BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No. 108 of 2017
Date of Instt. 18.04.2017
Date of Decision :16.05.2018
Sushma Sud aged about 68 years daughter of Sh. D.D. Sud, Resident of House No.665, G.T.B. Nagar, Jalandhar.
..........Complainant
Versus
1. ETA General Private Limited, through its Managing Director/ Divisional Manager/ Branch Manager, SCO 2475 – 76, Sector 22-C, 2nd Floor, Chandigarh- 160022, Ph No. : 0172-5087288, 4421121.
2. Chetan Sales, through its Partners/ Proprietor Sh. Ranjit Saini, (Authorised dealer – ETA General Private Limited) E.R. 19, Civil Lines, Hind Samachar Street, Jalandhar, Punjab.
3. Mohamed Ejajudin, Chief Executive Officer, ETA General Private Limited, SCO 2475 – 76, Sector 22-C, 2nd Floor, Chandigarh- 160022.
4. K.C. Puveyia, General Manager, ETA General Private Limited, SCO 2475- 76, Sector 22-C, 2nd Floor, Chandigarh – 160022.
5. Sanjay Devgan, Assistant General Manager, ETA General Private Limited, SCO 2475- 76, Sector 22-C, 2nd Floor, Chandigarh – 160022.
.........Opposite parties
Complaint Under Section 12 of the Consumer Protection Act.
Before: Sh. Karnail Singh (President)
Smt. Harvimal Dogra (Member)
Present: Sh. Gopal Thakur, Adv. counsel for complainant.
Sh. Narinder Singh, Adv.,counsel forOP No.1to 5.
Order
Karnail Singh (President)
1. This complaint is filed by complainant wherein alleged that the complainant purchased one O General 1.5 Ton Split Air Conditioner Model No. ASGA18ACT (Indoor Unit), Model No. AOGR18ACT (Outdoor Unit) S No. T0697751 with fittings from OP No.2 being autorised dealer of OP No.1 i.e. for Rs. 48,500/- vide retail invoice o. R-579 dated 26/3/2014 with five years warranty. The OP No.1 is the company who has appointed the OP No.2 as authorised dealer. The OP No.3 is the Chief Executive Officer, OP No.4 is General Manager and whereas the OP No.5 is the Assistant General Manager of OP No.1 and are responsible for day to day business of the OP No.1 being its officials. The complainant has learnt now that they are also responsible for the negligent service, lack of service and for supplying defective piece of air conditioner to the complainant. The complainant purchased the above mentioned air conditioner from the OP No.2. Right from the day of purchase of the air conditioner by the complainant, it has not functioned satisfactory as their being a manufacturing defect.
2. That after the installation of the said air conditioner purchased by the complainant, the performance/ functioning of the air conditioner was not satisfactory, it was not giving proper cooling air as confessed by the officials of the OPs that unit which was supplied to the complainant is having a manufacturing defect. Various experiments were done on the air conditioner by the different mechanics sent by the OPs but the defect remained as it is and there was no proper cooling air of the air conditioner and it was not giving proper cooling air. The complainant is having other air conditioners installed in her house which are functioning properly but with the present unit which was purchased by the complainant having constant complaint/ defect in the air conditioner. The complainant submitted number of complaints, requests to the OPs and even to the service centre, but complainant has been put off with one pretext or the other. The air conditioner supplied to the complainant is having manufacturing defect and the same being a defective piece has been fraudulently sold to the complainant. The complaints were lodged to OPs immediately after the purchase of the above mentioned air conditioner. The unit of the air conditioner was opened several times by the mechanics of the OPs. There is constant negligence, lack of service, mal-trade practice on the part of the OPs. The complainant suffered a loss physically, mentally and as well as financially on account of the negligent acts of OPs. Various complaints were submitted by the complainant to the OPs and the OPs had been doing experiments on the air conditioner and the compressor was also changed, even then the air conditioner did not function properly and the same is still running not even like a cooler. So there is a manufacturing defect in the air conditioner and then the complainant served a legal notice but all in vain and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to replace the old AC with the new AC and also directed to pay compensation of Rs. 50,000/- + price of the AC i.e. Rs. 48,500/- in total Rs. 98,500/-.
3. Notice of the complaint was given to the OPs and accordingly all the OPs appeared through its counsel and filed joint reply, whereby contested the complaint by taking preliminary objections that complaint of the complainant is not maintainable in the present form as has been filed against the OPs as the complainant himself is guilty and in order to hide his own act and conduct, the complainant has filed the present false complaint just to put pressure upon the OPs in order to cause wrongful loss to the OPs. The true facts are that the complainant had purchased 1.5 Ton Split air conditioner on 26/3/2014. The said 1.5 Ton AC so purchased by the complainant is manufactured for installing the same in the area of 150 sq.ft. and accordingly the same was sold to the complainant in proper working condition. But the complainant himself is at fault because he has installed the said 1.5 Ton A.C. in the area of 400 square feet which is Lobby of the house of complainant in “L” Shape having open stairs and in the said area of 400 sq.ft. two refrigerator are also lying there in working condition, in this way, the complainant is not entitled for lodging any complaint against the OPs. It is further pertinent to mention here that the Survey Engineer Team of the opposite parties had visited the house of the complainant many times and checked and cleared entire circumstances to the complaints of the complainant but the complainant was not ready to listen and ultimately, she had filed the present false and frivolous complaint against the opposite parties just to harass the opposite parties. It is also make it clear that in the month of August 2016, the compressor of the A.C. in question was changed just to satisfy the false complaint of the complainant which was already in good working condition, but even then complainant leveled false allegations against the OPs and always making false complaints to the OPs. The complainant is at liberty to check the A.C. in question from any other expert and in case any defect found in the AC or on the part of the OPs, the OPs are liable to remove the said defect or to fulfill the claim of the complainant. It is further aware that the present complaint has been filed by the complainant without any cause of action against the OPs and even the complainant does not have any locus standi to file the present complaint against the OPs. On merits, the purchase of the AC by the complainant is admitted and even the factum in regard to making a complaint in regard to defect in the AC is also admitted by the OP but the other allegations made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.
4. In order to prove the case of the complainant, counsel for complainant tendered into evidence affidavit of complainant Ex. CA and one affidavit of Vinay Sud Ex. CB alongwith documents Ex. C1 to Ex. C10 and closed the evidence.
5. Similarly, counsel for the OPs No. 1 to 5 tendered into evidence affidavit Ex. OP/A and some documents Ex. O-1 to Ex. O-3 and further tendered another affidavit Ex. OP/B and then closed evidence.
6. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.
7. After taking into consideration, the the entire facts as elaborated before us by the respective counsel for the parties and then find that the purchase of 1.5 ton AC by the complainant after making a payment of Rs. 48,500/- is admitted and even the complainant has brought on the file copy of invoice Ex. C1. It is also admitted that complainant has made several complaints to the OPs and in response to that Survey Engineer Team of the OPs checked the AC and found that the said AC is manufactured for the area of 150 sq.ft. whereas the complainant has installed the said AC in the area of 400 sq.ft. which is lobby of the house and as such, the said AC is not sufficient to cool the such huge area of 400 sq.ft. and these factum has been fortified by the OP from Sandeep Sharma Manager and Ganish Kumar Technician whose affidavits are Ex. OP/A and Ex. OP/B. Apart from that, the OP has also brought on the file some photographs Ex. O-2 and Ex. O-3 of the area where the said AC had been installed and further alleged by the OP the compressor of the AC had already been changed just for the satisfaction of the complainant and there is no manufacturing defect in the said AC.
8. We have considered the plea taken by the OPs and find that the complainant has alleged that there is manufacturing defect in the AC since from the day of its purchase and accordingly, the complainant made number of complaints to the OPs but the OPs made so many experiments on the AC and even the compressor was also changed but AC did not start functioning properly because the AC failed to give proper cooling as required and even in the cooling of the AC is not even like a cooler. So it is admitted that on the allegations/ complaints of the complainant, the OP has admittedly send their team of survey/ engineer as alleged in the reply, if so then ball goes to the courtyard of the OP to prove that there is no manufacturing defect in the AC. If the OP did not visit and inspect the AC through their engineer then duty casted upon the complainant to prove the allegations that there is manufacturing defect in the AC but when the product is checked by the engineer of the OP then OP has to discharge the onus that there is no manufacturing defect in the product. No doubt, the OP has examined one technician namely Ganish Kumar whose affidavit is Ex. OP/B, if we scanned the affidavit of aforesaid technician then we can say without any hesitation that the said technician did not say even a single iota of word in regard to checking of the AC by himself or find no defect or found that the AC is properly working, so the affidavit of the said technician Ganish Kumar having no value in the eyes of law because he did not say in regard to his experience as technician and moreover he did not say that he checked the AC. We find that it is the duty of the OP to examine the engineer of the team who visited the house of the complainant and inspected the AC, the evidence of the said engineer is necessary in this case to establish that there is no manufacturing defect in the AC but for the best known reason, the OP has not examined any one of the said technician/ engineer and as such, we came to the conclusion that the allegations made by the complainant that there is a manufacturing defect is proved because the complainant herself tendered her affidavit Ex. CA and also brought on the file Ex. CB affidavit of one independent person Vinay Sud and also send a legal notice Ex. C2.
9. Apart from above, the OP has took a plea that the AC in question is designed to cool 150 Sq.ft. area whereas the complainant installed the said AC in the lobby which is having approximately 400 sq.ft. but this version of the OP is not tenable or acceptable because one independent technician G.P. Singh visited the spot on the direction of this Forum and submitted his report dated 11/5/2018 wherein he reported that he called the OP at the spot for inspection purpose but they did not come present and further reported that the AC so purchased from the OPs have been removed from the installation place and where the complainant has got installed new AC after purchasing from some where else and further reported that the sitting area is sufficient for the unit installed, the complainant has purchased new AC and after removing the AC in question, installed therein a new AC 1.5 Ton and that AC having sufficient cooling for that area as per report of the technician but in regard to this factum, the OP has not examined or brought on the file any expert witness that the area is more than the capacity of 1.5 Ton AC. So with these observations, we are of the considered opinion that the plea taken by the OP is not sustainable in the eyes of law.
10. In the light of above detailed discussion, we came to conclusion that the AC so purchased by the complainant is proved to be having manufacturing defect and as such, there is unfair trade practice and negligence on the part of the OPs and therefore, complainant is entitled for the relief claimed and accordingly complaint of the complainant is partly accepted and OPs are directed to return the price of the AC i.e. 48,500/- with interest @ 9% per annum from the date of purchase i.e. 26/3/2014 till realization and further OPs are directed to pay compensation of Rs. 15,000/- for mental tension and harassment to the complainant. The entire compliance be made within one month from the date of receipt of copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
11. Copies of order be supplied to the parties free of cost, as per rules. File be indexed and consigned to the record room.
Dated Harvimal Dogra Karnail Singh
16.05.2018 Member President
