Delhi

North

CC/9/2021

UMESH SINHA - Complainant(s)

Versus

BLUE STAR & ORS - Opp.Party(s)

ANIL, ANUBHAV & ROHIT

12 Apr 2024

ORDER

         District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

Consumer Complaint No.:9/2021

In the matter of

 

Sh. Umesh Sinha

S/o Sh. R.N. P. Sinha,

259/B, Patel Nagar-II,

Ghaziabad, Uttar Pradesh.                  …                                   Complainant

                                                          Vs

Blue Star Limited

Kasturi Buildings,

Mohan T Advani Chowk

Jamshedji Tata Road,

Mumbai-400020, Maharashtra. 

 

Also at:

Elegance Tower, 1^st floor,

Jasola District Centre,

New Delhi-110025.                                       …                                Opposite Party No.1

 

Flipkart Internet Private Limited,

Building Alyssa, Begonia & Clove

Embassy Tech Village, Outer Ring Road,

Devarabeesanahalli, Village,

Bengaluru, Karnataka-560103.            …                               Opposite Party No.2

 

Consulting Rooms Private Limited

202, DBS Business Centre FF,

World Trade Tower, Barakhamba Lane,

Connaught Place, New Delhi-110001.

 

Also at:

26, K G Marg,

Connaught Place,

New Delhi-110001.                                       …                              Opposite Party No.3

ORDER

12/04/2024

Ashwani Kumar Mehta, Member:

 

(1)      The present complaint has been filed under Section 35 of the Consumer Protection Act, 2019. The brief details of facts, as alleged by the Complainant in the Complaint in hand, are that:-

 

(a)    On 22.05.2020, the complainant placed an order of Blue Star 1.5 Ton 3 Star Split Inverter AC - White, Gold, from  App of OP no. 2, on payment of Rs.33999/- vide invoice dated 24-05-2020 which was delivered on 25.05.2020 but no installation was done. At the time of placing the order, the complainant had also opted a policy amounting to Rs.499/- for the installation of said AC. On dated 26.05.2020, the Complainant received a mail from the OP No. 2 regarding the Installation and Demo of said product assuring that the installation and Demo of product shall be done on 29.05.2020 but it was not done.

(b)     On dated 27.05.2020, the OP no. 2, sent 2 E-mails to the complainant stating that the installation of the product has been cancelled by OP No.1 and after some time, OP no. 1 at 05:25 PM sent an apology letter to complainant for the inconvenience caused due to non-installation of AC.

(c)      On dated 30.05.2020, again a mail received from OP no. 1 for installing the AC and the executive came at complainant's home on 31.05.2020/next day stating that someone will attend the complainant shortly, contrary to the fact that product was installed at his home by the executive. This shows the negligent unprofessional practise of the OP no. 1.

(d)     On 26.05.2020, the installation and demo was scheduled for 29.05.2020 through email of OP-2 but on 27.05.2020, it was cancelled by OP no.2 without stating any of reason. The client was continuously communicating with both the OP's No.1 & 2 regarding installation but all the efforts went in vain.

(e)     At last, the AC was installed on 01.06.2020 which was major delay on the part of both Opposite Parties and after the installation also, the OP no.2 was not updated regarding the status of the above said product because on 10.07.2020, the representative of OP no.2 called the complainant regarding the product and asked the installation status.

 

2.       It has further been alleged that from the month of August, the said product started giving problems and the complainant registered various complaints to the OP No. 1 through mails against which various tickets were issued to the complainant but some of them were got cancelled also without stating any kind of reason. Whenever any technician arrived on behalf of OP no.1, he stated different problems in the said product and after rectifying the said issue, a new problem occurred in the product. After many complaints, the complainant requested the OP No. 2 to replace the said product or refund the amount to the Complainant because a faulty product was delivered. It has also been alleged that the conduct of the OP no.1 and OP no.2 amounts to deficiency in service on part of OP no. 1 and 2 due to which the complainant has suffered financially, emotionally, physically, mentally etc. for no fault. Therefore, the complainant sent a notice through speed post on dated 10.12.2020 but no reply or response was received from OPs till date.

 

3.       Thereafter the Complainant has filed this complaint praying for directions  to OPs to:

1. Replacement and refund;
2. pay Rs.50,000/- as compensation for complainant and also Rs.50,000/- for the legal expenditures.

 

4.       The complainant has also submitted Copy of Invoice dated 24-05-2020, Copies of emails exchanged between the parties, copies of Field Service Reports/Job Sheets relating to the faults of the AC, copy of legal Notice and its postal receipt to substantiate the allegations levelled in the complaint.

 

5.       Accordingly, notices were issued to the OPs and in response, the OPs have filed their respective replies which are discussed below.

 

6.       The OP-1 has filed reply stating that it is surprising that despite the sale of the said product by Consulting Rooms Pvt. Ltd., the same has not been made as proper party. It has also been contended that if the complainant had issues with the said product since beginning, why no return/refund request was ever made by the Complainant. It has also been pointed out by OP-1 that the Complainant wants to enjoy the compensation/refund and also to keep a defective product itself which is evident from the prayer clause of the complainant. This Commission cannot be used by the complainant to enrich himself without any just and equitable ground. The entire e-mails of correspondence attached with this complaint between opposite parties and complainant clearly shows that the opposite party no. I has been pro-active on the requests/complaints made by the complainant and have been replied back with promptness.         The OP-1 has also filed Para-wise Reply to the allegations as under:-

 

(a)     The contents of Para No. 1 are matter of record and hence, needs no reply.

(b)     The contents of Para No. 2 are matter of record and hence needs no reply.  The first ticket raised with Respondent No. 1 for the purpose of installation was 120052500929 and the pin code associated with it was 734014 i.e. Bagdogra, Darjiling and due to this reason,  installation was delayed.  However, when the second ticket no. 120053001330 was raised, the installation was done on the same date. OPs were in complete touch with complainant through mails and promptly reverted to the queries raised by the complainant.

(c)      The contents of Para No. 4 are self-contradictory and frivolous, hence, denied. As per the Complainant’s own documents attached as Annexure B with the complaint (Pg. 18), the installation was supposed to be done on 29.05.2020, however, the installation was done by 01.06.20. Thus, there was no major delay as alleged by the Complainant. The call made by O.P. No. 2 is denied for want of knowledge. The rest of the contents regarding allegations against authorized representative, who came for installation without proper ID or uniform, is denied for want of knowledge.

(d)     The contents of Para No. 5 partly matter of record regarding the complaint raised by the complainant, hence needs no reply. The allegation that old/defective AC was provided to the complainant is false, frivolous and incorrect and hence denied. The condenser would have been dirty or choked and would have been detected at the time of installation and hence the averments made by complainant is baseless and false. The condenser can get choked or dirty due to various factors and partly because of environmental conditions. If less heat is rejected to the surrounding area, the heat accumulates in the condenser, thus causing choked or dirty condenser.(Same in the reply) However, the O.P. No. 1 promptly addressed the issue and rectified the product as the same was within the warranty.

(e)     the contents of Para No. 6 are matter of record and hence, needs no reply. The issue was promptly handled wherein the complaint was raised on 04.08.20 and the O.P. No. 1 rectified the issue on 05.08.20. Hence, there is no deficiency of service on part of O.P. No. 1.

(f)      the contents of Para No. 7 are denied for want of knowledge. The O.P. No. 1 nowhere claimed that inverter AC does not require a stabilizer. The inverter AC though act as stabilizer, they have limited range and if fluctuations go beyond their range, it can harm inverter AC too.

(g)      the contents of Para No. 13 are partly incorrect and false to the extent that no request was made to replace the product or for refund and hence denied. Further, the rest of contents of Para No. 13 are matter of record and hence, needs no reply.

(h)     the contents of Para No. 14 are false, frivolous and malicious, hence, denied. The mail communication between OP No. 1 and complainant shows that the OP No. 1 has always been proactive and prompt and never shown any deficiency of service.

 

7.       The OP-2 has filed reply stating that:-

(a)     at the very outset, the entire complaint is nothing but specific and centric to the manufacturer and its authorized service centre for not providing after sale service for the product covered under the manufacturing warranty in the present complaint and the same is evident from bare reading of entire complaint. Thus, the Complainant has wrongfully impleaded Opposite Party No. 2 under present complaint and hence, the present complaint deserves to be dismissed against the Opposite Party No. 2 at the first instance.

(b)     The complainant has presented the complaint against the Opposite party no. 2 based on false facts. The real facts are that the Opposite Party No. 2 merely operates an online platform and all the products on the platform are sold and supplied by independent third party sellers. In the instant matter also, the product was purchased from the third party seller/Opposite party no. 3, who had sold the product to the complainant and supplied it through third party logistic service provider. Thus, the Opposite Party No. 2 never came in possession of the ordered product at any point of time. Further the complainant directly contacted the manufacturer with the alleged grievance and the same is evident from the copy of annexures attached with the present complaint. Further when the complainant raised his grievance with the Opposite party no. 2, the Opposite party no. 2 duly requested the complainant to contact the manufacturer and its authorised service centre. The product of the complainant is under the manufacturing warranty and the responsibility to provide after sale services lies with the manufacturer. Any grievance which the complainant has, is only against the manufacturer and its authorized service centre of the product as it is the responsibility of manufacturer and its service centre to provide aftersales services.

(c)      It is the seller of the Product that provides 10 days replacement Policy in addition to the manufacturer's warranty wherein buyers can claim replacement of the product if the product qualifies the quality check test arranged by the seller from the expert technicians. Thus, if the product is actually found defective by the seller within the said 10 days replacement policy, the seller provides replacement to the buyer. However, in the instant matter, the Complainant has raised the alleged grievance and that too with the manufacturer after using the product for 2 months. It is evidently clear that the Complainant has miserably failed to avail the 10 days replacement Policy that is provided by the Seller of the Product. Once this 10 days replacement policy lapses away, the sole responsibility to provide resolution lies upon the manufacturer and its authorised service centre. The complainant himself has approached the manufacturer for alleged manufacturing deficiencies in the product as they were the right concerned authority in the instant matter. The grievance of the Complainant should have been only against the Manufacturer of the product and/ or authorized service centre for not providing after sale services to its customers. Even if we believe any averment made by the complainant to be true, even then that the Opposite Party No. 2, (being mere an intermediary and not the manufacturer/Authorised Service Centre of the product sold to the Complainant) in no way, assumes liability for defect in the goods, if found any. Hence, there is no cause of action against the answering Opposite Party No. 2.

 

8.       The OP-3 has also filed reply stating that:-

(a) the whole grievance of the complainant pertains to not getting    after sales services for the product. Opposite Party No. 3 is an online reseller registered on 'Flipkart.com'. The Opposite Party No. 3 is not the manufacturer but an online reseller and the products sold by Opposite Party No. 3 carries warranty issued/provided by the respective manufacturers against manufacturing defects subject to the terms & conditions determined by the manufacturers only. Irrespective of the warranty provided by the manufacturer, as a goodwill gesture the Opposite Party No. 3 provides 10 (Ten) days return/replacement policy to its customer, in case, there is any issue with the product which cannot be rectified.

(b) The role of the Opposite party no. 3 comes to an end once this 10 days replacement policy lapsed. However, in the instant matter the Complainant had raised his grievance related to the product in issue after using the product for two months and that too, he himself contacted the manufacturer i.e. Opposite party No. 1 for the purpose of providing after sale services during the warranty period by the manufacturer, with the alleged issue in the Product as the Complainant has acknowledged that they are the right concerned authority to address the alleged issue.

(c) Moreover, the Complainant never contacted the Opposite Party

No. 3 for any grievance and the Opposite Party No. 3 is unable to ascertain the authenticity of the grievance raised by the complainant. Thus, the Opposite Party No. 3 cannot be made liable for any subsequent defect in the product as the dispute, if any, is only between the complainant and the manufacturer for not providing after sale services for the product under manufacturing warranty. Therefore, the Complaint filed by the Complainant is liable to be dismissed against the Opposite Party No. 3.

         (d)   There has been no dispute contemplated under the Consumer

     Protection Act between the Complainant and the Opposite Party  

    No. 3 as the Opposite Party No. 3 is not the manufacturer of the

    product sold to the Complainant and has no facility or knowledge

    to ascertain whether the product in issue in the present Complaint

    is defective or has manufacturing defects. Therefore the reliefs

    prayed for by the Complainant against the Opposite Party No. 3 is     

    wholly unreasonable and unsustainable in law and the Opposite

    Party No. 3 is not liable to pay any compensation to the

    Complainant.

      (e)   Dealer or retailer cannot be held liable for defect in the   

             Goods/products in view of the legal position laid down by Apex    

             Court in "Hindustan Motor Ltd. and another Vs. N. Sivakumar  

             (2000) 10 SCC 654" and in "Abhinandan Vs. Ajit Kumar Verma and

             Ors. (2008) CPJ336 (NC)" and hence, this complaint is not    

              maintainable against Opposite Party No. 3.

 

9.                 The Complainant has also filed rejoinder to the replies of OPs-1, 2 & 3 and evidence by way of Affidavit affirming the allegations levelled in the complaint.  The OPs have also filed their respective evidences.  Written arguments have also been filed on behalf of the Complainant and OP-2 & OP-3. The parties have also led oral arguments.

10.               The Complainant has also filed copies of the following judgments in the registry of this Commission on 29.05.2023 after the arguments:

1. M/s Daikin Air Conditioning India Private Limited Vs. Mandeep Kaur [FA No.58/2015 decided on 25.03.2015 by the State commission, Chandigarh] wherein it has been observed that “keeping in view the facts and circumstances of the case, we are of the considered view that the District Forum was right, in allowing the complaint, as stated above. The District Forum was, however, required to direct the complainant to return the A.C. to the Opposite Parties, when it directed the refund of the price thereof but it inadvertently failed to do so. By way of clarification, it is made clear that the respondent/complainant shall return the A.C. to the Opposite Parties, at the time of refund of the price thereof and payment of the other amounts awarded. Hence, the order passed by the District Forum, being based on correct appreciation of evidence and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission, and is liable to be affirmed, subject to the aforesaid clarification.”

 

2. Sony Shree Geeta Vs. Ram Mehar Chalia [RP No.1109/2015 decided on 30.04.2015] passed by Hon’ble NCDRC, wherein it has been observed  that:-

“ 2. In case the compressor does not work properly, the entire machine cannot work. This is strange that this is a petty amount of Rs.27,500/- only. Counsel for the petitioners himself admits that the compressor costs about Rs.15,000/-. Instead of replacing the defective air-conditioner, they have preferred to file a Revision Petition before this Commission.

3.  

4. This is a general complaint among the people that the air-conditioners installed in various places, do not work properly. During the summer season, the abrupt failure of the A.C. machine causes harassment, mental agony, anger, frustration and sadness. It entails a lot of time and extra amount to straighten up the problem. Only the wearer knows where the shoe pinches.”

 

3. Judgment passed by Hon’ble Supreme Court of India in the case titled as Hindustan Motors Limited Vs. N. Siva Kumar [MANU/SC/1841/1999], wherein it has been held that:-

 “4 In this situation, we are left with no alternative except to direct that the order passed by the State Commission for the refund of Rs.1,77,200/- along with interest at the rate of 12 per cent from the date of the complaint till actual payment, together with a sum of Rs.50,000/- as compensation for mental pain and agony, be complied with as we are fully satisfied, on the facts of the case, that the Appellants had sold a defective car to the Respondent and the offer of the Appellants for repairs including replacement of a new engine block will not be a substitute for a new car which the Respondent legally deserve to be supplied. The order of the State Commission for payment of Rs.3000/- towards costs is also maintained.

& 5. The observations of the National Commission to the  effect that “ An apprehension has been expressed by the dealer that the burden of this may ultimately fall upon the dealer. We make it clear that for the manufacturing defects in the vehicle, the dealer cannot be held liable. The liability must be borne by the manufacturer.” are also maintained.

4.  Jugnu Dhillon Vs. Reliance Digital Retail Ltd. [FA No.359/2022  decided     on 11.02.2014] passed by Hon’ble SCDRC, Delhi wherein it has been held that:-

 14. Taking overall view of the matter, we are of the opinion that in the above mentioned circumstances where the AC have become defective immediately after purchase (in this case because for three months AC remained un-operational due to winter season) in that circumstances the agony of the consumer cannot be imagined when the consumer had purchased something for making its life better and instead of making her and family members life comfortable the consumer is put into much harassment and mental agony.

15. This Commission on number of occasions have reiterated that in the event when a product is found to be defective at the very beginning, it is always better to order for the refund of the amount because replacement of the product will never satisfied the consumer because the consumer had lost faith in that company’s product and if the repaired product is again returned to the consumer and if develops the defect again then the consumer will be put to much larger harassment because he had to fight another bond of litigation which will be highly torturous.

11.     Accordingly, the complaint has been examined in view of the facts of the case and averments/documents/Evidence put forth by the complainant & OPs and it has been observed that:-

1. The product was purchased on 24-05-2020 and was installed on 01-06-2020 (after 9 days) in the peak summer season inspite of making payment of Rs.499/- by the complainant which reflects lack of coordination between the OP-1 and OP-2 and amounts to deficiency of service. Though OP-1 has contested in reply to para no.4 of the complaint that there was no major delay in the installation admitting that there was delay but it was not major. It may not be a major delay for the OPs but this delay is definitely not-tolerable for the consumer point of view who has also paid the installation charges at the time of booking of AC with the expectation of timely installation to enjoy the comfort of AC in the peak summer.
2. The OP-1 has also contended that the entire correspondence/emails attached with the complaint between opposite parties and complainant establishes that the opposite party no. I has been pro-active on the requests/complaints made by the complainant and have been replied back with promptness. However, we are of the opinion that replying emails with promptness does not dilute the gravity of deficiency on the part of OPs unless or until the complaint/grievance of the consumer is resolved upto the satisfaction of the consumer.
3. The AC was installed on 01-06-2020 and the complaints of defects/unsatisfactory performance was lodged with the OP-1, as per the job sheets filed by the complainant,  as under:-

Date of complaint	Symptoms	Defects	Action
04-06-2020	21	Condenser dirty or choke	Condenser coil cleaned
04-08-2020	38	Eeprom Chip improperly fixed	Wiring error rectified
05-08-2020	10	PCB faulty	Replaced Odn PCB
29-08-2020	34	Sensor Error	Sensor checked replaced
11-09-2020	EC	Leakage/gas leakage	Unit N-2 Flushed & Recommissioned

Since these Field service reports/job sheets indicating the faults are not in dispute, it is sufficient to conclude that the product was having problems immediately after the day of installations and whatever, averments have been made by the OP-1 regarding removal of defects are just to cover up its deficiency of service and harassment to the consumer caused by the defective product sold by the OP-1. The observations made in the judgment discussed under para 10 above, are relevant in the matter which stipulates that “where the AC have become defective immediately after purchase, in that circumstances the agony of the consumer cannot be imagined when the consumer had purchased something for making its life better and instead of making her and family members life comfortable the consumer is put into much harassment and mental agony.”

d)       The Complainant’s prayer for the replacement and refund both, indicates that he wants to keep a defective product also which is not reasonable. The complainant can either seek refund or replacement. In view of this position, the observations made in the judgment discussed under para 10 above, are relevant in the matter which stipulates that “in the event when a product is found to be defective at the very beginning, it is always better to order for the refund of the amount because replacement of the product will never satisfied the consumer because the consumer had lost faith in that company’s product and if the repaired product is again returned to the consumer and if develops the defect again then the consumer will be put to much larger harassment because he had to fight another bond of litigation which will be highly torturous”.

12.               In view of the above observations, we are of the considered view that the complainant has suffered directly due to deficient service of the OP-1 (M/s. Blue Star Limited) in terms of the deficiency defined in the Act which includes  any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained in relation to any service and includes any act of negligence or omission or commission by such person which causes loss or injury to the consumer. Besides, deficiency of service on the part of OP-1 has also caused mental agony and harassment to the complainant. However, no deficiency in service has been observed on the part of OP-2 & OP-3.

 

13.               Therefore, we feel appropriate to direct the OP-1 (M/s. Blue Star Limited) to:-

a.       refund Rs.33999/- (Rupees Thirty Three Thousand Nine Hundred Ninety Nine Only), to the complainant along-with interest @9% from 24-05-2020 till the date of payment within 30 days from the date of receipt of this order;

b.       refund Rs.499/-(Rupees Four Hundred Ninety Nine Only) to the complainant along-with interest @9% from 24-05-2020 till the date of payment within 30 days from the date of receipt of this order;

c.       pay a sum of Rs.50,000/- (Rupees Fifty Thousand  only)  to the complainant towards the harassment, mental agony and hardship suffered by complainant due to the deficiency in service.

14.     It is clarified that the aforesaid amount shall be paid by the OP-1 to the Complainant within 30 days failing which OP-1 shall be liable to pay interest @12% per annum on the entire awarded amount from the date of expiry of 30 days period.

15.     The complainant shall return the product in question, to the OP-1 on receipt of the amount as ordered above.

16.     Order be given dasti to the parties in accordance with rules. Order be also uploaded on the website. Thereafter, file be consigned to the record room.

 

ASHWANI KUMAR MEHTA                                      DIVYA JYOTI JAIPURIAR

                                                         Member                                                                          President

                                                      DCDRC-1 (North)                                                     DCDRC-1 (North)