Before the District Consumer Dispute Redressal Commission [Central District] - VIII,      5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi

                                      Complaint Case No. 24/17.02.2022

Mr. Manu Bansal

R/o 484, Gali Sheesh Mahal,

Bazar Sita Ram, Delhi-110006

Also at : N-407, Vivek Vihar A WHO,

Sector-82, NOIDA-201305, Uttar Pradesh                                               …Complainant

                                                Versus

OP1-M/s Carrier Media India Pvt. Ltd.

Having Registered Office at:

First Floor, Plot No. 51, Sector-32,

Gurgaon-122001,  Haryana               

OP2-Mr. Krishna Sachdev

Director/Authorized Signatory, First Floor,

Plot No. 51, Sector-32, Gurgaon-122001, Haryana                               

OP3-Mr. Villiam Francis Striebe JR

Director/Authorized Signatory, First Floor,

Plot No. 51, Sector-32, Gurgaon-122001, Haryana

OP4-Mr. Atul Kumar

Director/Authorized Signatory, First Floor,

Plot No. 51, Sector-32, Gurgaon-122001, Haryana                               

OP5-Jianguo Wang

Director/Authorized Signatory, First Floor,

Plot No. 51, Sector-32, Gurgaon-122001, Haryana                               

OP6-Sargam India Electronics Pvt. Ltd.

Having Office At :

51/2, Desh Bandhu Gupta Road,

Opposite Khalsa College, Karol Bagh, New Delhi-6                              ...Opposite Party

                                                                                    Date of filing:            17.02.2022

Coram:                                                                       Date of Order:            27.05.2024

Shri Inder Jeet Singh, President

Ms Rashmi Bansal, Member -Female

                                                       ORDER

Rashmi Bansal, Member

This final order, will disposed off complainant’s complaint alleging deficiency of services in supplying him defective window air conditioner(briefly the goods/product) that caused him financial loss as well as harassment and mental agony. The OP1 is the manufacturer of the product, OP2 to OP5 are Directors of OP1 and OP6 is the seller of the product.

1. Case of the complainant:
   1. The matrix case of complainant, as set-up, is that he has purchased from OP6 a window air conditioner, 2-ton, with the model, make and manufactured by OP1, for a total sale consideration of Rs. 30,500/- inclusive GST against the invoice bearing number KB– 20–5691 dated 25.02.202. The said product was installed on 26.02.2021, but it was used only from April 2021 due to weather condition and since the day of its use, there has been issue of cooling with the said product. A complaint dated 11.05.2021 vide request no.136186746 was registered with OP6, who transferred it to OP1 and one technician of OP1 visited the place of the complainant on 02.06.2021 to repair the product and stated that there is some issue of leakage of gas in the product and it must get repaired with further advise for extra protective coating on the coil  for extra life and efficiency to the product and upon his advice, the complainant got it done on payment of Rs.2500/-  towards the said coating. However, despite that, the issue was not resolved. Then again on 01.08.2021 vide request no. 136410360another complaint was registered with OP and on the visit of the technician it was transpired that, rather than repairing the product on earlier occasion, the technician had burnt the inner part of the product. The technician stated that there is defect with the product due to which copper pipe installed in the product shakes causing continuous leakage of gas from the product which effected the cooling of the product and the same cannot be restored or repaired more efficiently at their end and have stated it to be a manufacturing defect. The same was duly communicated to OP1 and OP6 and also vide various emails specifically dated 05.08.2021, 06.08.2021, 10.08.2021. The photographs of the product were also forwarded to OP1. However, the product is still not working properly and problem still persists.
   2. Complainant states that the product was having a latent defect which a person of ordinary prudence cannot detect by himself. It appears that the product was having a manufacturing defect, which cannot be repaired and rectified at a later stage and the product is beyond repair or rectification now and should be replaced with a new product or amount to be refunded to the complainant. it is submitted that he purchased the product relying on the description of the specification as advertised and on official website with exaggerated claims, however, the product transpired to be totally defective and useless because of which the complainant has not been able to use the product rather left to be pestered and tormented by malfunctioning product. Complainant also alleges that rather than redressing the genuine grievances of the complainant, it has been intimated to the complainant that complaint made by him has been closed, setting the remark, ‘customer has declined for request’. Whereas the complainant never closed his complaint but it was not redressed and the same has been arbitrarily closed by OP1 with mala-fide intention to escape its liability. Complainant submits that he has made all the efforts to get the product replaced with the new one but all went in vain. Complainant submits that by selling him a defecting product, OP1 has caused him wrongful loss and wrongful gain to itself which caused him mental pain, torture and agony, combined together with deficiency of service on the part of OPs for which they are liable to compensate the complainant and also refund or replace the product. The legal notice sent to all the complainant was not replied, except by OP6 in which the responsibility has been shifted towards OP1.

2. Upon notice OP1 and OP6 have appeared and have filed their replies along with supportive documents. However, for want of appearance of OP2 to OP5they were proceeded ex-parte by proceedings dated 08.08.2022.
3. OP1 case
   1. OP1 has filed its reply (through its manager holding power of attorney) stating that complainant failed to disclose the defect in the said product and present complaint is filed making false allegations against the OP1. The purchase of the said product with the standard warranty, terms and conditions applicable to the said product, is admitted. OP1 also admits complaint dated 11.05.2021, which was attended on 02.06.2021stating that on inspection it was found that there was a minor issue with the said product, which was rectified to the satisfaction of the complainant. OP1 further states that any issue with the burning of coils could have easily been rectified, if the complainant had allowed inspection of the said product and repair of the alleged damaged components but after one visit regarding the cooling issue, the complainant has started alleging manufacturing defect, on his own, without any expert evidence and this is due to his own actions and omissions, the complainant was facing issues with the product. OP1 admitted another complaint dated 01.08.2021, stating that a technician duly visited premises of the complainant on 05.08.2021 and after thorough inspection certain issues were identified causing gas leakage, which was duly attended and a free gas top up was done to make the said product work properly. Another complaint dated 06.08.2021 was received from the complainant but the complainant did not allow the technician to conduct the repairs and started asking for a replacement, though it was informed to the complainant that issue can be fixed free of cost and same will not recovered, therefore, the complaint was closed due to non - cooperative behaviour of the complainant.
   2. OP1 has also submitted that after receipt of emails of the complainant, the representative of the OP1 again contacted the complaint regarding the issue but complainant was adamant for replacement or refund and not ready for any repairs, whatsoever.OP1 also submits that complainant claimed there was a manufacturing defect in the said product, without any technical know-how about the product. OP1 submits that complainant was asking for replacement of the said product, without allowing examination and fixing the said product which is highly arbitrary and unfair and complainant cannot seek a replacement of the said product on his own whims and fancies in terms and conditions of the warranty of the said product. OP1’s efforts to fix the issue with the said product to the satisfaction of the complainant by amicable resolution were failed and the complainant had avoided examination of the said product and instead sent a legal notice after which OP1 again reached out to the complainant, but complainant insisted only on the replacement without allowing examination of the said product, which was not acceptable to the OP1as it was against the standard operating procedure and practice of the OP1.
   3. OP1 submits that it has provided all possible recourses and help to the complainant in addressing his grievances but he has filed the present complaint, complaining of some minor user related damages and to seek the refund of the entire purchase price of replacement of the said product with the new one. If such practice is allowed to continue, the same will destroy all the manufacturing businesses in the country as no manufacturer can do so at the cost of such replacement that too without their fault. The attempt of the complainant shows his greediness, at this type of practice promoting the same will result in putting the permanent shutter to all manufacturing unit in the country. It is submitted OP1 that there is no cause of action arising against it and as such the complaint is liable to be dismissed as complainant had not placed on record any evidence to prove any defect in the said product or the losses suffered by the complainant.
4. OP6 has also filed its reply through its authorised representative admitting purchase of the said product by the complainant, who was duly informed about the warranty terms of the said product at the time of purchase and after being fully satisfied by the information, the complainant considered purchase of the product. Complainant was given a good, new and seal packed product and was fully satisfied at the time of purchase. OP6 states that the first date mentioned in the complaint is after 73 days of purchase of the product from which it is evident that the said product worked satisfactorily after the purchase and installation. It is also submitted that present complaint is liable to be dismissed on the ground that there is no prima facie case against the OP6 and no cause of action against OP6 for any deficiency on its part. It is also submitted that he had promptly responded to the complainant by registering call with OP1 and OP1is the right and appropriate party to resolve complaint of the complainant.
5. Complainant has filed the rejoinder negating the contents of the written statement filed by OP1 and OP6 by reiterating the contents of the complaint and stated that he never refused to allow to inspect the product installed at the premises and the technician of OP1,when visited the premises of the complainant, himself said that product is defective one. Complainant also submits that there is no minor defect in the product and the same has either to be replaced or his money be refunded.
6. Complainant, OP1 and OP6 has filed their respective evidence. In support of his case, the complainant has filed invoice dated 25.02.2021, copy of email (colly), the photographs of the product, copy of the legal notice and postal receipts and tracking report of the service, copy of reply dated 25.10.2021 from OP6. OP1 has filed the power of attorney in favour of its managing Director and copy of terms and conditions of the warranty,

1. The complainant, the OP1 and OP6 have put up their arguments. The complainant has relied upon the judgement (i) Mr. Ashok Kehsarlal Saraf (deceased by LRs) Vs. Tata Motors Ltd. & Anr. CC. No. 66/1995 CDRC Maharashtra; (ii) Diamond Plastic Industries Vs. Govt. Of A. P. AIR 1997 SC 2774; (iii)  Shriram Refrigeration Industries Ltd. Vs. The Ratnakar Bank Ltd;, II (1999) CPJ 644 (iv) TELCO Vs. T. Nagaraju, 1997 NCJ 194 (NC) (v) Mahindra & Mahindra Ltd. Vs. B. G. Thakurdesai, I (1993) CPJ 72 (NC); (vi) Ashok Leyland Ltd. Vs. Prabhulal Maru, 2004 CTJ 931 (CP) (NCDRC) : IV (2004) CPJ 38 (NC); (vii) M/s Harsolia Motors Vs. National Insurance Co. Ltd., First Appeal Nos. 159, 160/2004, dt. 04.12.2004 (viii)  Indochem Electronic Vs. Collector of customs, 2006 3 (SCC) 721; (ix) Carrier Air Conditioner Vs. Mukesh Chandi, (SCDRC) 15.12.2008; (x) Mr. Vikas Vs. Pathare Vs. Vijay Sales Mahim Brance, (SCDRC) Mumbai; (xi) Shriram Refrigeration Industries Ltd. Vs. The Ratnakar Bank Ltd. (1999) (2) CPC 396 :1999 (2) CPJ 644 : 1999 (2) CPR 540 Bob.; (xii) Tata Motors Vs. Rajesh Tyagi and HIM Motors Show Room. OP1 has relied upon the judgements  M/s Hero Honda Motors Limited Vs. Shri Katakam Mallikarjuna Rao II (2013) CPJ 688  (NC); (ii) Sukhvinder Singh Vs. Classic Automobile & Anr. I (2013) CPJ 47 (NC); (iii) Sushila Automobiles (P) Ltd. V s. Dr. Birendra Narain Prasad & Ors. III (2010) CP J 130; (iv) Maruti Udyog Ltd. Vs. Hashmukh Lakshmi Chand, III (2009) CPJ 229.

7. The commission has heard the arguments of both the sides and has perused the documents of the parties. Considering the facts, arguments and documents on record, the core issue to decide is ‘whether the product was suffering from any manufacturing or /and defect or not’?
   1. There is no dispute with respect to the purchase of the product in question, which admittedly was installed on the next day of purchase on 26.02.2021. The month of February being winters, the possibility of not using the product cannot be ignored, which as per complaint was first time used in April 2021. Therefore, the contention of OP6 that the complaint was made after 73 days of the purchase of the product as the product was working perfectly is not sustainable. Further, the dates of complainants made by the complainant are also not disputed.  It is admitted case of OP1 that on both the occasion, i.e. on 11.05.202 and 01.08.2021 the issues were with the functioning of the said product which were rectified by its technician. Also, on the third occasion, on 06.08.2021, its technician has inspected the product and after inspecting the product wanted to rectify the issue, which was denied by the complainant. It is thus established that on all the three occasions, that the said product was treated and rectified for one purpose or another to make its functioning proper. It is further case of OP1 that after email communication, they were offering repairs for the said product-AC or for some amicable settlement. It is also admitted case of the OP1 that the product was having some minor user related damages, because of which it was not functioning properly. All the averments and actions of OP1 imply that the product was suffering with some damages/ defects which may be minor or major but fact is that despite two times rectification by OP1, the same was not working properly and the consumers was not able to enjoy his purchase to its satisfaction. The complainant has been continuously involved for the repair or rectification of the product after start using it in April 2021till August 2021. The period assessment shows that the whole summer period for which the said product meant for was passed into its repairing and rectification.
   2. The Consumer Protection Act, 2019, Sec 2(10) defines ‘defect’ which reads “any fault, imperfection, or shortcomings in the quality, quantity, potency, purity, or a standard, which is required to be maintained by or under any law for the time being in force, or under any contract, express or implied, or as is claimed by the trader in any manner whatsoever in relation to any goods or product and the expression ‘defective’ shall be construed accordingly”. It defines ‘defect’ in general. It does not specifically related only for manufacturing defect. The definition clearly states that any fault, imperfection, or shortcomings into the product would amount to ‘defect’ and the product ‘defective’. In the present case, there is admittedly minor damages in the product as per OP1, which despite repairing two times by itself OP1 remained ineffective in cooling, which establish thatthe said product was having something wrong in itself because of which it was not functioning properly. Since the product was within warranty period, therefore OP1 has addressed the issue offering its services but without guaranteeing that the product will work efficiently even after expiry of warranty period. Further, there is an implied contract on the part of the manufacturer of the product to maintain the quality, quantity, potency, purity, or a standard of that product. This is up to the manufacturer to ensure its customers that the product being sold by it does not suffer from any defect/imperfection or fault.
8. It is settled principle of law that whenever a consumer purchases a brand-new goods, he purchases with a minimum expectation of getting a brand-new defect free product and that he would not encounter any inconvenience or problem or hardship for at least few months of its use. If he has to get the product repair again and again for its proper functioning in its initial days then that in itself is a proof of the fact that the product was suffering from some defects. The OP1 and OP6 failed to bring on record any document to show that a defect free product was given to the complainant. So far as warranty terms and conditions are concerned, they are also the proof of the fact that even the brand-new products have chances to suffer from the defect, which is the reason that warranty provisions are made for replacing or curing the defect free of cost as the manufacture itself cannot guarantee that even the brand-new product is defect free product. Since the defect in the present case continued one after other, which is suffice to draw the inference that the said product was suffering from defect which could not be cured despite attempts made by OP1 and therefore, OP1 is liable to redress the grievance of the complainant.
9. For the reasons stated supra, this Commission is of firm view that OP1 is liable for deficiency in service in not supplying a perfect working and defect free product to the complainant nor it was serviced to make it functional. Since the product in question is an electronic item, whose specifications, model and make keeps changing in the era of fast-moving technology and the replacement or repair would not serve the purpose, therefore, this Commission deems it appropriate to direct OP1 to refund the price of the said product in order to avoid any further dispute in future instead of replacement or otherwise. The refund of the price also deserves to be paid along with interest as because of defective product, the complainant could not enjoy the fruits of his purchase instead kept on getting it corrected time and again which we consider 6% p.a. as sufficient. Apart from suffering trouble, inconvenience, harassment and mental agony, the complainant has to approach this commission for the redressal of his grievances. In ‘Ghaziabad Development Authority vs. Balbir Singh (2004) 5 SCC 65 it was held that Consumer Forums not only compensate the consumer as to the actual loss suffered but also to compensate him for mental agony, harassment, emotional suffering, physical discomfort, loss of business, loss of time by taking the product time and again to the workshop. Therefore, this Commission considers a compensation of Rs. 10,000/- and litigation cost of Rs. 5,000/- appropriate in the facts and circumstances of the case. Therefore, it is held that  OP1 is liable for deficiency in service and is directed as follows:
   1. To pay Rs.30,500/-to the Complainant with interest @6% p.a. from the date of filing the complaint i.e. 17.02.2022.
   2. To pay Rs.10,000/- towards mental agony and Rs.5,000/- towards legal expenses to the Complainant.
   3. To collect the said product within 10 days from the date of payment of the said amount to the complainant and complainant will handover it over to OP1 or its authorised representative;  failing which the right of OP1 shall stand forfeited.
10. The complainant against OP2 to OP5 stands dismissed as they are the director of OP1 and ought to have removed at the initial stage only as OP1 is the whole sole in-charge of its acts.
11. The complaint against OP6 is also dismissed as being the seller of the product of OP1, the best it could do so to inform OP1 about the complaint with respect to the said product which he did.
12. Since complainant has not filed voucher of the payment of Rs. 2500/- for coating the coil, the said amount cannot be given to her. The cost of the stabiliser is also not be awarded as same being a separate product and does not have any complaint against that.
13. The above stated order shall be complied with by OP1 within 45 days from the date of this order, failing which Rs. 30,500/- shall carry an interest @ 9% p.a. w.e.f. 17.02.2022 till its realization by the complainant along with compensation and litigation cost as awarded.
10. The OPs may also deposit the amount in the form of valid instrument in the name of complainant in the Registry of this Commission.
11. Announced on this 27^th May 2024. Copy of this Order be sent/provided forthwith to the parties as per CPA 2019 Rules besides to upload on the website of this Commission.      

   [Rashmi Bansal]                                         

                                                                                                                         Member (Female) 

                                                                                                                          [Inder Jeet Singh]

                                                                                                                                        President