DIST. CONSUMER DISPUTES REDRESSAL FORUM
NORTH 24 Pgs., BARASAT.
C. C. CASE NO-279/2016
Date of Filing: Date of Admission: Date of Disposal:
10.05.2018 16.05.2018 21.02.2018
Complainant: Mr. Dipankar Nandi, S/o Ajoy nandi, Nabapally, P.O.-Nabapally,
P.S.-Barasat, Kolkata-700 124, District-North 24 Parganas,
West Bengal.
Vs.
Opposite Parties:- 1) Flipkart, Kolkata STA, Car Service 5 Ratings,
Near Domestic Airport, Old Complex (Office),
Kolkata Airport, Kolkata-700 052, West Bengal.
2) Vedik Delcom private Limited,
25D, Harish Mukherjee Road, 1st Floor, Kolkata-700 025,
West Bengal.
3) S.K.D. Engineering Works, Jihar Road, Prafulla Nagar,
P.O. & P.S.-Habra, District-North 24 Parganas,
West Bengal.
4) Hitachi Plant Technologies India private Limited,
DPC 101, 102 & 103, 1st Floor, Block no-4A,
DLF Corporate Park, M.G. Road, Phase-III, DLF City,
Gurgaon, Haryana.
P R E S E N T :- Sri. Bankim Chandra Chattopadhyay………President.
:- Sri. Siddhartha Ganguli……………….. Member.
:- Smt. Silpi Majumder…………………… Member.
ORDER: 15
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 did not replace the defective Air Condition Machine with a new one of similar description till filing of this complaint inspite of several requests.
The brief fact of the case of the Complainant is that the Complainant booked one Hitachi 1.5 tons Inverter Split Air Conditioner White with the OP-1 on 31.03.2016 through on-line shopping address and accordingly on 05.04.2016 the OP-1 send a confirmation through e-mail that the installation of the said AC will be completed by 06.04.2016 and the Complainant was intimated the ticket number for installation as 886712. As nobody contacted with the Complainant till 06.04.2016, he send e-mail to the OP-1 requesting to complete the installation work. Thereafter Mr. Sudip Paul being the authorized engineer of the OP-2 installed the AC at the house of the Complainant. On 08.04.2016 the OP-1 sent an e-mail to the Complainant stating to contact with the OP-1 in case of any problem. But on 08.04.2016 the Complainant informed the OP-1 through e-mail that the AC was not working properly and prior to e-mail the Complainant informed several times to the OP-2, but no one contacted with him. So he had to lodge a complaint to the OP-2 through e-mail on 08.04.2016. Upon receipt the said e-mail the OP-2 intimated the Complainant that the OP-2 has already lodged a complaint with the Company on behalf of the Complainant and the Company will communicate with him in the registered mobile number. As no one contacted till 09.04.2016 the Complainant being compelled send further e-mail to the OP-2 to solve the problem as early as possible. Thereafter several dates were given by the OP-1 to the Complainant for sending the technician at the house of the Complainant to check the problem of the installed AC, but nobody came to do the same. On 15.04.2016 another e-mail was send by the OP-1 stating that an authorized person will come at the house of the Complainant to return the questioned AC and also asked him for keeping convenient time in between 8a.m. to 9a.m. for doing the same. But all were in vain as till date nobody has come to check the problem or replace the disputed AC. The Complainant sent an e-mail to the OP-2 on 27.04.2016 requesting to solve the problem within two days; otherwise he will take legal action through Consumer Forum. On 27.04.2016 by sending e-mail the OP-2 had stated that the size of the room of the Complainant where the AC has been installed, is not suitable for 1.5 ton AC specially Inverter model, inspite of this the OP-2 had lodged a request on his behalf for arranging a technical visit. But the concerned engineer who came for installation of the AC did not raise any question about the size of the concerned room. The Complainant intimated the OP-2 that there was no cooling effect from the said AC and it is situated in his house as a box only. The OPs did not provide any service or took step so that the Complainant can enjoy the AC machine smoothly. Thereafter one Jakir Hossain being the technician of Hitachi came to see the machine once again and after checking the machine it was mentioned by him in the service book that ‘Gas nil due to leakage’. Upon hearing the same then and there the Complainant contacted the OPs for his redressal but at this juncture the OP-2 behaved him very rudely and simply refused to extend any service. Having no other alternative the Complainant has approached before this ld. Forum by filing this complaint praying for direction upon the OPs to deliver him a new AC machine by replacing the existing defective machine, to pay compensation to the tune of Rs.40,000/- due to unnecessary harassment, mental agony and pain and litigation cost of Rs.6000/- to him.
The petition of complaint has been contested by the OP-2 by filing written version contending that being the dealer of electronics goods it used to sell its goods from both retail outlet as well as online through the OP-1. The OP-2 is neither the manufacturer of the electronics goods nor a service provider, the manufacturers of the electronic goods provide warranty card, which is valid for the time limit. In the event of any complaint is lodged with this OP within the warranty period regarding to any product which is delivered to any purchaser, the OP-2 only forwards the complaint to the manufacturer and/or the service provider for the sake of its goodwill, since the OP-2 does not have any expertise to deal with any problem. In the present case the Complainant purchased an AC machine manufacturer by Hitachi. Obviously the Complainant was provided a warranty card regarding to the service of the AC. It appears from the complaint that on 31.03.2016 the concerned AC machine was purchased by the Complainant and the machine was installed on 06.04.2016. On 08.04.2016 one complaint was lodged regarding to certain defects of the machine, but the nature of defect was not disclosed. The OP-2 immediately forwarded the complaint to the Company as and when the OP-2 received the same as a gesture of goodwill and informed the Complainant accordingly. The OP-2 rendered all possible help to the Complainant, but the Complainant did not take up the issue with the manufacturer. Since it is evident from the petition of complaint the real issue was gas leakage, therefore there is no deficiency in service of this OP, but the Complainant has made this OP as a party to this proceeding with ill motive. According to the OP-2 this complaint should be dismissed against it with cost.
The Complainant and the OP-2 have adduced evidence on affidavit along with documents in support of their respective contentions. The OP-2 has filed BNA.
After admission of this complaint notices were issued upon the OPs, but only the OP-2 appeared and contested the complaint by filing written version. Other OPs did not turn up to contest the complaint either orally or by filing written version. On the date of final hearing the Ld. Counsel for the OP-2 was only present. We have perused the record; documents filed by the contesting parties and heard argument advanced by the Ld. Counsel for the Complainant and the OP-2.
It is seen by us that admittedly the Complainant purchased one Hitachi 1.5 tons Inverter Split AC White through the OP-1 and the same was installed in the room of the Complainant on 08.04.2016. The machine was delivered to him to 05.04.2016. As the Complainant purchased a new machine certainly it contained a warranty card, but the Complainant did not annex the said warranty card along with this complaint. However, it is implied that generally minimum one year warranty was given. Since its installation according to the Complainant defects cropped up and he started to intimate the same to the OP-1 and 2 continuously through e-mail. But for a prolonged period no step was taken by the OP-1 for removal of the defects by sending expert technicians from the Company. Admittedly the Complainant did not bother to make any contact with the Hitachi Company. The OP-2 being the dealer of the electronic goods of different Companies, it has no liability to take any step for removal of the defects from the said AC machine. Inspite of the as and when the OP-2 received the e-mail from the Complainant regarding defects in the AC machine, then and there the OP-2 intimated the same to the OP-4 and lodged a complaint on behalf of the Complainant. Not only that, the OP-2 intimated the same to the Complainant through e-mail. But the Complainant did not lodge any complaint with the OP-2 on his behalf. Subsequently one Technician namely Mr. Jakir Hossain visited the house of the Complainant and after inspection and examination it was noted by him in the service call book dated 05.05.2016 that there is ‘ISAC Gas-Nill due to Leakage’. It is alleged by the Complainant in the petition of complaint that there is no cooling effect from the said AC machine. In our view after knowing that there was ISAC Gas in the AC Machine due to leakage, the Complainant did not bother to intimate the same to the Hitachi Company. Therefore it is clear that due to want of the said Gas problem cropped up since the date of its installation. In this respect we are to say that admittedly the Complainant purchased a new AC machine, then why the Company delivered the same to the Complainant having such defects. As since inception of its installation the defect cropped up and it was detected within a very short span that there was no gas due to leakage, hence it is obviously a manufacturing defect. For proving such manufacturing defect no expert opinion is necessary as within one month from its installation the technician of the Hitachi Company has opined in the service call book that there is no ISAC Gas due to leakage, hence it is the liability of the Company to remove such defect from the questioned AC machine. As the Complainant did not intimate the alleged defect to the Company, hence in our view he is not entitled to get any amount towards compensation as sought for. Without giving information to the Company, the Complainant filed this complaint praying for certain reliefs along with litigation cost, but in our view that the Complainant without giving any scope to the Company about the defect has filed this complaint and as there is contributory negligence on the part of the Complainant, he is not entitled to get any amount as litigation cost.
Going by the foregoing discussion hence it is ordered that the complaint is allowed against the OP-4 exparte without any cost and dismissed on contest without any cost against the OP-2. The complaint is also dismissed against the OP-1 and 3 exparte against the OP-3 without any cost. The OP-4 is hereby directed either to remove the defect/s from the questioned AC machine within 60 days from the date of passing of this judgment, in default the OP-4 shall replace the same with a new AC machine of similar description which shall be free from any defect within a period of 90 days from the date of passing of this judgment. In case of non-compliance of the abovementioned order by the OP-4 within the specified period the OP-4 shall pay punitive damage to the tune of Rs.20,000/-, out of which 50% shall be paid to the Complainant and the balance amount to the SCWF.
Let plain copy of this order be given to the parties free of cost as per the provision of the CPR, 2005.
Member Member President
Dictated & Corrected by me
