Consumer Complaint No. 255 of 2014
Date of filing: 17.12.2014 Date of disposal: 07.12.2016
Complainant: Sri Atanu Nayek, S/o. Sri Lakshmi Narayan Nayek, resident of 30, Payrakhana Road, Mayurmahal (beside Rani School), PS. & District: Burdwan.
-V E R S U S-
Opposite Party: 1. Exult Agency Pvt. Ltd. (Unit Joy electronics), 23, G.T. Road, near Head Post Office, PO., PS. & District: Burdwan, PIN – 713 101.
2. Carrier Midea India Pvt. Ltd., having its office and unit Plot No. 10A, Sector-5, G. C. Bawal, Haryana – 123 501, India.
Present: Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant: Ld. Advocate, Sweta Dutta.
Appeared for the Opposite Party No. 1: None.
Appeared for the Opposite Party No. 2: Ld. Advocate, Shyamal Kumar Ganguly.
J U D G E M E N T
This complaint is filed by the Complainant u/S. 12 of the Consumer Protection Act, 1986 alleging deficiency in service, as well as, unfair trade practice against the OPs as the OPs have supplied him a defective Air-Conditioner Machine.
The brief fact of the case of the Complainant is that he purchased a Split Air-Conditioner of 1.5 ton of ‘Carrrier’ made from the local authorized dealer of the Company, namely, M/s. Joy Electronic on 21.05.2013 by making payment of Rs. 38,000=00 towards the cost of the said A.C. The Complainant also paid a further sum of Rs. 2,300=00 towards installation charge of the said A.C. The men of the Company installed the said A.C. in the bed room of the Complainant at his paternal house. Since installation of the A.C. within 2/3 weeks it was found that the A.C. was not working properly in as much as there was less cooling and the very purchase of the A.C. seems to be frustrated since in setting the temperature at the maximum cooling i.e. 18 degree Celsius, the machine failed to work properly and sufficient cooling was absent. The Complainant noticed that the Auto Cut of the A.C. was not working and even after running the machine for more than an hour neither the Auto Cut worked nor cooling was made. The Complainant informed the matter to the OP-1 requesting to look into the matter immediately as inspite of running of the A.C. it was unbearable to stay in the room due to scorching heat which primarily proves the non-working of the Air-Conditioner. The OP-1 informed the Complainant that the matter would be taken up shortly and the service wing of the Company would be intimated who could attend the complaint within one or two days. The Complainant was supplied a complaint docket number being 1494516 dated 10.06.2013. The Company personnel thereafter visited the Complainant’s house and attended the complaint and after passing more than half an hour they left the place by assuring that the problem would not occur and the same will be resolve within a very short span. During such visit they also admitted that the said A.C. failed to give sufficient and desired cooling. However, on checking and verifying the same the Complainant found that the problem was still persisted and the Auto Cut was not working also. The Complainant brought the matter to the notice of the Company personnel who attend the complaint who conceded to the Complainant’s claim and assured them that they would intimate the Company so that the Service Engineer of the higher rank would attend the complaint in order to get the problem solved. Unfortunately the Complainant lodged several complaints to the OPs orally as well as through e-mail requesting to solve the problem as the purchase of the said A.C. was becoming fruitless. The references of such complaint of the Complainant are dated 14.06.2013, 22.06.2013, 10.07.2013 etc. The respective personnel of the Company also made visit to the Complainant’s house on another 2-3 times, but unfortunately no fruitful result was yielded. During entire period of summer the Complainant had to live along with his aged and ailing parents without A.C. The OP-1 at the initial stage responded to the Complainant’s complaint but ultimately started to avoid and did not take proper action for redressal of the Complainant’s claim. The Complainant has strong reason to believe that the Air-Conditioner sold to him is suffering from gross manufacturing defect in as much as almost since its installation it never worked properly and inspite of several visits by the service personnel of the Company, the problem could not be removed and as such the A.C. machine became useless. The Complainant having lost all faith and being frustrated ultimately demanded before the OPs for replacement of the said A.C. by issuing an e-mail on 21.05.2014. The OP-2 responded the e-mail stating that the complaint would be resolved as early as possible through an e-mail dated 22.05.2014. On 23.05.2014 again one service personnel of the Company visited the house of the Complainant but the defects could neither be removed nor resolved and at that point of time the Complainant again demanded for replacement of the faulty and defective A.C. According to the Complainant such action and inaction of the OPs constitute gross negligence and deficiency in service, as well as, unfair trade practice for which having no alternative the Complainant has filed the present complaint before this Ld. Forum for redressal of his grievance. By filing this complaint the Complainant has prayed for direction upon the OPs to replace the defective A.C. machine, to pay a sum of Rs.1, 50,000=00 as compensation due to harassment, mental pain and agony and Rs. 20,000=00 as litigation cost to him.
The petition of complaint has been contested by the OP-2 by filing written version contending that the complaint is vexatious, baseless and abuse of the process of law. The Complainant has made unjustified claim because as per the terms of warranty the Complainant is at best entitled to get repair or replacement of the defective parts, if any in the unit purchased, but not at all entitled to get replacement of the A.C. machine. As per settled principles of law the Ld. Forum is bound by the terms and conditions agreed between the parties which constitutes the subject dispute. As per requirement of the Complainant the OP-2 had attended to each and every complaint and each occasion the subject unit was found to be working perfectly, therefore this OP cannot be held liable for deficiency in service as alleged in the complaint. So the complaint is liable to be dismissed. As per the terms and conditions of the warranty this OP cannot be blamed. In the warranty terms it is clearly indicates promise for service and repair with certain conditions, so the Complainant is not entitled to get any relief from this complaint. The OP-2 has mentioned that at the time of installation the machine was working perfectly and there was no cooling problem in it. The OP did not receive any complaint regarding to auto cut feature from the Complainant. So it can be said that the subject unit does not suffer from any defect as alleged by the Complainant. Upon receipt of the complaint dated 10.06.2013 the technician of the OP-2 immediately visited the Complainant’s house for checking the subject unit. On examination the said unit was found working perfectly. However since the Complainant insisted that there is less cooling in the machine, the representative of the OP as a good gesture and for satisfaction of the Complainant topped up the gas in the machine free of cost. So the contra averment as mentioned in the complaint is wrong. The OP-2 has submitted that despite perfect working condition of the machine, the Complainant alleged in his complaint of less cooling and hence the OP has requested the Complainant to allow its technician to take the subject unit to its workshop for thorough check up, but the Complainant has flatly refused and demanded replacement of the said machine and threatened to institute a legal case if his demand is not met out. While this OP refused to accede to the illegal demand of the Complainant, then he used to make repeated complaints in the help line number with ulterior motive for making a case against this OP. According to the OP-2 as this complaint is devoid of any merit, liable to be dismissed with compensatory cost.
The Complainant and the OP-2 have adduced their respective evidences on affidavit along with certain documents in support of their contentions. As the Complainant has made allegation in respect of the defective Air-Conditioner, hence one independent Expert was appointed for examination of the questioned A.C. machine. The ld. Expert namely Sri Debi Das Ghosh being an Electrical Engineer was appointed by this Ld. Forum who examined the questioned A.C. machine on 28.08.2016 at the house of the Complainant in presence of both parties and prior to such inspection as per direction of this Ld. Forum notices were given by the Ld. Expert to the both parties. The OP-2 has submitted the written notes of argument on 05.12.2016 after completion of the argument by the parties with a copy to the Complainant who received the same on 03.12.2016. We have carefully perused the written notes of argument and it is seen by us that some new averment has been mentioned in the WNA, which is absent in the written version of the OP-2. As per settled principle of law the contesting parties cannot travel beyond their own respective pleading. Therefore the new averments as mentioned in the WNA cannot be considered and entertained as the same was not stated in the written version of the OP-2. Apart from some new averments the entire statement as mentioned in the WNA has already been mentioned in the written version.
We have carefully perused the entire record, documents filed by the contesting parties, ruling filed by the OP-2, expert opinion filed by the independent expert Sri. Debi Das Ghosh and heard argument advanced by the Ld. Counsel for the Complainant and the OP-2. Be it mentioned inspite of receipt of notice the OP-1 did not turn up to contest the complaint.
It is seen by us that admittedly the Complainant purchased one Split Air-Conditioner of 1.5 ton of ‘Carrier’ make from the OP-1 on 21.05.2013 by making payment of consideration of Rs.38,000=00 along with the installation charge of Rs.2,300=00, at his bed room said A.C. was installed. It is alleged by the Complainant that within 2/3 weeks since its installation it was found that the A.C was not working properly and cooling system defective as there was less cooling along with the Auto Cut of the said A.C. was also not working perfectly. It was noticed by the Complainant that even after running the machine for more than one hour, neither the auto cut worked nor the cooling was done. The OP-1 was informed, complaint docketed, Company Personnel attended the complaint, machine examined by the service engineer, but problem could not be resolved. Thereafter on several occasions the Complainant made complaint in writing with the OP-1 and the Company Personnel have examined the machine on different times, but no fruitful result has yet been yielded. According to the Complainant since its purchase in the year 2013 he could not use the machine properly due to its inherent manufacturing defect and had to pass several summer without the A.C. along with his ailing and aged parents. It is further alleged by the Complainant that though primarily the OP-1 attended the complaint and tried to remove the same, could not, but thereafter the OPs did not bother to attend the complaint and being frustrated and aggrieved with such action and inaction on behalf of the OPs this complaint is initiated by him praying for certain reliefs along with replacement of the A.C. with a new and defect free one.
The contention of the OP-2 is that upon receipt of the complaint from the end of the Complainant they attended the same with utmost diligence and tried their best to remove the defects from the said machine. According to the OP-2 the machine is working perfectly and denied all the allegations as made out by the Complainant. The OP-2 has prayed for dismissal of the complaint having no merit at all with cost.
From the abovementioned averments of the Complainant and the OP-2 it is clear that the A.C. machine purchased by the Complainant is suffering from one or more defects for which the Complainant lodged complaint and the OP-1 on several occasions attended the complaint and examined the machine, but the defects could not be removed. As the Complainant has alleged the defects in the goods, hence in view the Section 13 of the Consumer Protection Act, 1986 an independent Expert was appointed for examining the questioned A.C. machine, who accordingly examined the same on 28.08.2016 in presence of both parties and submitted his report/opinion before this Ld. Forum as per direction. From the Expert opinion it is revealed which runs as follows:-
No cooling effect, though Compressor and all fan motors were running- ‘A.C. started from 11.08 A.M. to 11.26 A.M. at selected temperature of 22 degree Celsius, from 11.26 A.M. to 11.48 at temperature of 19 degree Celsius. At 11.48 A.M. outside room temperature was 34.2 degree Celsius, Ambient temperature 35 degree Celsius and inside room temperature (during running condition of the A.C.) was 31.5 degree Celsius.’
The Cooling effect was observed by the Ld. Expert as 3.5 degree Celsius. The Ld. Expert has opined that Air flow was not satisfactory, leading to localized air throw, ‘Auto-cut’ function system was not working and ‘Auto-Swing’ of indoor unit is not working properly.
It is mentioned by the Ld. Expert that there are some probable reason for the abovementioned faults-
- Compressor is the heart of an air-conditioning system and it is mainly responsible for cooling. A compressor compresses the refrigerant of coolant and circulates the refrigerant through the evaporators and condenser coils. If there is any defect in compressor the system will not give any cooling effect. It is felt that the compressor might not compress the refrigerant to the required condition, leading to insufficient heat extracting capacity of the refrigerant and hence less cooling. Also it is apprehended that the system is flooded with excess oil leading reduction heart transfer and hence insufficient cooling. As this problem is persisting from the time of installation it can be considered as manufacturing problem in the compressor itself from the begging or is an inherent defect of the A.C. machine.
- Less air flow might be due to improper rating of fan motor or efficiency of motor is not satisfactory.
- Air-Conditioner failed to attain the desire temperature so auto-cut could not be tested.
- It is felt that there is problem in auto-swing fan motor so the auto-swing is not functioning properly.
During argument the Ld. Counsel for the OP-2 has argued that the Ld. Expert has failed to mention the actual defect/s which persisted in the A.C. machine, as alleged by the Complainant and the Expert has also failed to specify as to why such defect/s occurred and accordingly based on the probable cause as assigned by the Expert, no legal complaint can be adjudicated upon. According to the OP-2 the Expert’s opinion having no basis and merit at all, the same cannot be entertained to try this complaint. In respect of such submission of the OP-2 we are to say that on 08.09.2016 when the Expert’s Report was accepted by the Ld. Forum both the contesting parties were present. At that point of time the OP-2 did not raise any objection regarding acceptance of the Expert’s opinion. Even thereafter the OP-2 did not take any step to cross-examine the Expert’s opinion by way of filing any questionnaire. Therefore at this juncture the OP-2 cannot take shelter under such baseless and vague plea.
In our opinion as the independent opinion of the Ld. Expert reveals that there are several defects in the Air-Conditioner purchased by the Complainant and the said opinion has not been contradicted by any contesting parties, hence we are also of the view that the machine purchased by the Complainant against payment of entire consideration along with installation charge is suffering from several defects for which the Complainant along with his family members have been suffering from severe problem, mental pain, agony etc. Admittedly after its purchase the machine was duly attended by the service engineer of the Company on several occasions, but the defects could not be removed or resolved by them. Not only that as the Expert’s opinion reveals that till 28.08.2016 several defects are persisted, hence in our view the Complainant is entitled to get it replaced by a new one. It is true for such defects in the purchased machine the Complainant had to run from pillar to post for redressal of his grievance and within warranty period such defects was identified by him in the machine in question. For this reason the Complainant had to face physical and mental harassment, for which he is entitled to get compensation and as by filing this complaint before the Court of Law the Complainant has incurred some expenses, in our considered view he is also entitled to get some amount towards litigation cost.
The Ld. Counsel for the OP-2 has relied on the Ruling of the Hon’ble Supreme Court in the case of Maruti Udyog Limited Vs. Susheel Kumar Gabgotra & Another. We have carefully gone through the same and in our view there is clear distinction by and between the facts of the relied case and the instant complaint. In the relied case warranty condition clearly refers to replacement of the defective parts and not of car, but the warranty cause in the instant complaint reveals undertaking to repair or to replace. As the Company Personnel tried on several occasions for removal of the defects, but the same could not be resolved, hence as per the warranty clause the OP-2 is under obligation to replace the same.
Going by the foregoing discussion hence, it is
O r d e r e d
that the complaint be allowed on contest with cost against the OP-2 and allowed ex parte without any cost against the OP-1. The OP-2 shall replace the questioned Air-Conditioner of the Complainant with new goods of similar description which shall be free from any defect within 45 days from the date of passing of this judgment, in default, the OP-2 shall return the Complainant the price paid by the Complainant to the tune of Rs. 38,000=00 along with interest @6% p.a. from the date of making payment of the said amount till realization. The OPs are directed not to claim any installation charge further at the time of installing the new A.C. machine from the Complainant as the same was duly paid on earlier occasion. The OP-2 is further directed to pay a sum of Rs.2, 000=00 as compensation due to unnecessary harassment, mental pain and agony and Rs.1, 000=00 as litigation cost to the Complainant within 45 days from the date of passing of this judgment, in default, the Complainant will be at liberty to put the entire decree in execution as per provision of law. The OP-1 is hereby directed to extend its co-operation to the Complainant in respect of replacement of the A.C. machine within the specified period as aforementioned.
Let plain copies of this order be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
