PER JUSTICE SHAM SUNDER(Retd), PRESIDENT This appeal is directed against the order dated 10.9.2012, rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which, it accepted the complaint of the complainant and directed the Opposite Parties(now appellants) as under ; “(i) To replace the defective A.C. in question with a brand new one of the same make/model with fresh warranty of one year. OR If the AC of same make/model is not available, then they shall return the invoice price of the same i.e. Rs.56,000/- to the complainant. (ii) To pay Rs.10,000/- as compensation for mental agony and harassment suffered by the complainant; (iii) To pay Rs.5,000/- as costs of litigation. This order be complied with by the opposite parties, within 45 days from the date of receipt of its certified copy, failing which the amounts at Sr.No.(i) & (ii) shall carry interest @18% per annum from the date of this order till actual payment besides payment of litigation costs.” 2. The facts, in brief, are that the complainant(now respondent), purchased a 2.0 TR Atom square Split Air Conditioner from Opposite party No.1, vide invoice dated 10.5.2011 Annexure C-2 and made advance payment of Rs.30,000/- in cash, and Rs.31,800/- vide cheque Annexure C-1. The said Air Conditioner carried a warranty of one year for the whole product and five years for the compressor. It was stated that right from the date of purchase, the said Air Conditioner gave one problem or the other and within a period of one year, it had to be got repaired on nine different occasions with regard to alleged leakage of gas/water and other defects. The complainant wrote a number of emails Annexure C-14 (colly), but still the defects of the Air Conditioner were not rectified, to his statisfaction. It was further stated that the mere fact that the Air Conditioner had got to be repaired 9 times, within a period of one year from the date of installation thereof, for various defects in itself was sufficient to establish that the same suffered from manufacturing defect. It was further stated that the aforesaid acts, on the part of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only) was filed by him, directing the Opposite Parties, to replace the Air Conditioner with a brand new defect free A.C. of the same model and make with fresh warranty of one year or to take back the A.C. and refund the amount of Rs.61,800/- alongwith compensation of Rs.30,000/- and Rs.5500/- as litigation expenses. 3. The Opposite Parties were duly served, but no authorized representative, on their behalf, put in appearance, as a result whereof, they were proceeded against ex parte. 4. The complainant led evidence, by way of his own affidavit, alongwith which a number of documents were attached. 5. After hearing the Counsel for the complainant, and, on going through the evidence, and record of the case, the District Forum, accepted the complaint, in the manner, referred to, in the opening paragraph of the instant order. 6.. Feeling aggrieved, the instant appeal, has been filed by the appellants/Opposite Parties. 7. We have heard the Counsel for the appellants, and have gone through the evidence, and record of the case, carefully. 8. The Counsel for the appellants, submitted that, no doubt, the Opposite Parties were duly served in the complaint, but the complainant told them that he was ready to settle the matter, outside the Fora, as a result whereof, on the basis of his assurance, no authorized representative put in appearance, in the complaint, and, as such, they were proceeded against ex parte. He further submitted that the complainant took contradictory pleas with regard to the defects in the Air Conditioner. He further submitted that, as and when, a complaint was made by the complainant with regard to the defects, in the Air Conditioner, the same were rectified to his satisfaction, by the Engineers/Technicians of the Opposite Parties. He further submitted that the Air Conditioner did not suffer from any manufacturing defect, and, as such, the District Forum was wrong, in ordering the replacement of the same, with a new branch A.C. of the same make or in the alternative for refund of the price thereof. He further submitted that even the compensation and the cost, awarded by the District Forum are, on the higher side. He further submitted that the order of the District Forum, being illegal, is liable to be set aside. 9. Admittedly, the complainant purchased a 2.0 TR Atom Square Split Air Conditioner from Opposite Party No.1, vide invoice dated 10.5.2011, Annexure C2 for Rs.59300/-. The representative of Opposite Party No.1, acknowledged the receipt of Rs.30,000/- in cash, and Rs.31800/- by way of cheque, as advance payment, vide writing Annexure C1. Annexure C4 is a copy of the terms and conditions showing that the Air Conditioner carried warranty for 12 calendar months from the date of installation or fifteen calendar months from the date of invoice, whichever occurred earlier. Annexure C5 is the Help Field Call Report. The problem, which was reported to Opposite Party No.1 was that the Air Conditioner was suffering from noise problem. The Engineer of the Opposite Parties, came to the premises of the Complainant on 9.6.2011 and diagnosed the problem as “checked the 2TR multi split fan and body setting”. Annexure C6 is another Help Field Call Report. The problem which was reported by the complainant to Opposite Party No.1 was that the A.C. was not working. The Engineers of the Opposite Parties came to the premises of the complainant on 9.7.2011 and diagnosed the problem as “checked the 2TR multi split gas leak and not working”. Annexure C7 is another Help Field Call Report. The problem which was reported by the complainant to Opposite Party No.1 was that of breakdown of the A.C. The Engineers/Technicians of the Opposite Parties attended the complaint on 11.7.2011 and diagnosed the problem as “checked the 2.0 T.R. Multi Split A.C. outdoor condenser leakage and N2 presser testing. Presser stand. Vacuum and gas charging unit working OK.” They recorded the remarks “Flexible drain pipe for both indoor units is required as water is putting in the balcony of ground floor”. Annexure C8 is another Help Field Call Report. The problem which was reported by the complainant to Opposite Party No.1, was with regard to drain pipe fitting. The Engineers/Technicians came to attend the problem on 13.7.2011. They diagnosed the problem as “checked the split unit. One circuit new drain pipe fitting and one circuit 10ft copper and wire 14 ft and second 26 ft copper and sire 22 sq.ft.” Annexure C9 is another Help Field Call Report. The problem which was reported by the complainant to Opposite Party No.1 was that the Air Conditioner was not cooling. The Engineers/Technicians came to attend the problem on 3.8.2011. They diagnosed the problem as “Check the 2TR DDO unit found the cond. Coil leak. Leak by cond. bend.” Annexure C10 is another Help Field Call Report. The problem which was reported by the complainant to Opposite Party No.1 was with regard to gas leaking. The Engineers/Technicians came to attend the problem on 4.8.2011. They diagnosed the problem as “check the 2 TR unit DDO gas leak. Pressure Test.25 PSi stand. Condenser bend leak ---- the pipe and vacume. Gas charge- unit working OK. The remarks recorded by them were “the cooling is not satisfactory. Please get it checked again and please rectify the problem.” Annexure C11 is another Help Field Call Report. The problem which was reported by the complainant to Opposite Party No.1, was with regard to water leakage. The Engineers/Technicians came to attend the problem on 5.8.2011. They diagnosed the problem as “check the A.C. of 2.0 T.R. split A.C. and out put drain level setting and unit working OK” and they recorded their remarks as “ at present there is no water leak and we will check after running it for sometime.” Annexure C12 is another Help Field Call Report. The problem which was reported by the complainant to Opposite Party No.1, was with regard to break down of the Air Conditioner. The Engineers/Technicians came to attend the problem on 14.4.2012. They diagnosed the problem as “check the machine/gas short problem. Gas leak. Only 20 psi. cause not explained by the mechanics. The remarks recorded by the complainant were that persistent problem of gas leak had been continuing since the time this unit had been purchased. He requested to check and rectify the problem permanently or replace the outdoor unit. Annexure C13 is another Help Field Call Report. The problem, which was reported by the complainant to Opposite Party No.1 was with regard to gas leak of the Air Conditioner. The Engineers/Technicians came to attend the problem on 20.4.2012. They diagnosed the problem as “checked the 2.0 split A.C. indoor suction pipe cap and pipe properly, -- and pressure testing and unit vacuum and gas charge unit Ok” . They recorded their remarks ‘gas leak,-----”. Thereafter the complainant wrote a number of e.mails to the Opposite Parties Annexure C14(colly), to the effect that there was frequent breakdown of the Air Conditoner, which showed manufacturing defect, in it, and the same be replaced. 10. From the aforesaid reports, it is evident that during the warranty period of one year, as many as on nine occasions, major problems, in the Air Conditioner, were reported to the Opposite Parties, and their Engineers/Technicians came to attend the same. No doubt, no expert evidence was produced by the complainant. However, when the facts speak themselves eloquently, then in the absence of expert report, it could be said that the Air Conditioner was suffering from manufacturing defects. The Engineers/Technicians of the Opposite Parties, no doubt, came to attend the problems, but they were unable to rectify the same. The complainant was, thus, supplied an Air Conditioner, which was suffering from inherent manufacturing defects. The Opposite Parties were, thus, deficient in rendering service. The District Forum was also right, in directing the replacement of the defective Air Conditioner or refund of the invoice amount. The findings of the District Forum, being correct, are affirmed. 11. Coming to the quantum of compensation, and litigation expenses, it may be stated here, that the same could not be said to be, in any way, on the higher side. Right from the date, the Air Conditioner was got installed by the complainant, it started giving problems. It was a source of nuisance, for him. If during the period of one year, from the date of installation of the Air Conditioner, the problems occurred again and again, and the Engineers/Technicians of the Opposite Parties attended the same, on as many as nine occasions, but they were unable to make the same defect free, one can really visualize the plight of the consumer. The complainant, thus, suffered tremendous mental agony and physical harassment, on account of the acts of omission and commission of the Opposite Parties. In the instant case, award of compensation of Rs.10,000/- and cost of litigation to the tune of Rs.5,000/-, by no stretch of imagination, could be said to be excessive. The submission of the Counsel for the appellants, being devoid of merit, must fail, and the same stands rejected. 12. No other point, was urged, by the Counsel for the appellants. 13. The order passed by the District Forum, being based on the correct appreciation of evidence, and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission. 14. For the reasons recorded above, the appeal, being devoid of merit, must fail, and the same is dismissed, at the preliminary stage, with no order as to costs. The order of the District Forum is upheld. 15. Certified Copies of this order be sent to the parties, free of charge. 16. The file be consigned to the Record Room.
| | HON'BLE MRS. NEENA SANDHU, MEMBER | HON'BLE MR. JUSTICE SHAM SUNDER, PRESIDENT | , | |
