FINAL ORDER/JUDGEMENT
SMT. SAHANA AHMED BASU, MEMBER.
This is an application u/s.12 of the C.P. Act, 1986.
The brief facts of the instant consumer complaint are that on 26/06/2017 the complainant purchased one Hitachi AC Machine being Model No.5181VD/1.5 ton Split AC Indoor along with Hitachi 5181VD/1.5 ton Split AC Outdoor machine and other miscellaneous goods from the O.P.-2 on payment of Rs.45,800/-, which was delivered on 09/07/2018 and installed on 13/07/2018 by the men of the O.P.-2. That immediately after installation of the subject AC machine could not be started and in spite of several attempts by the technical personnel the AC could not started to function. Finally, the technician of O.P.-1 opined that the sensor of the machine got damaged and he advised to contact Hitachi Service Centre at Salt Lake for removal of such defect as the machine was within the warranty period. Complainant informed the matter to O.P.-3 and they had sent one technician but despite rigorous effort the defect could not be removed. Thereafter, complainant lodged repeated complain and so many technicians attended the AC machine but problem remain persists. Complainant contacted the O.Ps. numerous occasions and legal notice has also been served upon the O.Ps. seeking replacement of the defective AC but to no effect. Finding no other alternative, the complainant has approached this Forum for getting redressal.
O.Ps.-1 and 2 have contested the case by filing joint W.V. contending inter alia that the instant consumer complaint is not maintainable being entirely civil in nature and the transaction is commercial and that too the complainant did not submit any expert opinion. The case of the answering O.Ps. is that the complainant purchased one AC machine at a price of Rs.45,800/- on 26/06/2017 by cash and complainant was fully satisfied with the demonstration and agreed to purchase the same. The complainant has come to this Forum for non-functioning of the AC machine since its installation and the answering O.Ps. informed the matter to the manufacturer. Accordingly, mechanic had been sent by the manufacturer and/or service centre for repair and O.P.-3 being the service centre repaired the AC up to the satisfaction of the complainant. Further case of the answering ops is that they are only dealer and not the manufacturer and manufacturer is liable for any defect within warranty period. Answering ops have role in regard to provide repair. By informing the manufacturer about the defect of the AC machine in question, they have performed their part of duty. As such there is no deficiency in service on their part. They have prayed for dismissal of the case against them.
In spite of service of notice, the O.P.-3 neither appeared nor did they file any W.V. to contradict the allegation made out in the petition of complaint against them. Hence, the case has proceeded ex-parte against the O.P.-3.
In the light of the pleadings of the parties the following points have been raised for the sake of proper and effective adjudication of the case.
- Whether there was any manufacturing defect in the A.C. Machine sold to the complainant?
- Whether there was any unfair trade practice on the part of the O.Ps.
- Whether the complainant is entitled to get relief or reliefs as prayed for.
Decision with Reasons
Points Nos.-1 to 3.
All the points are taken up together for the sake of convenience and brevity in discussion.
The complainant has furnished evidence through affidavit in support of their respective case. O.Ps.-1 and 2 prayed for treating their W.V. as evidence through affidavit. We have heard the Ld. Advocate for the parties and have gone through the evidence as well as documents on record.
There is no dispute with regard to the factum of purchase of Hitachi 5181VD/1.5 ton split AC Indoor, Hitachi 5181VD/1.5 ton split AC Outdoor machines from O.P.-2 on payment of Rs.45,800/- on 26/06/2017 vide tax invoice, those goods were delivered to the complainant on 09/07/2017 and was installed at the residence of the complainant on 13/07/2017 by the technician of O.P.-2. Immediately after installation and completion of all necessary formalities it was found that the AC machine could not be started and was unable to work properly. In spite of several attempts the technicians who installed the AC machine could not be able to remove the defects of the subject AC machine. Finally, the technician of the O.P.-1 told that the sensor of the AC machine was not working properly because it got damaged. Thereafter, the said technicians advised to contact the O.P.-3 for removal of the defects as the AC machine have warranty for manufacturing defects.
Fact also remains that on 13/07/2017 the complainant informed the O.P.-3 about the defect and registered a complaint vide docket No.17071304135 on the same date. After receiving the complaint a technician of O.P.-3 namely Surojit Nandi who attended the defective AC machine and despite rigorous effort he could not start the AC machine and the defect of the subject AC machine is still persists. Complainant made several complaints to the O.Ps. on different dates i.e. on 15/07/2017 vide docket No.17071504669, on 18/07/2017 vide docket No.17071800942, on 22/07/2017 vide docket No.17071224136, on 04/08/2017 vide docket No.17080402767 and lastly on 10/08/2017 vide docket No.17081001348. On all occasions O.Ps. sent their technicians and several parts of the defective AC machine were replaced but all such efforts of the technicians of the O.Ps. were in vain and the AC machine in question could not be repaired and/or started functioning. Thereafter, complainant had requested to the Customer Care of Hitachi vide e-mail dated 03/08/2017, (Annexure-B) and also sent a demand notice on 04/09/20107 through his Advocate to the O.Ps.-2 and 3 demanding replacement of the defective AC machine, (Annexure-C).
Ld. Advocate appearing for the contesting O.Ps. has contended that the grievance of the complainant was redressed and O.ps.-1 and 2 tried their best to remove the defect and on failure of that intimated the O.P.-3. On perusal of the documents on record, we found that it is true that despite of making several efforts O.Ps. failed to remove the defect of the subject AC machine.
On the failure of several efforts in the matter of removal of the defects to the subject AC machine and that too after receiving the e-mail and Advocate’s letter from the complainant, it was the duty of the O.P.-3/Manufacturer to replace the defective AC machine by a new and good one as, being the manufacturer, it was the liability of the O.P.-3 to replace the AC machine for its manufacturing defect because the AC machine could not be started from the date of its installation despite repeated attempts and replacement of spares by the official technicians on several occasions but O.P.-3 turned a deaf ear to the matter. The Op-3 was duly served of the complainant. However, despite of service of notice upon them, no written statement is filed. The complainant led evidence by filing affidavit evidence. The complainant by way of an uncontradicted testimony has proved that the Op-3 supplied defective A.C. Machine to the op Great Eastern Appliances Pvt. Ltd which was sold to him. Complaint was docket on several dates within the warranty period but defective A.C. Machine was not replaced. Thus, the Op-3 has committed unfair trade practice.
After giving a thoughtful consideration, to the submission of the O.Ps.-1 and 2 as well as on careful perusal of the documents on record, we think it just and proper to hold that there is no unfair trade practice on the part of the O.Ps.-1 and 2.
Therefore, it is our considered view that the complainant is entitled to get relief / reliefs as prayed for. Thus, all the points under determination answered in the affirmative.
In result, the case succeeds in part.
Hence,
Ordered
The consumer complaint be and the same is dismissed on contest against the O.Ps.-1 & 2 and allowed ex-parte against the O.P.-3 with litigation cost of Rs.20,000/-.
The O.P.-3 is directed to replace the defective AC Machine (both the units) by a new and good one of same model within a period of 30 days from the date of this order along with litigation cost..
The O.P.-3 also directed to pay Rs.50,000/- to the complainant as compensation for causing harassment, mental pain and agony within the stipulated period.
The O.P.-3 is further directed to deposit a sum of Rs.10,000/- to this Forum towards penal damage for practicing unfair trade within the stipulated period.
Liberty be given to the complainant to put the order in execution, if the OP transgresses to comply the order.
