Order by:
Sh.Amrinder Singh Sidhu, President.
1. The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 on the allegations that he had purchased a Daikin SAC 1 Ton Model-FTL35TV16W1 AC alongwith V-Guard AC Stabilizer Model VNS4000 from Opposite Party No.3 who is the authorised dealer of Opposite Parties No.1 and 2 company for a consideration of Rs.30,500/- vide bill No. 21 dated 31.03.2021. Further alleges that soon after purchase i.e. within 3 months during warranty period of said AC, said product is not upto the mark due to defects i.e. (i) the said AC is not blowing fresh & Cool air, (ii) the said AC did not make cool the area and (iii) the said Act is having high noise and the consumption of the electricity is very high. In this regard, the complainant made various complaints and requests to all the ops in written i.e. bearing complaint No.LUD1607202124976204 dated 16.07.2021 then bearing No. LUD2607202125013074 dated 26.07.2021, then vide complaint No. LUD1808202125113370 dated 18.08.202 and then vide complaint No. LUD1110202125320821 dated 11.10.2021, but till date, the Opposite Parties are lingering on the matter on one pretext to another and failed to redressal the grievance of the complainant and at last refused to admit the rightful claim of the complainant. In this way, said conduct of the Opposite Parties clearly amounts to deficiency in service and as such, the Complainant left with no other alternative but to file the present complaint. Vide instant complaint, the complainant has sought the following reliefs.
a) Opposite Parties may be directed to refund the price of the AC alongwith interest @ 12% per annum besides Rs.1 lakh as compensation for mental tension ad harassment and Rs.5500/- as costs of litigation or any other relief to which this District Consumer Commission may deem fit be also granted.
Hence, the present complaint is filed by the Complainant for the redressal of their grievances.
2. Opposite Parties No.1 and 2 appeared through counsel and contested the complaint by filing the written version on the ground inter alia that the complaint is not maintainable; that there is no deficiency in service on the part of the Opposite Party and that the complaint is absolutely false and frivolous. It is submitted that as and when the complainant made complaints, the technicians of the Opposite Parties immediately attended to the complaints and in order to check the AC Unit, the technician of Opposite Parties No.1 and 2 visited the premises of the complainant time and again wherein the AC unit was found to be working efficiently and further after concrete inspection, it was found that the coil of the AC Unit was blocked because of the tiny hair particles in the salon and thus the coil of the AC unit was cleaned and the AC unit was working perfectly fine. Moreover, the cooling problem in the AC unit was due to the tiny hair particles in the salon and continues opening and closing of the door of the salon and the AC unit had been installed by un-unauthorised dealer leading to an improper and unskilled installation of the AC unit. The AC unit was working absolutely fine as per the standards however complainant wanted to gain undue advantage from Opposite Parties No.1 and 2 by registering false complaints. Further more, no expert report has been obtained by the complainant regarding the alleged effect, if any, in the product, whether there is any manufacturing defect in the product or not. Hence, the present complaint is liable to be dismissed.
3. Opposite Party No.3 appeared through counsel and contested the complaint by filing the written version on the ground inter alia that the complaint is not maintainable; that there is no deficiency in service on the part of the Opposite Party and that the complaint is absolutely false and frivolous. It is submitted answering Opposite Party is the authorised dealer of Opposite Parties No.1 and 2 and sold the AC in question in sealed packed box to the complainant. Moreover, it is clearly mentioned on the bill itself that the answering Opposite Party is not responsible for any defect and the warranty will be provided by the company and hence there is no deficiency in service on the part of the Opposite Party No.3 and the complaint deserves dismissal against Opposite Party No.3.
4. In order to prove his case, the complainant has tendered into evidence affidavit of complainant Ex.C1 alongwith copies of documents Ex.C2 to Ex.C8 and closed the evidence.
5. On the other hand, to rebut the evidence of the complainant, Opposite Parties No.1 and 2 tendered into evidence the affidavit of Sh.Anurag Mishra, Company Secretary Ex.Op1,2/1 alongwith copies of documents Ex.Ops1,2/2 to Ex.Op1,2/4 and similarly, Opposite Party No.3 tendered into evidence the affidavit Ex.OP3/1 of Sh.Himanshu Bansal, proprietor and thereafter, the Opposite Parties closed their respective evidence.
6. We have heard the ld.counsel for the complainant as well as ld.counsel for the Opposite Parties and also gone through the documents placed on record.
7. During the course of arguments, ld.counsel for the Complainant as well as ld.counsel for Opposite Parties have mainly reiterated the facts as narrated in the complaint as well as in the written statement respectively. We have perused the rival contentions of the parties and also gone through the record on file. The main contention of the complainant is that soon after purchase i.e. within 3 months during warranty period of said AC, said product is not upto the mark due to defects i.e. (i) the said AC is not blowing fresh & Cool air, (ii) the said AC did not make cool the area and (iii) the said Act is having high noise and the consumption of the electricity is very high. In this regard, the complainant made various complaints and requests to all the ops in written i.e. bearing complaint No.LUD1607202124976204 dated 16.07.2021 then bearing No. LUD2607202125013074 dated 26.07.2021, then vide complaint No. LUD1808202125113370 dated 18.08.2021 and then vide complaint No. LUD1110202125320821 dated 11.10.2021, but till date, the Opposite Parties are lingering on the matter on one pretext to another and failed to redressal the grievance of the complainant and at last refused to admit the rightful claim of the complainant. On the other hand, ld.counsel for the Opposite Parties No.1 and 2 has repelled the aforesaid contention of the ld.counsel for the complainant on the ground that as and when the complainant made complaints, the technicians of the Opposite Parties immediately attended to the complaints and in order to check the AC Unit, the technician of Opposite Parties No.1 and 2 visited the premises of the complainant time and again wherein the AC unit was found to be working efficiently and further after concrete inspection, it was found that the coil of the AC Unit was blocked because of the tin y hair particles in the salon and thus the coil of the AC unit was cleaned and the AC unit was working perfectly fine. Moreover, the cooling problem in the ACT unit was due to the tiny hair particles in the salon and continues opening and closing of the door of the salon and the AC unit had been installed by un-unauthorised dealer leading to an improper and unskilled installation of the AC unit. The AC unit was working absolutely fine as per the standards however complainant wanted to gain undue advantage from Opposite Parties No.1 and 2 by registering false complaints. Further more, no expert report has been obtained by the complainant regarding the alleged effect, if any, in the product, whether there is any manufacturing defect in the product or not. Ld.counsel for Opposite Party No.3 has contended that Opposite Party No.3 is only dealer of Opposite Parties No.1 and 2 for the sale of the product only, and the manufacturer is the only responsible for any defect in product, if any within the warranty period and hence, there is no deficiency in service on their part. But to strengthen its contention, the Opposite Parties have failed to produce any cogent and convincing evidence on record. Not only this, the Opposite Parties also did not give satisfactory reply to the complaints of the complainant with regard to defect in the product in question and it seems that there is some defect in the product in question as alleged by the complainant and to strengthen his version, the complainant has tendered his duly sworn affidavit Ex.C1. Perusal of the complaints bearing complaint No.LUD1607202124976204 dated 16.07.2021 then bearing No. LUD2607202125013074 dated 26.07.2021 (Ex.C4 and Ex.C5) shows that some defects occurred within 3-4 months from the date of its purchase i.e.within warranty period, but the Opposite Parties could not satisfy the complainants by redressing his grievances in said peak season of summer, for which period he might have purchased the AC in question by spending some hefty amount. In this regard, Hon’ble Delhi State Commission, New Delhi in case titled as Jugnu Dhillon Vs. Reliance Digital Retail Limited 11(2014) CPJ page 17 has held that
“failure of compressor within 2-3 months of its purchase itself amounts to manufacturing defects- when any company stopped manufacturing particular model under these circumstances only way left is to refund of money alongwith interest- Product found to be defective at the very outset- It is always better to order for refund of amount.”
Hon’ble Supreme Court in case titled Hindustan Motors Limited and Anr. Vs. N.Shiva Kumar and Anr. (2000) 10 Supreme Court Cases, 654 also held so. In the instant case, the colour of the Ipohone case has fed up within 20 days from the date of its purchase. In this regard, Hon’ble National Commission, New Delhi in case Shirish Vs. C.S.Rahalkar (Dr) in 2010(3) CLT page 209 has held that
“the respondent had paid Rs.32,500/- for an original Amtrex air –conditioner and not an assembled air-conditioner. The State Commission has rightly held the petitioner guilty of Unfair Trade Practice as defined under the Consumer Protection Act and consequently, directed the petitioner to compensate the respondent for the same.”
Not only this, Hon’ble Delhi State Consumer Disputes Redressal Commission, in First Appeal No. 359 of 2012 decided on 11.02.2014 titled as Jugnu Dhillon Vs. Reliance Digital Retail Limited has held that “Defective Air Conditioner-Manufacturing Defect- Expert Evidence- there is a compressor failure in their newly purchased AC and regretted such failure within suah a short tenure and failure of the compressor of the AC within 2-3 months of its purchase itself amounts to manufacturing defect.
8. Furthermore, it is clearly established on the file that the complainant made various complaints orally as well as in writing to the Opposite Parties for the redressal of his grievance with regard to defect in the AC in question. Not only this, admittedly, the technicians of the Opposite Parties visited the premises of the complainant, but they could not remove the defect in the newly purchased AC of the complainant despite efforts and as such, the problems started in AC in question within 3-4 months from the date of its purchase and whenever a new AC is required to bring in the Service Centre within such a short span, then there must be some manufacturing defect. If not, then it is the duty of the opposite parties to examine any engineer or mechanic to establish that there is no manufacturing defect. But in this case, the opposite parties have not examined any of its engineer or mechanic, who checked the AC in question number of times and as such, we are of the opinion that there is a manufacturing defect in the AC and the same is liable to be returned back to the opposite parties and in support of this version, we like to refer a pronouncement of our own Hon’ble Punjab State Consumer Disputes Redressal Commission cited in 2018 (3) CLT 472 titled as “Ram Singh versus Krishna Automobiles and others”, wherein His Lordship held as under :-
“Consumer Protection Act, 1986 Sections 2(f) and 13 JCB Manufacturing defect – Absence of expert evidence – When not material – Brand new JCB machine – Same started giving problems just after four days of its purchase – Defects not removed despite several efforts on part of the OP – Hence, case held to be of manufacturing defect – Resultantly, failure on part of the complainant in not producing expert evidence, held to be not material – Therefore, the OP directed to replace the JCB.”
We further like to take an opportunity to refer another pronouncement of Hon’ble West Bengal State Consumer Disputes Redressal Commission, Kolkata cited in 2017 (1) CLT 199 titled as “Satyajit Lodh Bajaj Service Lodh Auto Works v/s Subash Ranjan Sarkar Alipurduar Junction”, wherein His Lordship held as under :-
“A. Consumer Protection Act, 1986 Sections 15 and 2 (f) Allegation of defect in motor cycle – Complaint – Directions to pay new motor cycle alternatively to refund money along with interest and compensation – Motor cycle in warranty period between 30.04.2009 and 30.10.2010 –Job Card No. 179 clearly postulate that within short span of four months, it was placed to appellant for repairing and in Job Card dated 18.08.2009 shows that there were several defects in said motor cycle, viz – poor pick-up, starting problem etc and those defects remained unattended – No technical person or expert would be required to ascertain that motor cycle in question had inherent defect and further in spite of complaint within warranty period, appellant/respondent No. 2 could not solve problem by repairing motor cycle – Therefore, impugned order of District Forum justified.”
As stated above, the complainant proved all these averments through his duly sworn affidavit Ex.C1 and also proved on record the copies of documents Ex.C2 to Ex.C8. The evidence produced on record by the complainant remained unrebutted and unchallenged through any cogent and convincing evidence.
9. Keeping in view the aforesaid facts and circumstances, we partly allow the complaint of the complainant and direct the Opposite Parties No.1 and 2 company to refund the price of the AC in question amounting to Rs.30,500/- (Rupees thirty thousands five hundred only) (Subject to return of AC in question) to the complainant alongwith interest @ 8% per annum from the date of filing the present complaint i.e.27.12.2021 till its actual realisation. The compliance of this order be made by Opposite Parties No.1 and 2 within 60 days from the date of receipt of copy of this order, failing which the complainant shall be at liberty to get the order enforced through the indulgence of this District Consumer Commission. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced in Open Commission.
Dated:08.08.2022.
