Dt. 29.03.2016
JAGANNATH BAG, PRESIDING MEMBER
The present appeal is directed against the Order, dated 31.07.2014, passed by the Ld. District Consumer Disputes Redressal Forum, South 24- Parganas , in CC Case No. 174 of 2014, whereby the complaint was allowed ex parte against the OPs with cost and compensation.
The Complainant’s case, in brief, was as follows:
The Complainant purchased a Hitachi 2-ton Split AC (324 HSD) on 23rd June, 2012, from OP No.1 / Proforma Respondent herein. The machine was installed on 27th June, 2012. Immediately after installation of the machine, the remote control was found defective and changed. The installation was done by the Aircon Refrigeration and Co. On 28th June, 2012, it was found that the machine stopped cooling . On the advice of the said Aircon Refrigeration Co., the Hitachi Customer Care /OP No.2 was informed . The serviceman of the said Hitachi Customer Care visited the place of the Complainant and informed that there was a gas leak due to which the compressor was not working . They refused to do any rectification as according to them , the gas leakage was for faulty installation of the AC Machine . However, after persuasion they rectified the fault, but the problems cropped up again within a few months. In the month of June , 2013, the AC stopped cooling again . The service personnel of OP No.2 informed that since the warranty period was over , they would charge for rectification. Again, after persuasion the machine was rectified but without any guarantee. The Complainant sent 3 e-mails to the Manager, Hitachi Customer Care, but there was no response. The Consumer Affairs Department was approached for a mediation, but the OP did not attend the mediation meetings. However, the OP No.2 sent their service personnel who wanted to refill the gas and do the repair but pointed out that even after such refilling the trouble may appear again and there was no guarantee from their side in the matter. The OP did not replace the defective machine by a new one. The AC machine was lying unattended. In the said situation the complaint was filed with a prayer for direction upon the OP to refund the amount paid by the Complainant to the tune of Rs. 50,000/- and also compensation of Rs. 30,000/- apart from litigation cost.
The OPs did not appear and contest the complaint case.
Ld. Forum below observed that though after repeated servicing the machine was admitted by the OP to be a defective one, the same could not be repaired by them. The complaint was allowed with direction upon the OPs to replace the old AC machine with a new one within 7 days and also to pay compensation of Rs. 25,000/- and litigation cost of Rs. 3,000/- within 7 days from the date of order , failing which the entire amount will carry interest @ 10% till recovery .
Being aggrieved by and dissatisfied with the order of the Ld. Forum below the Appellant has come up before this Commission with a prayer for direction to set aside the impugned order.
The memorandum of appeal has been filed together with copies of the impugned order , the petition of complaint, the warranty and other documents including the e-mails sent to the Manager, Customer Care Hitachi , Kolkata.
Ld. Advocates appearing for the Appellant and the Respondent No.1 have been heard , while the Respondent (Proforma ) remained absent.
Ld. Advocate appearing for the Appellant submitted that the Appellant had provided necessary service on every occasion whenever contact was made with them. The machine was found to be working properly as and when gas was filled. But the Aircon Refrigeration Co. which was responsible for defective installation of the machine was not made a party. As a result, the complaint suffered from non-joinder and mis-joinder of necessary party. Again, the company gives warranty for a defect free product but the said product being damaged by mis-handling can not be treated as a defective product and on that very score , the impugned order was liable to be set aside. Ld. Forum below failed to appreciate that the Complainant prayed for refund of money only which is but a money claim and beyond the scope and ambit of the Consumer Protection Act. Ld. Forum below arbitrarily passed the order directing the OPs to replace the said AC machine. There was no expert opinion about the alleged manufacturing defect of the AC machine and as such, the machine can not be treated to be with any manufacturing defect. In the absence of any evidence confirming manufacturing defect , the decision of the Ld. Forum below to replace the AC machine is erroneous and suffers from legal infirmity. The impugned order deserves to be set aside.
Ld. Advocate appearing for the Respondent /Complainant submitted that immediately after installation of the machine , the remote control was found to be defective and the same had to be changed by the service personnel. Inspite of repeated repairing by the service personnel of the Hitachi Customer Care , the machine was not made trouble free and finally the machine was lying non-functional which shows that the machine was having a manufacturing defect. The manufacturing company appointed their agents and their authorized service provider attended several times but inspite of their efforts the AC machine was not made functional . It is the duty of the Appellant as a service provider to either replace the AC machine or pay the entire amount spent for purchase of the machine with other costs and compensation for harassment and mental agony caused to the Respondent/Complainant. The impugned order has been passed in a reasoned manner with judicious consideration and deserves to the up held.
We have perused the materials on record and heard the Ld. Advocates.
The point for consideration is whether the impugned order suffers from material irregularity or legal infirmity.
Decision with Reasons
It is a fact that the Respondent /Complainant purchased a Hitachi make AC machine from their authorized dealer i.e., Proforma Respondent and the machine was installed by their authorized agent. It was opined by the service personnel of the Appellant that there was a faulty installation of the machine . The machine was repeatedly repaired during as well as after the warranty period . This fact could not be denied by the Appellant. Such repeated repairing of the machine itself is pointer to the fact that the A/C machine was not working properly, but at the same time it is seen that no documentary evidence, like expert report in support of manufacturing defect of the A/C machine was produced before the Ld. Forum below. In fact , there is no observation of the Ld. Forum below in that regard. The machine is lying in defective condition without repairing and the Appellant appears to have taken no initiative to get the machine rectified.
It is seen that the Respondent /Complainant in her petition of complaint prayed for direction upon the OPs for payment of a sum of Rs. 50,000/- as refund of the amount as paid for purchase of the machine, apart from compensation of Rs. 30,000/- and cost of litigation . Ld. Forum’s order to replace the AC machine with a new one appears to be not exactly what has been prayed for in the petition of complaint . It would be prudent to hold that the machine as lying with the Respondent / Complainant should be thoroughly repaired with all necessary accessories to the full satisfaction of the Respondent / Complainant with a guarantee of free service for a period of one year from the date of delivery of the repaired AC machine. In that view of the matter the impugned order may be modified . The appeal may be allowed in part. Hence,
Ordered
That the appeal be and the same is allowed in part with direction upon the Appellant and the Proforma Respondent to get the AC machine repaired to the full satisfaction of the Respondent / Complainant within a period of 3 weeks from the date of this order with guarantee of free service and free repairing , if necessary, with free supply of spare parts etc. for a period of one year from the date of delivery of the repaired machine . A sum of Rs. 10,000/- in stead of Rs. 25,000/- as ordered by the Ld. Forum below shall be paid as compensation to the Respondent/ Complainant for harassment and mental agony apart from cost of litigation of Rs. 3,000/- as allowed by the Ld. Forum below. The impugned order stands modified accordingly. The said sum of Rs. 10,000/- + Rs. 3,000/- shall be paid in equal share by the Appellant and the Proforma Respondent within 40 days from the date of order failing which interest @ 9% p.a. shall be payable to the Respondent / Complainant till full realization. There shall be no separate order as to costs.
