DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

                                      Consumer Complaint No. 149 of 28.4.2017

                                      Decided on:   6.9.2019

Naresh Kumar Singla aged about 47 years, son of Sh.Babu Ram Singla, resident of House No.1, Ward No.7, Ghanaur, Tehsil Rajpura, District Patiala.

                                                                   …………...Complainant

                                      Versus

1. Garg Electronics, SCO No.231, Ravi Hospital Road, Phase-1, Urban Estate, Patiala through its Proprietor/Parter/authorized person.
2. ETA General Private Ltd. ( O General),SCO No.2475-76, IInd Floor, Sector 22-C, Chandigarh through its Incharge/authorized person.

                                                                   …………Opposite Parties

                                      Complaint under Section 12 of the

                                      Consumer Protection Act, 1986.

QUORUM

                                      Sh. M.P.Singh Pahwa, President

                                      Smt. Inderjeet Kaur,    Member

                                      Sh.B.S.Dhaliwal,        Member        

ARGUED BY

                                      Sh.Hemant Singla, Advocate, counsel for complainant.

                                      OP No.1 ex-parte.

                                      Sh.Mayank Malhotra, Advocate, counsel for OP No.2.

 ORDER

                                      M.P.SINGH PAHWA,PRESIDENT

1. This complaint is filed by   Naresh Kumar Singla (hereinafter referred to as the complainant) against Garg Electronics and anr. (hereinafter referred to as the OPs).
2. Briefly the case of the complainant is that OP No.2 is the manufacturer/used to market the air conditioners under the name and style of “O General”. OP No.1 is its franchisee /agent/dealer and sells the products.
3. Complainant purchased one “O General” 1½ ton split inverter AC bearing Sr.No.E034800 and Sr. No.(O)E036245 from OP No.1 through installments,  for Rs.64000/- vide invoice/challan No.3046 dated 2.5.2016 .The OP provided  guarantee for the period of one year against any problem.
4. Complainant used the AC with all due care and in proper manner but it started giving problem in its functioning in the month of purchase i.e. May,2016. Complainant approached OPs at Patiala with his complaint and registered  complaint No.CHA11605310167 dated 31.5.2016. The employees of OP No.1 visited his house and repaired the AC by changing its part i.e. PCB in outer chamber. It was assured that the AC will not cause any further problems in its functioning in future. Thereafter 2-3 months of its use, in the month of September, complainant stopped using the AC due to winter season and started the same in the month of March, 2017 but it had not started. The complainant again approached OP No.1. Employees of OP No.1 visited his use and checked the AC and found it not working due to gas problem. They orally told that they will again visit in next few days and repair the same by refilling the gas in A.C.
5. After waiting for few days when the employees of OP No.1 did not visit the house of the complainant, he again approached OP No.1 with his complaint but they failed to remove the defect for a period of one week. After waiting few days the complainant again visited OP No.1 and told them orally that if they will not repair the AC he will take legal action against them. Thereafter the employees of OP No.1 visited his house and refilled the gas. He was assured that the AC will work properly in future without giving any further problem.
6. It is further alleged that after 2-3 days, the AC stopped working .On this complainant again approached OP No.1.Employees of OP No.1 again visited his house to remove the defect/fault but failed to do so and orally told that there is some hidden manufacturing problem due to which it is giving  problems regarding its functioning. They left the house of the complainant without doing anything for proper functioning of the AC. The complainant again visited OP No.1 and asked them for replacement of the AC with new one or to refund its price. The employees of OP No.1 visited the house of the complainant on 25.4.2017 and took the AC for replacement/repair. Again the complainant visited OP No.1 to take back replaced or repaired one AC but the OP started giving an excuse on one pretext or the other and have done nothing towards issuing a new air conditioner in its replacement or repairing the defective one sold to the complainant. The OPs have not refunded the amount. The defective AC sold to the complainant is still lying deposited with OP No.1.The complainant also registered a complaint with OP No.2 on its customer care number vide complaint dated 27.4.2017.
7. It is also alleged that every time when the AC got issues in its functioning, no standby AC was provided/supplied to the complainant.
8. On this background of the facts, the complainant has alleged deficiency in service and unfair trade practice on the part of the OPs. The complainant has claimed Rs.26000/-as compensation for harassment, mental torture etc., Rs.10,000/-litigation expenses, Rs.64000/-refund of the price, totaling Rs.1,00,000/-.Hence this complaint.
9. Upon notice, none appeared on behalf of OP No.1.As such OP No.1 was proceeded against ex-parte. OP No.2 appeared through counsel and contested the complaint by filing written reply. In reply OP No.2 raised preliminary objections that the complaint is not maintainable in its present form; that the complainant has no cause of action, he has concealed the true and material facts from this Forum.
10. On merits, it is admitted that the complainant had purchased the AC but it is denied that the guarantee of one year was for every problem. It is admitted that AC was giving problem but it is due to voltage fluctuation. The complainant registered complaint in the month of May,2016 which was duly rectified to the satisfaction of the complainant. All the other averments of the complainant are denied. It is also admitted that the employees of OPs visited house of the complainant and took the AC for its repair but it is denied that the complainant was promised with replacement as alleged. It is denied that if there is any manufacturing defect in the AC. In the end, the OP prayed for the dismissal of the complaint.
11. The parties were afforded opportunity to produce their evidence.
12. In support of his case, the complainant tendered into evidence his affidavit, Ex.CA, copy of invoice, Ex.C1, copy of warranty terms, Ex.C2 and closed the evidence.
13. OP No.2 tendered into evidence affidavit of Ashwani Kumar, Ex.OPA.
14. The complainant has also submitted written arguments. We have heard the ld. counsel for the parties and have also gone through the record of the case, carefully.
15. The complainant has reiterated his stand as taken in the complaint. It is submitted by the ld. counsel for the complainant that as per the complainant he repeatedly lodged complaints with OP No.1 and OP No.1 failed to redress the complaints. It is also pleaded that OP No.1 took the AC with the promise to replace the same but he has not replaced the AC or repaired the same. OP No.1 has not come forward to rebut the averments of the complainant. Therefore, adverse inference is to be drawn against OP No.1. OP No.2 being manufacturer is also liable for the deficiency in service on the part of OP No.1.In support of these submissions, the ld. counsel for the complainant has relied upon 2010(2)C.P.J. 26 Voltas Limited Versus Amritpal Kaur,  1998 (1) C.P.C. 670,  M/s Voltas Limited and Others Vs. Mr.P.K.Kukreja,  2009 (1) C.P.C. 389 Carrier Air Conditioning and Refrigeration Ltd. Vs. Mukesh Chandi and another, 1996(2) C.P.J.194, R.K.Kapur Vs. R.N.Mittal.
16. On the other hand, the ld. counsel for OP No.2 has submitted that the complainant has not approached the Forum with clean hands. The present complaint is result of connivance between the complainant and OP No.1. As per complainant himself he has purchased the AC on 2.5.2016.The only complaint made was on 31.5.2016 and admittedly the problem was only regarding refilling of the gas. The complaint was duly attended. Of course the complainant has alleged various complaints but there is no documentary evidence to prove any other complaint. The oral averments are not to be accepted as evidence when the complainant has failed to produce any documentary evidence to support his averments. OP was not required to produce any evidence. The complainant has filed the complaint at the fag end of the expiry of warranty period. The warranty is also with certain terms and conditions which are relied upon by the complainant himself. Only such parts are to be repaired/replaced which have been defective due to faulty material or workmanship .Complainant has not produced any evidence to prove any defect due to faulty manufacturing or workmanship. Therefore, the complainant is not entitled to any relief.
17. We have given careful consideration to their submissions.
18. The complainant has admittedly purchased the AC in question from OP No.1. OP No.2 has been impleaded being manufacturer of product. Therefore, the liability of OP No.2 is only in case there is any manufacturing defect as alleged by the complainant. The complainant has produced on record only copy of invoice, Ex.C1 and warranty terms and conditions, Ex.C2. No other documentary evidence is produced on record to prove any complaint made to OP No.2 and any lapse on the part of OP No.2 in attending the complaint. In these circumstances, no deficiency in service on the part of OP No.2 is held proved.
19. Complainant has also pleaded that the employees of OP No.1 took the AC. Of course the OP No.2 in written version has admitted this fact but in affidavit, Ex.OPA, it is also mentioned that the AC was repaired by employees of OP No.1. In written arguments submitted by complainant, it is admitted that after filing of complaint, the OPs have returned defective AC without any repair/replacement. In this way, the complainant has also admitted that OP No.1 has returned the AC to him, of course after filing of the complaint.
20. It is well stated that the complainant has to prove his complaint by affirmative evidence. The only evidence of the complainant is invoice, Ex.C1 and terms and conditions, Ex.C2. These documents do not prove any deficiency in service on the part of OPs. The complainant has admitted that the first complaint was lodged by him in May, 2016 and OPs filled the gas to make it in working condition. As shortage of gas cannot be equated with any manufacturing defect because it can be due to other factors also. The net conclusion is that the complainant has failed to prove any deficiency in service on the part of OP No.1 also. As such the complaint stands dismissed.
21. Certified copies of this order be sent to the parties free of cost under the Rules. Thereafter, file be indexed and consigned to the Record Room.

ANNOUNCED

DATED:6.9.2019         

 B.S.Dhaliwal                         Inderjeet Kaur              M. P. Singh Pahwa

       Member                                 Member                                      President