further submits that, the call for service request was properly attended and appropriate service has been provided to the Complainant and Complainant with a ulterior motive filed this Complainant which is liable to be dismissed with heavy cost.Though Tulasi Refrigerators (Op-2) received the Notice of the Forum through Regd. Post with A.D., but Op-2 did not prefer to appear into the dispute, hence set ex-parte by this Forum vide order no.13 dtd. 01.09.2017.
4. Heard the ld. Counsel for the Complainant and case of the Op-1 and 3 on merit as non-appears on date of argument and ex-parte hearing against Op-2. Complainant in support of his pleadings filed Xerox copy of retail invoice issued by Op-1 dtd. 02.11.2014, Xerox copy of cash receipt dtd. 27.07.2016 and acknowledgement of service request dtd. 29/07/2016 issued by Op-2. We, perused the complaint, written statement and documents filed by the parties. It is a fact that Complainant purchased an Air Conditioner from Op-1 by paying an amount of Rs. 46,100/- on dtd. 02.11.2014. The disputed A.C. is manufactured by Op-3, SAMSUNG INDIA Pvt. Ltd. It is also a fact that the said A.C. was repaired by Op-2, Tulasi Refrigeration authorized service station of Op-3 as revealed from the copy of the cash receipt/acknowledgement of service request issued by Op-2 on dt. 27-29/7/2016. In the written statement contesting Ops i.e, Op-1 &3 vehmently opposed the maintainability of the complaint mainly on the grounds of ‘Territorial Jurisdiction’ and etc. Considering the contentions this Forum opines that the cash receipt and acknowledgement of service request dtd. 27-29/07/20177776 reveals that the disputed A.C. was repaired and cash is received by the Op-2, Tulasi Refrigerators, Tinimuhani, Kendrapara, which is located within the local Jurisdiction of this Forum. The averments of the contesting Ops are that as the disputed A.C. was purchased from Op-1, the Dist. Forum located on the ‘Khurda’ has the only Jurisdiction to entertain the Complaint, and this Forum lacks the Jurisdiction to entertain the Complainant. On this point, Sec.11(2)(c) of the C.P.Act,1986 is applicable, where the ‘Act’ provides the territorial Jurisdiction of the Forum, where a complaint is to be constituted. The provision of the Sec.11(2)(c) of C.P.Act defines and enables a complainant to file his case “ where the cause of action, wholly or in part, arises”. In the present dispute it reveals from the documents issued by Op-2, Tulasi Refrigerations that the authorized service station, where the A.C. was brought for its repair is located within the local Jurisdiction of this Forum and such repair is undoubtedly a part of the cause of action of the dispute. Accordingly, We are of the unanimous view that the Complaint is maintainable on point of ‘territorial Jurisdiction’ as challenged by the contesting Ops in their written statement and the challenge is not accepted by this Forum as the above provision of C.P.Act, 1986 and the decisions cited by contesting Ops is not relevant to the present dispute. Complainant alleges that during existence of warranty period for 5 years from the date of its purchase of A.C., the Ops did not rectify the defects inspite of repair and not installed the A.C. On the other hand Ops categorically state that the warranty in the disputed A.C. exists for 1 year in all components and 4 years in case of defect in compressor of A.C. It is also the plea of the contesting Ops that the A.C. was purchased on dt. 02/11/2014 and overall warranty expired on dt. 02/11/2015, what-ever service has been provided on payment to the Complainant by Op-2 authorized service centre, it is after expiry of 1 year warranty period i.e, after dt. 02/11/2015. In the present dispute nothing is produced by the Complainant regarding warranty details which is issued by Op-Company of the disputed A.C., when the same is challenged by the Op-Company. Equally it is clear from the documents filed by Complainant that, the disputed A.C. was purchased on dt. 02/11/2014 and the repair of A.C. and cash receipt reflects that Complainant paid Rs. 1263/- on dt. 27/07/2016 and in between dt. 02/11/2014 to dt. 27.07.2016 not a single piece of evidence is produced before the Forum, that the A.C. in question was having any defects or any legal complaint was lodged before the Ops. So in absence of warranty details and in absence of warranty details and in absent of any expert opinion, analysis report or any solid proof of defect during warranty period, we can’t liable the Ops for committing any deficiency in service or Unfair Trade Practice and the prayer of the Complainant is not legally acceptable.
Accordingly, the complaint is disposed of with observation that, if till-date the A.C. of the Complainant remains defunct, the Ops will make it functional and Complainant will pay the cost of the spare parts/components required for repairing and functional of the A.C. It is also suggested that Ops will not charge any labour cost for repair of the A.C. and will install the same in the premises of the Complainant without charging any extra cost.
The complaint is disposed of without cost.
Pronounced in the open Court, this 23rd day of October,2017.
I, agree. I, agree.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
