PER:
Varinder Pal Singh Saini, Member
1 The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 35 against the opposite parties on the allegations that the complainant purchased one blue star 1.5 Ton Air Conditioner Split-Inverter for sum of Rs. 32,500/- against invoice NO. 2167 dated 30.6.2020 from opposite party No. 2 for his family use and to facilitate them in summer season. As such, the complainant is consumer under the definition of Act. The opposite party No. 2 had given assurance of its best quality and functioning in peak of summer and further promised that in case of any complaint the complainant should inform opposite party No. 2 or directly to opposite party No. 1 company at their customer Care Office and they will make arrangement for removal of all his problems during period of warranty of one year. The said air conditioner was purchased in June, 2020 but it started cooling problem and leakage of inner blower and sprinkle water and complainant with customer service centre by mail lodged with opposite party No. 1 and opposite party No. 1 engineer visited the residence of the complainant on 8.5.2021 against ticket reference No. B210508/00395 and made some adjustment and assured for its correctness but the trouble again erupted for which second complaint was lodged and again some representative of the opposite party visited the residence of the complainant on 19.5.2021 against ticket No. B21051800134 and again made some adjustments. The complainant also sent email to the opposite party No. 1 which was acknowledged by opposite party No. 1. The opposite party engineer visited the residence of complainant on 23.6.2021 against ticket No. B21051800134 but they failed to remove the faults and tried to exhaust the warranty period of one year which is going to expire on 29.6.2021, therefore, the complainant is filing the present complaint on 29.6.2021 having no other alternative. During the summer season of 2021, the complainant could took benefit of air conditioner only for one and half month and remaining period, the complainant and his family suffered from heat, inconvenience insptie of the fact that complainant spent money to facilitate his family. The complainant approached the opposite party No. 1 and requested him to remove the defects or change the defective air conditioner with new one as during the period of one year warranty, it had not shown satisfactory results and remained out of order which further shows that there is some technical or manufacturing defect in the air conditioner sold to the complainant but he refused. They intentionally lingered on the matter with malafide intention to exhaust the warranty period hence necessity has arisen to file the present complaint. The opposite parties No. 1 and 2 are jointly and severally responsible on account of sale/ supply of defective / inferior quality air conditioner to the complainant by charging Rs. 32,500/- for good quality and higher performance set by adopting unfair trade practice and by their above acts of deficiency in service, they have also caused mental tension, harassment and inconvenience to the applicant and his family members besides financial loss. The complainant has prayed the following reliefs:-
- Opposite parties be directed to either change the defective air conditioner with new one of same brand with extended warranty of one year or return a sum of Rs. 32,500/- alongwith interest @ 18% p.a. from date of invoice till final payment.
- Opposite parties be directed to pay compensation of Rs. 1.00 Lacs for causing mental tension, harassment, agony and inconvenience to the applicant and his family members by their acts of unfair trade practice and deficiency in service as detailed above.
- Opposite parties be directed to pay Rs. 10,000/- as litigation charges.
Alongwith the complaint, the complainant has placed on record affidavit of complainant Ex. CW1/A alongwith documents i.e. Self attested copy of Adhar Card Ex. C-1, Invoice Ex. C-2, complaints, acknowledgements, work sheet as Ex. C-3.
2 Notice of this complaint was sent to the opposite parties and opposite party No. 2 appeared through counsel and filed written version by interalia pleadings that the complaint filed by the complainant is not maintainable either in law, facts and circumstances of the case and is liable to be dismissed in limine. The alleged product mentioned in the complaint is of a true and merchantable quality absolutely free from any manufacturing defect. The opposite party/ company/s’s liability arises only when the product is having manufacturing defect i.e. due to usage of defective material/ faulty workmanship. Opposite parties are not liable if the product is damaged due to misuse, negligence, improper or inadequate maintenance. The complainant has suppressed, distorted and concealed vital and material facts germane to the use. Without prejudice to the above, the present complaint is not maintainable since the alleged defective AC has not been got inspected from the approved laboratory by the complainant as is required under Section 13 (1) (c) of the Consumer Protection Act. The opposite parties cannot be held liable unless there is manufacturing defect in the same i.e. due to usage of defective material/ faulty workmanship. There is no problem in the alleged product and the matter resolved to the satisfaction of the complainant. The opposite Party No.2 had neither given any performance guarantee/warranty/assurance regarding the said product to the complainant nor authorized any person to give any guarantee/warranty/assurance in this regard. In case of any defect or problem, the opposite party No. 2 being the dealer has no any responsibility rather the manufacturing company or service centre is responsible for service if required. The electronic product sells on limited warranty/guarantee basis and the service engineer of the company visited the complainant whenever the complaint was lodged and found the product working to the satisfaction of the complainant and there remains no problem in the product to be resolved. If there is any defect, only the manufacturing company shall be held liable or responsible; and not otherwise. The opposite party No.2 being the dealer cannot be held liable or responsible for any alleged defect in any manner. The electronic product sells on limited warranty/guarantee basis and the service engineer of the company visited the complainant whenever the complaint was lodged and found the product working to the satisfaction of the complainant and there remains no problem in the product to be resolved. The complainant never approached the opposite party NO. 2 regarding any defect in the alleged product as itself clear from the contents of the present complaint. The opposite party No. 1/ company manufacturers the largest range of electronics products in India and enjoys the highest brand performance for superior quality, appearance and long life. The products of the company adhere to strict standard of quality and is free from any manufacturing defect. The opposite party No. 2 has denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version, the opposite party No. 2 has placed on record affidavit of Rajinder Kumar Sood Ex. OP2/1 alongwith document i.e. self attested copy of Adhar Card of Rajinder Kumar Sood Ex. OP2/2.
3 Notice of this complaint was sent to the opposite party No. 1 but no one appeared on behalf of opposite party No. 1 and consequently, the opposite party No. 1 was proceeded against exparte.
4 We have carefully gone through the record and heard Ld. counsel for complainant and opposite party No. 1.
5 Ld. counsel for the complainant contended that the complainant purchased one blue star 1.5 Ton Air Conditioner Split-Inverter for sum of Rs. 32,500/- against invoice NO. 2167 dated 30.6.2020 Ex. C-2 from opposite party No. 2 for his family use and to facilitate them in summer season. The opposite party No. 2 had given assurance of its best quality and functioning in peak of summer and further promised that in case of any complaint, the complainant should inform opposite party No. 2 or directly to opposite party No. 1 company at their customer Care Office and they will make arrangement for removal of all his problems during period of warranty of one year. He further contended that the said air conditioner was purchased in June, 2020 but it started cooling problem and leakage of inner blower and sprinkle water and complainant with customer service centre by mail lodged with opposite party No. 1 and opposite party No. 1 engineer visited the residence of the complainant on 8.5.2021 against ticket reference No. B210508/00395 Ex. C-3 and made some adjustment and assured for its correctness. He further contended that the trouble again erupted for which second complaint was lodged and again some representative of the opposite party visited the residence of the complainant on 19.5.2021 against ticket No. B21051800134 and again made some adjustments. The complainant also sent email to the opposite party No. 1 which was acknowledged by opposite party No. 1. The opposite party engineer visited the residence of complainant on 23.6.2021 against ticket No. B21051800134 but they failed to remove the faults and tried to exhaust the warranty period of one year which is going to expire on 29.6.2021, therefore, the complainant is filing the present complaint on 29.6.2021 having no other alternative. During the summer season of 2021, the complainant could took benefit of air conditioner only for one and half month and remaining period, the complainant and his family suffered from heat, inconvenience insptie of the fact that complainant spent money to facilitate his family. He further contended that the complainant approached the opposite party No. 1 and requested him to remove the defects or change the defective air conditioner with new one as during the period of one year warranty, it had not shown satisfactory results and remained out of order which further shows that there is some technical or manufacturing defect in the air conditioner sold to the complainant but he refused. He further contended that they intentionally lingered on the matter with malafide intention to exhaust the warranty period hence necessity has arisen to file the present complaint. The opposite parties No. 1 and 2 are jointly and severally responsible on account of sale/ supply of defective / inferior quality air conditioner to the complainant by charging Rs. 32,500/- for good quality and higher performance set by adopting unfair trade practice and by their above acts of deficiency in service, they have also caused mental tension, harassment and inconvenience to the applicant and his family members besides financial loss and prayed for dismissal of the same.
6 Ld. counsel for the opposite party No. 2 has contended that the complaint filed by the complainant is not maintainable either in law, facts and circumstances of the case and is liable to be dismissed in limine. The alleged product mentioned in the complaint is of a true and merchantable quality absolutely free from any manufacturing defect. The opposite party/ company/s’s liability arises only when the product is having manufacturing defect i.e. due to usage of defective material/ faulty workmanship. He further contended that opposite parties are not liable if the product is damaged due to misuse, negligence, improper or inadequate maintenance. The complainant has suppressed, distorted and concealed vital and material facts germane to the use. Without prejudice to the above, the present complaint is not maintainable since the alleged defective AC has not been got inspected from the approved laboratory by the complainant as is required under Section 13 (1) (c) of the Consumer Protection Act. The opposite parties cannot be held liable unless there is manufacturing defect in the same i.e. due to usage of defective material/ faulty workmanship. He further contended that there is no problem in the alleged product and the matter resolved to the satisfaction of the complainant. The opposite Party No.2 had neither given any performance guarantee/warranty/assurance regarding the said product to the complainant nor authorized any person to give any guarantee/warranty/assurance in this regard. He further contended that in case of any defect or problem, the opposite party No. 2 being the dealer has no any responsibility rather the manufacturing company or service centre is responsible for service if required. The electronic product sells on limited warranty/guarantee basis and the service engineer of the company visited the complainant whenever the complaint was lodged and found the product working to the satisfaction of the complainant and there remains no problem in the product to be resolved. He further contended that if there is any defect, only the manufacturing company shall be held liable or responsible; and not otherwise. The opposite party No.2 being the dealer cannot be held liable or responsible for any alleged defect in any manner. The electronic product sells on limited warranty/guarantee basis and the service engineer of the company visited the complainant whenever the complaint was lodged and found the product working to the satisfaction of the complainant and there remains no problem in the product to be resolved. He further contended that the complainant never approached the opposite party No. 2 regarding any defect in the alleged product as itself clear from the contents of the present complaint. He further contended that the opposite party No. 1/ company manufacturers the largest range of electronics products in India and enjoys the highest brand performance for superior quality, appearance and long life. The products of the company adhere to strict standard of quality and is free from any manufacturing defect.
7 We have carefully gone through the rival contentions of parties.
8 In the present complaint it is not disputed that the complainant has purchased one AC i.e. blue star 1.5 Ton air Conditioner Split-Inverter for a sum of Rs. 32,500/- vide Ex. C-2. The main issue in the present case is that the AC in question started giving problem from the very beginning and the complainant has made complaints and the complainant has placed on record complaints dated 19.5.2021, 23.6.2021, 8.5.2021 Ex. C-3 which shows that from within one year from the purchase of AC the AC started giving problems. Thereby definitely there is manufacturing defect which was not removed by the opposite parties. Ld. counsel for the opposite party No. 1 argued that expert opinion has not taken by the complainant. On the other hand, when the complainant has taken the stand of some manufacturing defect it was the bounded duty of the opposite party No. 1 to appoint expert to take opinion regarding the defect. The opposite party No. 1 has not appointed any technical expert which is easily available to the opposite party No. 1 to prove that there was no manufacturing defect in the AC in question and as per citation 2014(3) CLT Krishanpal Singh Vs Tata Motors Ltd. 177 it has been held by the National Consumer Disputes Redressal Commission, New Delhi that manufacturing defect (Car) Onus of proof. Held. When the complainant had to visit the service station repeatedly for repairs. Normally, in such like situation, the onus of proof should be shifted to the side of the opposite party when the manufacturing defects are visible on its face and the opposite party has no explanation to make, the manufacturing defect, must be assumed.
9 It is admitted fact that the complainant is approaching the opposite parties several times from the very start. The record shows that the complainant has purchased the AC in question on 30.6.2020 and the complainant has made complaint to the opposite party on 19.5.2021, 23.6.2021, 8.5.2021 which is Ex. C-3. It all shows that there is some inherit defect in the AC in question. The perusal of record shows that defect in the AC in question occurred within one year from purchase of AC in question. The defect in the AC in question occurred within one year i.e. within warranty period and if any defect occurred during the warranty period the same is to be replaced. In this regard, Hon’ble Delhi State Commission, New Delhi in case titled as Jugnu Dhillon Vs. Reliance Digital Retail Limited 11(2014) CPJ page 17 has held that
“failure of compressor within 2-3 months of its purchase itself amounts to manufacturing defects- when any company stopped manufacturing particular model under these circumstances only way left is to refund of money alongwith interest- Product found to be defective at the very outset- It is always better to order for refund of amount.”
Hon’ble Supreme Court in case titled Hindustan Motors Limited and Anr. Vs. N.Shiva Kumar and Anr. (2000) 10 Supreme Court Cases, 654 has held that
“when any company had stopped manufacturing the particular model, under those circumstances, there is no other way except to refund of money alongwith interest, compensation and cost.”
In the instant case, the A.C in question started giving troubles within warranty period. In this regard, Hon’ble National Commission, New Delhi in case Shirish Vs. C.S.Rahalkar (Dr) in 2010(3) CLT page 209 has held that
“the respondent had paid Rs.32,500/- for an original Amtrex air –conditioner and not an assembled air-conditioner. The State Commission has rightly held the petitioner guilty of Unfair Trade Practice as defined under section 2(1) (i) ® of the Consumer Protection Act and consequently, directed the petitioner to compensate the respondent for the same.”
10 In view of above discussion, the present complaint is allowed and the opposite party No. 1 is directed to replace the AC in question with same make and model or to refund the price of the AC in question. The complainant will hand over the AC set in question to the opposite party No. 1 at the time of compliance of order of this commission on the part of the opposite party No. 1. The complainant is also entitled to Rs. 7,500/- as compensation on account of harassment and mental agony and Rs. 5,000/- as litigation expenses from the opposite Party No. 1. The present complaint is dismissed against the opposite party No. 2. Opposite Party No. 1 is directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @9% per annum, on the awarded amount from the date of complaint till its realisation. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission and due to COVID-19. Copies of the order be furnished to the parties as per rules. File is ordered to be consigned to the record room.
Announced in Open Commission.
19.03.2024
