Complainant Smt.Manju Dogra has filed the present complaint against the opposite parties U/S 12 of the Consumer Protection Act (for short, C.P.Act.) seeking necessary directions to the opposite parties to change/replace the A.C. in question in new warranty or to give rebate of Rs.46,500/- alongwith 18% interest to her. Opposite parties be further directed to pay Rs.30,000/- as harassment and mental pain alongwith Rs.15,000/- as litigation expenses to her, in the interest of justice.
2. The case of the complainant in brief is that on 29.06.2017, she has purchased a Split A.C.Voltas Sac 1.5T 185V DYE DC INVTR from opposite party no.1 for Rs.46,500/- for her domestic use. From the 4th day of purchase and installation of A.C., it started creating problem in cooling and also sounded noise hugely. She contacted opposite party no.1 and lodged complaint, but opposite party no.1 failed to resolve the problem of A.C. and also failed in providing service. Thereafter, she also contacted opposite party no.2 on his customer care number and lodged complaint about the problem of A.C. and also send emails on several times, but the opposite parties failed to resolve the problem of A.C. and even linger on the matter on one pretext or the other. She requested the opposite parties to admit her claim, but they refused to do so. Hence this complaint.
3. Opposite parties appeared through its counsel and filed its written reply by taking the preliminary objections that the present complaint is not maintainable and has become in fructuous, as the complaint regarding A.C. has been resolved and A.C. is working properly. On merits, it was submitted that after installation of the A.C. it was running properly and no complaint was made regarding the A.C. at that time of installation or even within a month thereafter. However a complaint was made in the month of August 2017 regarding cooling and noise of A.C, which was resolved by the opposite party on 30.8.2017. The opposite party has provided free service and not a single penny was taken from the complainant. At present the A.C. is working properly and as such complaint is not maintainable. The product of the complainant is under warranty and as per the norms of the company if there is any manufacturing defect or any incurable defect then after the technical advice/report of the expert/technician of after service staff of the company the product can be replaced or repaired as required. Regarding allegations of the noise being loud, as an individual perception complainant must be aware that every machine when in operation produces some sound and similarly A.C.at the time of operation also produces sound. The view of the complainant seems to be very casual in reporting the complaint regarding sound and noise. Though the customer satisfaction is the first prerogative of the opposite parties yet the opposite parties are bound by the certain rules and procedures and as such on the complaint of the complainant the opposite party has send its technical expert on the spot who thoroughly checked the A.C. and after spending many hours at the spot and after checking its cooling and noise came to the conclusion that the A.C. is working normally and some sound is bound to occur while its working and as such he made his report accordingly. However, the perception about cooling and noise of the A.C. which is in the mind of the complainant cannot be removed by the technician of the opposite party. The A.C. of the complainant is perfectly O.K. All other averments made in complaint have been denied and lastly prayed for dismissal of the complaint with costs.
4. Complainant has tendered into evidence her own affidavit Ex.C-1/A alongwith other documents Ex.C-1 to Ex.C-10 and closed the evidence.
5. Ld.counsel for the opposite parties has tendered into evidence affidavit of Sh.Ankush Gupta, Area Service Manager Ex.OP-2, Authority letter Ex.OP-1 and copy of technical audit report Ex.OP-3 and closed the evidence.
6. We have heard the ld.counsels for the complainant and have carefully gone through the record on the file.
7. From the appraisal of the evidence on record, it stands fully proved on record that complainant purchased a Split A.C. Voltas Sac 1.5T 185V DYE DC INVTR from opposite party no.1 for Rs.46,500/- on 29.06.2017 and very soon after installation of A.C., it started creating problem in cooling and also sounded noise hugely. She contacted opposite party no.1 and lodged complaint, but inspite of checking and visit of technician of opposite party no.2, failed to resolve the problem and also failed in providing proper service. On the other hand, counsel for the opposite parties has argued that after receiving the complaint opposite party has sent its technical expert on the spot who thoroughly checked the A.C. and after spending many hours at the spot and after checking its cooling and noise came to the conclusion that the A.C. is working normally and some sound is bound to occur while its working and as such the report is made accordingly. He further argued that the opposite party has not charged even a single penny from complainant and the service was provided free of costs as the product of complainant is under warranty and according to company norms if there is manufacturing defect then after the technical advice/report of the expert of after service staff of the company, the product can be replaced or repaired as required. He further argued that complainant has not produced any expert report on the file to prove that the A.C. in dispute is having some manufacturing defect and prayed that the complaint shall be dismissed with costs.
8. We have sympathetically considered the version of both the parties and after perusing the file minutely, we find that first time problem occurred to the A.C. on 7.08.2017 as per written request of the complainant when she made online complaint to the customer care of opposite party no.2, though before that some oral requests were also made by the complainant, but the documentary proof is only that first complaint was made by the complainant on 7.8.2017 whereas the A.C. was purchased on 29.6.2017 and it means that she made a complaint within a year and as such the product is within warranty and the same is admitted by the opposite parties. The complainant has brought on the file her own affidavit Ex.C-1/A and on oath deposed that there is defect in the A.C. which is not curable and also produced on the file invoice Ex.C-1, emails Ex.C-3 and Ex.C-5 wherein she has categorically mentioned that the A.C. is producing noise and having defect in cooling and even after talking so many times to officials of opposite party company nobody is ready to resolve the problem and defect in A.C. In response to aforesaid emails message the opposite party no.2 sent a reply through email dated 14.8.2017 and dated 19.8.2017 respectively and assured the complainant that the issue is handed over to ASM Mr.Ankush and he will resolve the problem very soon. These are exhibited as Ex.C-4 and Ex.C-6 on the file. Ex.C-7 is technical audit report wherein complainant had given totally unsatisfied remarks to opposite parties. Ex.C-8 is another service report issued by authorized Voltas Service Centre. In this document also customer remarks are written as “unsatisfied service till now from Voltas”
9. In response to the documents placed on the file, the opposite parties has brought on the file some documents and affidavit of Ankush Gupta Area Service Manager of Voltas and a Technical Audit Report wherein the technician of opposite party has mentioned the defect of compressor noise, compressor rubber adjust and after that remarked that A.C. is working properly. But even on this document complainant has remarked totally unsatisfied by service provided till now. Opposite parties themselves have admitted some defect in the A.C. and technician has mentioned in service report i.e. Ex.C-8 that “Comp. Huge Noise.” Technician name is written as “Pardeep Kumar” Now the opposite party has concluded their job to meet out the allegations of complainant by producing the technical report and affidavit. But we think that simply bringing on the file the technical report and affidavit of Area Service Manager is not sufficient to discharge the onus. It is further required to prove the contents of these documents by examining the said engineer/mechanic but in this case, the opposite party has not examined any mechanic or engineer who himself has checked the A.C in dispute to prove that the AC of the complainant is working properly and there is no unusal noise. So far lack of evidence on the part of opposite parties, the version of complainant is that AC is having inherent defect, because despite number of visits of the technicians of opposite parties, the defect could not be cured and moreover the complainant has given unsatisfactory remarks on the service provided by opposite parties. We like to make it clear that the onus, to prove the defect is firstly on the complainant and when product is checked by the engineer/mechanic of the opposite party then it is shifted upon the opposite party to disprove the allegations made by the complainant by examining the product and giving his expert opinion.
10. So far the plea of the opposite parties that the complainant has not produced any expert evidence to prove that the defects, is concerned, it is relevant to mention that in “Nachiket P. Shirgaonkar V. Pandit Automotive Ltd. 2008 (2) CPJ 308 (NC)”, the vehicle started giving trouble within one month of its purchase and the important parts were required to be replaced. It was held by the Hon’ble National Commission that in such case, principle of res ipsa loquitor would apply and the facts would speak themselves and there is no need to refer the vehicle to third party for opinion.
11. We are of the considered opinion that the A.C. in question is virtually having manufacturing/inherent defect which is not curable and as such, complainant is entitled for the relief as claimed.
12. As an upshot of our above detailed discussion, the complaint of the complainant is partly accepted and opposite party no.1 and 2 jointly and severally directed to replace the A.C. in question, with a new A.C of same model and make and in case the same is not available, then to refund the entire sale price of the A.C. i.e. Rs.46,500/- to complainant within 30 days from the date of receipt of copy of order. Opposite parties are further directed to pay compensation Rs.10,000/- and Rs.5,000/- as litigation expenses to the complainant. Entire compliance be made within 30 days from the date of receipt of copy of order, failing which the complainant would be entitled for interest @ 9% per annum on the whole amount i.e.(Rs.46,500/- + Rs.10,000/- and Rs.5,000/-) = Rs.61,500/- from the date of receipt of copy of order till final payment.
13. Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room.
ANNOUNCED: (Rachna Arora) (Rajita Sareen)
December 24, 2018. Member Presiding Member
MK
