Author:  SHRI RABIDEB MUKHOPADHYAY, MEMBER

JUDGEMENT

            That the Complainant purchased are AC machine being model No DAIKIN 1 0ECO INV SAC RKH FTKH 35 RRVI6 on 28.02.2017 from the O.P.-1. The cost of A.C. machine is Rs. 33,800/- (Rs. Thirty three Thousand and Eight hundred) only. The said machine caries warranty for one year.

            That said AC machine  was installed at the Complainant P-34 Narkeldanga Main Road Kolkata – 700011 P.S. – Narkeldanga after 3 months from the installation the AC machine developed problem like not cooling properly. The Complainant complained to

the customer care of the O.P.-1. over Phone 3 or 4 times but after unsuccessful result start to complain through e-mail on 05.08.2017. Service Engineer inspected the machine and technically solved the problem. Again after one month it started same problem. The Complainant intimated the O.P.-1 that A.C. is not working and not cooling. The men of the O.P-1 again repaired AC machine.

The Complainant also stated that he complained over phone. The Engineer of the O.P-1 visited the site and opined, there is manufacturing defects in the AC machine and same need to change whole (inner and outer) AC.

That on 25.07.2017 Mr. ArunavaMitra and Mr. Shahid Anwar men the O.P.-1 changed only inner AC vide No. 21585 dt. 25.07.2017and assured that they would change outer.

But till date no positive Action has been taken from the end of O.P.-1 to change of AC.

That the Complainant has observed that there is gas leaking problem in the AC, bad odours coming out and the AC is not functioning and is lying out of order since long till now.

That the Complainant sent several e-mail dt. 05.08.2017, 06.08.2017, 14.08.2017, 19.08.2017, 22.08.2017, 25.08.2017, 29.08.201, 31.08.2017 and lastly on 08.09.2017 requesting the O.P-1 to redress the grievances of the Complainant. Despite receipt of several e-mails O.P-1 remained silent to solve the problem.

That there is manufacturing defect in the AC machine.

As a result the Complainant could not use AC to meet the scorching weather and has suffered monetary loss, mental agony and harassment.

That O.Ps. are deficient and negligent in service.

The Complainant prayed for replacement of the machine with a new one or refund of the cost of the Rs. 33,800, and also prayed for Rs. 5,00,000/- forcompensation and Rs. 5,000/- as litigation.

Written Version by O.P.-1

That the Complainant had purchased one AC unit model No. Daikin 1Q ECO INV SAC RKH FTKH 35 RRVI6 manufactured by O.P.-1 on 28.02.20167 from O.P.-2 for a sum of Rs. 33,800/- (Rs. Thirty Three Thousand and Eight Hundred/-)

It is stated that first the Complainant was registered in the mouth of August, 2017 regarding about bad smell coming out from indoor unit when its works then immediately technicians of the O.P-1 visited the premises of the Complainant and duly replaced the indoor unit on 27.07.2017 as per customer service report however the Complainant wanted to change the ODU without any reason then technicians of Respondent No. 1 explained that there is no manufacturing defect in the outdoor Unit.

Further stated that the Complainant again raised the Complainant in the month of August with same issue then technicians of O.P-1 again visited at the location of the Complainant, after duly investigation nothing found defective and no bad smell detected as per customer Service report on date 25.08.2017. That the grievances of the Complainant resolved by the Respondents. AC unit was working fine and giving proper cooling without raising any bad smell. That O.Ps.were utter surprised & shocked, when the Complainant filed the present suit before the  Hon’ble Forum without any justifiable cause however there is no grievance pending at present in this matter.

That even though the AC unit was not having any manufacturing defect and despite regular engineer’s visit to the Complainant’s premises, the Complainant was adamant and made allegations on performance of AC  unit without any substantial base as well as started demanding replacement of outdoor unit without any defect. That despite stated facts, the Complainant had failed to oblige and kept on asking for replacement from the O.P-1 without any shortcoming on the part of the O.P-1 for which he is not entitled as per product terms and conditions.

That without prejudice to the contents aforesaid as a pure gesture of goodwill, the O.P.-1 duly attended the Complainant calls of the Complainant, that technician of Respondent No. duly replaced the IDU and resolved the grievance of the Complainant

and no grievances are pending at the present time. It is further stated that the present the Complainant is devoid of any material particulars and has been filed merely to harass and gain undue advantage and unjustified monies from the O.P.-1 and hence the Complainant deserve to be dismissed in limine.

            That O.P.-1 has on receipt of knowledge of the Complainant detail, immediately deputed its officials to visit the Complainant to understand and rectify and problem as alleged by the Complainant. That even though there was no shortcoming in the make or manufacturing of the product of the company and without acknowledging kind gesture of the O.P.-1, the complainant had filed present the Complainant with the sole intent to harass the company without any justifiable cause since the product of the O.P.-1 was neither faulty nor defective.

            That such understanding is required to avoid litigation and wastage of time of themselves and even it is gross abuse to the process of law and time of this Ld. Forum hence the Complainant is not entitled for any compensation. Further the Complainant had grossly failed to make out a case against O.P.-1 for unfair trade practice or deficiency of service and merely writing this term in its the Complainant in Compliance of the Consumer Protection Act without any substantial proof.                                          

            That theOPs. stated that the complainant contents of para5 are matter of record and hence not denied. However itis vehemently denied that O.Ps has not given proper response and AC was not working properly. It is pertinent that technicians of the Respondent No.-1 visited the location of the Complainant and duly checked the said issue after investigation found that some bad smell coming out from Indoor Unit at the time of working but AC was giving proper cooling and there was no other issue found so after duly investigation technicians of respondent No.-1 replaced the indoor unit on 12.07.2017 and resolved the grievance of the Complainant and When the Complainant again raised the Complaint about same issue, the technicians of Respondent No.-1 again visited at the location of the Complainant, after duly investigation nothing found defective and no bad smell detected as per customer service report on dt. 25.08.2017. That the grievances of the complainant resolved by the respondents, AC Unit was working fine and giving proper cooling without raising any bad smell.

            That the OPs.Stated that the Complainantcontents of para 6 and 7 are false, misleading vexatious and misconceived and hence denied vehemently. That service engineer of the respondent No. duly checked the indoor and outdoor Unit and problem was only in indoor unit so it was replaced by the service engineer after replacement of indoor unit. It was working fine and giving proper cooling. Further stated that there was no problem in the outdoor unit and gas leaking in the said AC so there is no question arise for replacement of outdoor unit.

            That O.Ps stated that the Complainant contents of 9 and 10 are wrong and hence denied. It is stated that after receiving the Complaint from the Complainant, Answering O.P. immediately sent their technicians to resolve the problem faced by the Complainant and after duly investigation technician of Respondent No.-1 found that there was no manufacturing defect in the said AC. Hence the Complainant is alleging manufacturing defects in AC on basis of his own surmises and conjectures. Further vehemently denied that the Complainant has suffered any mental stress, agony, or monetary loss after purchasing of said AC. It is further stated that the Complainant had enjoyed the benefit of said AC and Respondent No.-1 resolved all grievance of the Complainant hence there was no deficiency of service on part of answering respondents hence it cannot be said that any loss mental, harassment or monetary has been caused to the Complainant.

That O.Ps. stated that the Complainant contents of para 11 are wrong and hence denied. It is stated that first the Complainant made a call regarding bad smell issue in the month of July and technicians of Respondent No.-1 resolved the issue

after replacing indoor unit and AC was working fine without raising bad smell after one month the Complainant again registered a Complaint with same issue then again technician of O.P. visited and duly checked said AC there was not defect detected as per customer service report. Hence it is categorically proved that there are no grievances pending at present therefore no cause of actions arise in the present suit and present suit liable to be dismissed.

            That O.Ps stated that the Complainant contents of last para (prayer clause) are wrong hence denied. That The Complainant had grossly failed to provide proof of defect on the basis of any documentary evidence on record. This fact also establishes the malafide intention of the complainant to gain undue advantage by filing this frivolous and concocted the Complainant. It is stated in present case that alleged complaint relates to manufacturing defect in the product which can only be determined with proper analysis or test of the goods by the appropriate laboratory as stated under the provision of the Consumer Protection Act. It is stated that the alleged defects of the Complainant are based on his conjecture and surmises which can never take the shape of the evidence. That the Complainant is not an appropriate agency to determine any defect or so called manufacturing defects as it requires a specialized technical knowledge which Ld. District Forum can refer to appropriate agency to determine. This fact also establish the malafide intention of the Complainant to gain undue advantage by filing this frivolous and concocted complaint.

            The O.P.-2 did not attained the proceedings and did not file WV in spite of receiving summons from the Forum and the case ran ex parte against the O.P.-2 in terms of order 09 date 06.03.2018.

Points for Discussion

1) Whether the complainant isa consumer under the O.Ps.;

2) Whether the O.Ps.are deficient in rendering service to the complainant;

3) Whether the complainant deserves relief.

Decision with Reasons

1) We have perused the documents relating to the purchase of the AC machine model no. Daikin 1.0 Eco INV SAC RKH/ FTKH 35 RRV16 Valued at Rs. 33,800/- vide tax invoice of Venus Appliances no. VA/6871/2016-17 dated 28.02.2017, returnable challan/delivery no. 81002881 dated 22.07.2017 for one no. RA IDU (3.5KW, 1 TON ECO. INV), extract of warranty card, service completion certificate and a no. of emails sent to and sent by both Parties.

2) The dispute centres round the functioning of the AC machine.It is alleged in the Complaint that the machine developed problems of insufficient cooling from three months of purchase. The Complainant reportedly phoned 3 to 4 times to the customer care of O.P.-1 and sent email on 05.08.2017. Though the service engineer inspected and technically solved the problem on 05.09.2017, the machine started same problem one month after and the service personnel of O.P.-1 again repaired the machine on 25.07.2017 and changed the inner AC vide no. 21585 dated 25.07.2017 (the dates of first inspection and the change of inner part appear confusing to us).It is stated by the Complainant that the O.P.-1 assured change of outer unit also but they did not change outer of AC. The Complainant reported the problem of gas leaking and bad odour and the machine is not functioning and is lying out of order since long. The Complainant sent a number of emails to the Petitioner dated 05.08.2017,06.08.2017, 14.08.2017, 19.08.2017, 22.08.2017, 25.08.2017, 29.08.2017,31.08.2017 and lastly on 08.09.2017 requesting the O.P.-1 to redress the grievance but the O.P.-1 remained silent.

                        3) The O.P.-1 questioned at serial 4 of WV under B PRELIMINIARY OBJECTION the jurisdiction of this Forum to treat this case quoting “17 courts in Delhi shall have exclusive in the event of any dispute” and they have quoted judgement of the Hon. Supreme Court in AIR 1989 SC 1239 (in ABC Laminart P Ltd. vs. AP Agencies)and in (2013) 9 SCC 32 (in Swastik Gases Pvt Ltd. vs. IOC Ltd. ).

                        It may be noted that Territorial jurisdiction of the Consumer Forum is well defined under section 11 (2) of the Consumer Protection act, 1986 which is a Central Act also. When there is a clear provision in a statute, no law pronounced by any court is applicable. If there is any obscured provision, the court may intervene and pronounce law which is binding on lower courts.So, the citations given by the O.P.-1 has no ratio with the instant case.Moreover in a number of judgements pronounced by the Hon’ble Apex Court, relief of a Consumer lies in his option where he would lodge the complaint in a civil Court, Tribunal or through Arbitration or in the Consumer Forum. Section 3 of the Consumer Protection Act gives the Forum the power to deal with cases of Consumer Complaints.

                        Moreover, in this time of Modern Technology, the idea of filing complaint on dispute on any product at a particular place is totally backdated. If that place, be it registered office or the head office is located at a particular point of the Country and all disputes are lodged at the same office, it will be overburdened and create chaotic condition and will seriously affect the resolution of the Complaints.

                        4) At para 5 of  WV of O.P.-1 , it is stated that O.P.-1 visited the location of the complainant and duly checked the said issue and after investigation found  some bad smell coming out from the indoor unit at the time of working but the  AC machine  was giving proper cooling. It is also stated at the said para that the O.P.-1 replaced the indoor unit on 12.07.2017. Even after change of the indoor unit the Complainant raised the same issue of non-functioning of the AC machine and the O.P.-1 again visited, investigated and found no defect and no bad smell detected as per customerreport of 20.08.2017.

                        It is tobe considered that in spite of changing the indoor unit the same problem continued as per the Complainant and the O.P.-1 stated that the AC was running quite ok. If even after changing the indoor unit the machine does not have cooling effect and smells out bad odour, it cannot be said that the AC machine was running perfectly ok. If the machine ran quite ok, then why should the Complainant send emails again and again? It is also true, from the beginning the machine did not show good service and the O.P.-1 had to change the indoor unit. In the WV as well as BNA the O.P.-1 averred that the indoor unit was changed as a gesture of good will on the part of O.P.-1. If that be so, the O.P.-1 should have changed the outdoor unit also as a mark of goodwill gesture, otherwise it should be construed that the change of indoor unit was necessary and so was changed. Since the Complainant complained of bad cooling effect and bad odour, it should be construed that the machine is still not ok.

                        5) The Complainant insisted on replacement of the old machine with a new one. The Opposite Party vehemently disputed such replacement at WV para 11 and cited a case reference of II (2008) CPJ 111 NC inTATA ENGINEERING AND LOCOMOTIVE COMPANY LTD. VS. SUNIL BHASIN which deals with the fact that in case of complaint of manufacturing defect, the item in question should be sent to any workshop or obtain any independent expert opinion. At the said para the O.P.-1 erroneously stated the word “Vehicle” which should have been the “AC machine”.

Without going into dispute whether the AC machine has any manufacturing defect or not, we may say that the said machine suffers from defects due to which the machine fails to give desired cooling effect as well as emits bad odour.  In such circumstance, the machine deserves to be appropriately repaired so that it may function smoothly.

                        Consequently we do not consider the complainant’s prayer for full replacement of AC machine and we like to adhere to prayer (d) of the complainant.

                        6) It is evident that the Complainant paid the consideration money of Rs. 33,800/- tothe O.P.-2 being the selling agent of O.P.-1. So, the Complainant is the consumer under the O.Ps. in terms of section 2 (1) (d) (i)/(ii) of C.P. Act,1986.

                        As the O.Ps. failed to redress the grievance of the Complainant by way of repairing the AC machine completely in terms of warranty card within the warranty time, O.Ps. are deficient in terms of section 2 (1) (f)/(g) read with section 2 (1) (o) of the Act.

                        So, the Complainant deserves some relief, as a purchaser buys goods for satisfactory service and when he does not get the same his grievance should be made up.

                        In the Circumstances of above discussion, we are inclined to pass

ORDER

                        That the Complaint be and the same is allowed on contest against O.P.-1 in terms of section 13 (2) (b) (i) of the C.P. Act 1986 and ex- parte against O.P.-2 in terms ofsection 13 (2) (b) (ii) of the C.P. Act 1986;

                        That the Opposite Parties are directed to jointly and severally repair the AC machine in question, making it completely free from defect, with change of parts, if necessary, free of cost and giving 9 months’ warranty, within 30 days from the date of this Order;

                        That the O.Ps are directed tojointly and severally  pay to the Complainant Rs. 5,000/- as compensation under section 14 (1) (d) of the Act for physical harassment  and mental agony of the Complainant and Rs. 5,000/- as litigation cost, within 30 days from the  date of this Order;

                        That non-compliance of any of the above Orders by any of the Opposite Parties shall entitle the complainant to put the Order into execution in terms of section 27 of the Act ibid.

                        Let the copy of Order be handed over to the parties when applied.