BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

                                                                   Complaint  No.153 of 2018

                                                                   Date of Instt. 10.04.2018

                                                                   Date of Decision: 24.09.2019

Smt. Vipan Kumari w/o sh. Lakhwinder Singh Kothi No.271, Raja Garden, Kapurthala Road, Jalandhar City, Punjab.

                                                                             ..........Complainant

Versus

1.       Blue Star Limited through its Executive Director, No.9, Bazullah Road, T. Nagar, Chennai-600017, India.

2.       Proprietor, Kohli Digital Home, 13-14, Sanjay Gandhi Market, Jalandhar City, Punjab.

                                                                           ….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Sh. Karnail Singh              (President)

                              Smt. Jyotsna                      (Member)

Present:        Sh. A. K. Bazaz, Adv. Counsel for the Complainant.

                             Sh. M. S. Narula, Adv Counsel for the OP No.1.

                   OP No.2 exparte.

Order

                             Karnail Singh (President)

1.                The complainant has filed the instant complaint, wherein alleged that the OP No.1 is manufacturer of the Air Conditioners, whereas OP No.2 is the authorized dealer of the products manufactured by the OP No.1. The complainant was allured by the advertisements displayed/circulated/published by the OPs, whereby claimed that ACs manufactured by OP No.1 are World Class product in quality and stands rated as five star and accordingly, the complainant made a mind to purchase two split ACs and accordingly, the complainant purchased the same on 23.12.2016 after making a payment of Rs.80,000/-, vide Bill-cum-Cash Memo No.4873 dated 23.12.2016. The OP No.2 alongwith the bill-cum-cash memo also handed over a booklet published by the OP No.1, which also contained the warranty certificates. Both the Split ACs were fitted/installed by the OP No.2 at the residence of the complainant in two separate bed rooms and the employees of the OPs verbally conveyed the complainant that as and when these ACs are put to use in the summer season, if any difficulty is faced the complainant may intimate to the OP No.2.

2.                That the Split ACs referred in above para were installed by the OP No.2 in the month of December 2016 i.e. when the climate is already cool and there was no need to support of the Air Conditioner to maintain the temperature below the average room temperature. However, when both the split ACs were started in the last week of April 2017, it was noticed that one split AC bearing No.63229968270-61037 BI-5HW18ZAWTX-3A40050028553 and BI-5HW18ZAWTX16A0207616A02076       is not giving any cooling effect. After few days, the employees of the OP visited the house of the complainant and after testing stated that its gas stand leaked and as such, gas shall be filled. The complainant argued with visiting employees of the OP No.2 that as gas has leaked, it proves that there is a defect in the Air Conditioner, therefore, the AC may be replaced. Anyhow, the employees of OP No.2 insisted for filling up of the gas on the plea that as the AC was not put to use for 5-6 months, therefore, sometimes the gas evaporates. The gas was filled and the AC started working. Hardly one month has passed of date of filling up the gas in the month of May 2017, the Split AC again stopped functioning as it stopped releasing cool air. Again the complainant contacted the OP No.2 and insisted to change the AC as it is difficult for complainant to time and again visit the OP No.2 for genuine cause besides the complainant had to suffer humiliation at the hands of her guest, who has to stay in the room. But the OP No.2 insisted for filling up gas again and accordingly, the gas was again filled in the AC by the employees of OP No.2. Thereafter, about 1½ months passed, the AC again started giving same problem and complainant again make a complaint to the OP, who sent the employee and the employee again insisted for filling by the gas, but the complainant stopped him, rather make a request to replace the AC because it has manufacturing defect, but they went away without making AC in running condition. The complainant lodged a written complaint by email to OP No.1 and complaint number was issued to the complainant 201710261076, despite that complaint, none has come present to replace the AC and even thereafter, the complainant sent numerous emails dated 12.12.2017, 16.12.2017, 28.12.2017, 02.01.2018, 07.01.2018, 27.01.2018 and 30.01.2018, but all in vain and as such, the act and conduct of the OPs is tantamount to deficiency in service, negligence and unfair trade practice, which gave a cause of action to file the present complaint with the prayer that the complaint of the complainant  may be accepted and OPs be directed to replace the defective Split AC and installed, a new Split AC at their own cost at the same site where the defective Split AC was installed and further, OPs be directed to pay compensation of Rs.90,000/- for the mental agony, harassment, inconvenience and loss of reputation and further, OPs be directed to pay cost of the complaint.

3.                 Notice of the complaint was given to the OPs, but despite service OP No.2 did not bother to appear and ultimately, OP No.2 was proceeded against exparte, whereas OP No.1 appeared through its counsel and filed written reply, whereby contested the complaint by taking preliminary objections that the present complaint is liable to be dismissed as the same suffers from suppresio falsi and suggestio vary and further alleged that the complaint under reply is not maintainable and is liable to be dismissed as the applicant has attempted to misguide and mislead the Forum and further averred that no cause of action ever accrued to the complainant to file the present complaint. It is further alleged that the complainant purchased the product Split AC after thoroughly considering the product at his own free will and consent and further submitted that neither the answering respondent nor the respondent No.2 did any act of coercion with the complainant while making the decision of purchase. It is further alleged that the answering respondent rendered services to the complainant in the past and will do the same in future in accordance to the terms and conditions of the warranty of the concerned product. On merits, the factum in regard to purchase of two Split ACs by the complainant from authorized dealer OP No.2 is admitted fact, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

4.                Rejoinder not filed.

5.                In order to prove the case of the complainant, the counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA alongwith some documents Ex.C-1 to Ex.C-10 and then closed the evidence.

6.                Similarly, counsel for the OP No.1 tendered into evidence affidavit Ex.OP/A alongwith document Ex.OP/1 and closed the evidence.

7.                We have heard the learned counsel for the complainant and also gone through the written arguments of OP No.1 and also scanned the case file very minutely.

8.                It is established on the file by way of documentary evidence i.e. Invoice, the Split ACs have been admittedly purchased by the complainant from OP No.2, which is manufactured by OP No.1 and its invoice is available on the file Ex.C-1 and warranty card alongwith booklet is placed on the file Ex.C-2. Thereafter, the complainant sent numerous emails to the OP for replacement of the AC, being reason the same is not repairable, rather having some inherent manufacturing defect. No doubt, the OP sent its employee number of times to rectify the defect in the AC, but the same could not be rectified, which shows that the version of the complainant that there is a manufacturing defect is established. If there was no manufacturing defect, then the OP has an opportunity to examine the said mechanic/engineer, who visited the house of the complainant number of times, to file his affidavit to prove that there is no manufacturing defect in the AC, but for the best known reason, no mechanic or engineer has been examined by the OP, which itself goes in favour of the complainant and also proved that the allegations of the complainant are virtually true and as such, we find that the complainant is entitled for the relief claimed because one of the AC supplied to the complainant is having manufacturing defect, which is not curable.

9.                In the light of above detailed discussion, the complaint of the complainant is partly accepted and OPs are directed to replace the one AC of same model and same quality be installed in the house of the complainant and the old one will be returned to the OP by the complainant and further OPs are directed to pay compensation to the complainant for causing mental tension and harassment, to the tune of Rs.20,000/- and further, OPs are directed to pay litigation expenses of Rs.7000/-. The entire compliance be made within one month from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.  

10.               Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated                                     Jyotsna                                Karnail Singh

24.09.2019                                  Member                              President