DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016

Case No.436/2006

M/s Wigan & Leigh College

registered office at:

401-402, Skipper Corner

88, Nehru Place,

New Delhi                                                                    ….Complainant

Versus

1.      Carrier Aircon Ltd.

          through the Chairman/Managing Director

          Kherki Dualia (P.O.)

          Delhi-Jaipur Highway, NH-8,

          Distt. Gurgaon-122001

2.      Toshiba Air-Conditioning Group

          Carrier Aircon Ltd.

          through the Sales Manager

          40, Shahpur Jat,

          Near Asian Games Village

          New Delhi-110049

3.      Toshiba India Pvt. Ltd.

          through  the Managing Director

          6F, Dr. Gopal Das Bhawan,

          6F, Dr. Gopal Das Bhawan,

          28, Barakhamba Road,

          New Delhi                                                       ….Opposite Parties

                                                          Date of Institution      : 18.08.06

                                                         Date of Order             :  01.08.17

Coram:

Sh. N.K. Goel, President

Ms. Naina Bakshi, Member

ORDER

The case of the complainant, in nutshell, is that complainant is a registered company under the Companies Act and they had purchased 6 Air Conditioners (Toshiba HI WALL Heat Pump Split 1.5 ton) from the OPs  at the rate of Rs.39,500/- per AC and a total amount of Rs.2,37,000/- was paid by the complainant and the OPs installed the ACs on 30.06.04 whereafter the complainant shifted the premises in the month of October, 2004 and the ACs were shifted to the new premises by the OPs. At the time of purchase of ACs the OPs assured the complainant that all the ACs are of good quality and free from any defect and assured one year on site free service with one year warranty on all the ACs. In the month of March, 2005 the complainant started using the ACs  and it was found that all the ACs were not functioning properly and the fact was brought to the notice of the service manager of the OPs. It is submitted that they sent various emails dated 28.06.05, 30.06.05, 04.07.05, 14.07.05, 25.07.05 and 01.08.05 to the OPs and the service engineer of the OPs kept on coming off and during the months of April, May & June, 2005 they had done temporary repair of the ACs  but  the ACs  again stopped working after 2-5 days. Especially two ACs were constantly giving problems and it was informed to the OPs.  On 09.06.2005 they had requested the service engineer to replace the defective ACs as all the ACs were in warranty period. However, the OPs intentionally kept on delaying the matter for not taking any action.  It is submitted that they made repeated requests through telephone/emails to the office of the OPs but the defects were not removed. In para 9 of the complaint it is stated that “On 12.09.2005 Mr. Hemant Jolly, Marketing and Product Management Head met the director of the complainant and agreed to replace 3 defective ACs  which fact was repeated by Mr. Manish Goel Territory Manager of the OP vide his email dated 02.12.2005 admitted that the three machines were to be replaced whereafter the said Mr. Hemant Jolly vide his mail dated 20.12.2005 once again admitted that three machines  had to be replaced and thereafter Mr. J. Nagata of the OP vide his mail dated 24.01.2006 and 03.02.2006 apologies for the delay and defective service but still nothing was done to replace the said conditioners.” Copy of the emails dated 02.12.2005, 20.12.2005, 24.01.2006 and 03.02.2006 are annexed herewith as Annexure-H (Colly) but till date they have not replaced the same. Hence, the action on the part of the OPs amounts to deficiency in service for not repairing/replacing the admitted defective goods supplied by the OPs.  The complainant has filed the present complaint for the following prayers:-

1. to direct the OPs to replace all the defective air conditioners,
2. to direct the OPs to pay to the complainant a sum of Rs.15 lacs alongwith interest @ 18% per month  towards harassment and inconvenience caused to the complainant.

OP No.1 in its written statement has inter-alia stated that the complainant is not a “consumer” as defined in section 2 (1) (d) of the Consumer Protection Act, 1986 as the goods purchased by the complainant are for the “commercial purpose” and the transaction between the complainant and the OP No.1 is commercial in nature

and, therefore, the present complaint merits dismissal on this ground alone; that there is no deficiency in service as the ACs were in a working condition. The OPs have regularly provided servicing of the units and attended to complaint calls of the complainant. It is submitted that the complainant had ordered 6 nos. of 1.5TR Toshiba Carrier High Wall Split air conditioners alongwith Heat Pumps. The complainant was required to provide road permit for delivery of the same.  The complainant did not provide any road permit finally with the efforts of the OPs the units were delivered and installed on 30.06.04 by the authorized dealer of OPs. The complainant was required to make the timely payment but the complainant defaulted in making timely payment for the units purchased. The payment for the ACs was made by the complainant on 13.09.04 and the complaints were promptly attended by the OP No.1. It is denied that they had temporarily repaired the machines. The Field Service Report (FSR) bears the remarks  of the Technician/Service Engineer that the machines were in a working condition.  The defects observed in the machine were rectified on 30.07.05 vide FSR No. 2014. This fact was also brought to the notice of Ms. Sadhna Kapoor, employee of the complainant. The complainant has deliberately not annexed the FSR No. 2014 alongwith the complaint and as regard FSR No. 132 dated 23.03.05 it is submitted that on the said date the engineers of the OPs could not check the machine as there was no power. The machine was again inspected on 08.04.05 and the machine was found working Okay.  It is stated that there was a regular power breakdown in Noida and sudden load was hampering the functioning of the machines. Therefore, the complainant was advised to have TDR installed on the main supply as a corrective measure. It is submitted in para 9 of the reply that “the answering Respondent deployed its officials to attend to the complaints and resolve the issue with the Complainant. The intention of the answering Respondent was always to resolve the issue in the best interest of the customer. In this regard, the officials of the answering Respondent visited the Complainant and negotiated this fact, which is well documented and has been annexed by the complainant himself as Annexure-D. As a consequence of series of negotiations it was agreed that 3 units shall be replaced with Scheduled Preventive Maintenance Services Contract (“SPMS Contract”) an equivalent of an Annual Maintenance Contract at a one year cost; SPMS Contract at a regular cost for the balance 3 machines. It is pertinent to mention that the answering Respondent agreed for replacement of units as a goodwill gesture and it is in no way an admission by the answering Respondent that the units were not in a working condition. The answering Respondent at all times has been in consistent follow up with the Complainant to resolve the matter but all the efforts of the answering Respondent went in vain. The Complainant did not adhered to the negotiated terms despite the fact that the answering Respondent was willing to provide all cooperation and assistance to resolve the matter. It is submitted that even during the course of the ongoing proceedings in March 2007 the Complainant indicated to settle the matter and asked for replacement of all the units which is completely unjustified and unreasonable. It is submitted that the complainant is making an attempt to use this Hon’ble Forum for an unjust enrichment at the cost of the answering Respondent.”  It is stated that the complainant has not specifically stated as to what were the defects which were not rectified.  The allegations are general in nature as there was no such defect.  The OP No.1 has prayed for dismissal of the complaint.

OP No.2 & 3 were proceeded exparte vide order dated 04.12.06 passed  by our predecessors.

Complainant has filed a rejoinder and stated that the ACs were purchased for the use of premises and not for commercial purpose and reiterated the averments made in the complaint.  It is stated as follows:-

“9      … It is submitted that the officials were deployed by the answering respondent after repeated requests and complaints by the Complainant regarding the faults of the air conditioners and its replacement. It is wrong and denied that the respondents were willing to resolve the issue in the best interest of the customer. If it would had been so Complainant would not have been compelled to file the present Complaint. The fact as stated by the answering respondent that they agreed to replace the defective air conditioners on entering into one year SPMS contract itself speaks volumes about the intention of the answering Respondent to any how extract money from the Complainant. As a mater of fact the pre conditions imposed for the replacement of the defective air conditioners by the answering Respondent was just another tactics to black mail and further harass the Complainant. It is further wrong and denied that the answering Respondent agreed to replace the defective air conditioners out of good will gesture. It is stated that the answering Respondent agreed to replace the air conditioners as they also acknowledged the defect in the same. It also wrong and denied that the mater was not resolved due to any fault or adamancy on the part of the Complainant. It is further wrong and denied that the Complainant ever met the officials of the answering Respondent for settlement of the issue….”

Affidavit of Sh. Dinesh Kumar, AR has been filed in evidence on behalf of the complainant. On the other hand, affidavit of Sh. Arun Bhatia, Director has been filed in evidence on behalf of OP No.1.

Written arguments have been filed on behalf of the complainant and OP No.1.

We have heard the oral arguments on behalf of the parties and  have also gone through the file very carefully.

Admittedly, the complainant had purchased 6 ACs to be installed in the college for a sum of Rs.2,37,000/-. 

The OP’s main plea is that the complainant purchased the ACs for commercial purpose.  It is observed from the documents filed by the complainant that the complainant was running a college and the complainant had purchased the ACs for installing the same in the college. As such the complainant cannot be considered to be a ‘consumer’ within the meaning of section 2 (1) (d) of the Consumer Protection Act.  Thus, the present complaint cannot be entertained.  Even otherwise there is no material on the record to show that there was any manufacturing defect in the 6 ACs. The averments made in para 9 of the reply of OP No.1 have not been controverted in the affidavit of the complainant.  Therefore, no deficiency in service has been proved against the OPs. We hold accordingly.

In view of the above discussion, we do not find any merit in the complaint and dismiss it with no order as to costs.

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations.  Thereafter file be consigned to record room.

Announced on 01.08.17.