Delhi

North East

CC/64/2019

Sh. Devender Singh Chauhan - Complainant(s)

Versus

Gupta Electronics and Ors. - Opp.Party(s)

28 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No.64/19

In the matter of:

 

	Shri Devender Singh Chauhan S/o Sh. Ram Bahadur Chauhan, R/o B-1/414, 23 Ft Road, Harsh Vihar Delhi-110093	Complainant
	Versus
1.       2.	Gupta Electronics 1157/1, East Rohtas Nagar, Shahdara, Delhi-110032   Carrier Midea India Private Limited 1st Floor, Pearl Tower, Plot No. 51, Sector-32, Gurgaon, Haryana-122001	Opposite Parties

 

DATE OF INSTITUTION:        JUDGMENT RESERVED ON:                        DATE OF ORDER  :

28.05.2019 07.02.2023 28.03.2023

 

CORAM:

Surinder Kumar Sharma, President

Anil Kumar Bamba, Member

Adarsh Nain, Member

 

ORDER

Anil Kumar Bamba, Member

The Complainant has filed the present complaint under Section 12 of the Consumer protection Act, 1986.

Case of the Complainant

1. The case of the Complainant as revealed from the record is that the Complainant had purchased a Carrier 18 K Durafresh Split 3 AC from Opposite Party No. 1 on 03.05.2018 of Rs. 32,000/- on 0 % down payment of which EMI of Rs. 4,000/- for 8 months was paid and was still under the warranty period. On 04.05.2018, Opposite Party No. 1 sent the engineer of Carrier Company to the residence of the complainant for installation of AC but after installing, from the beginning i.e. after 15 days, complainant was facing the cooling problem in the AC and AC was not working properly and not giving cool air. Thereafter, the Complainant contacted to Opposite Party no. 1 and told the problem of the AC and Opposite Party No. 1 said to the Complainant to contact on customer care of Opposite Party No. 2. Then the Complainant had registered the complaint with Opposite Party No. 2 and they said to Complainant that they would send the technician to resolve the problem. On 30.06.2018, one technician from the Opposite Party No. 2 visit the Complainant’s residence and done the service and filled the gas in the AC and assured the Complainant that henceforth AC would give perfect cooling but still the problem remained same. The Complainant again made a complaint to Opposite Party No. 1 and customer care of Opposite Party No. 2 and again on 21.07.2018, technician of Opposite Party No. 2 came and again filled the gas in the AC and again assured the Complainant that AC would work properly but the problem remains the same. Thereafter, Complainant again contact to Opposite Parties in this regard and they started making pretext by one and another and did not take any action. On 15.10.2018, Complainant sent an email to Opposite Parties and told all the facts of the problems of the said AC and requested them to replace the AC because the said AC was already repaired many times and still not working properly . On same day Opposite Party No. 2 replied by email that gas leak due to using outdoor unit without any fixing stand which is false and fabricated reason and also gave details of repair calls which shows that AC has manufacturing defect which cannot be repaired by technician of Opposite Parties and again asked to repair the unit and refused to replace the AC.  On 15.10.2018 again Complainant sent a mail to Opposite Parties and requested them to resolve the matter. On 18.10.2018, Opposite Party No. 2 replied by email that kindly give appointment and allow technician to repair the unit to solve the issue. On 21.10.2018, Complainant again sent an mail and asked whether they would replace the AC or not and requested them to solve the problem but Opposite Party No. 2 adamantly replied that there is a problem in unit installation and they want to repair the AC and refused to replace the AC which is still under in warranty. On 22.04.2019, Complainant sent a legal notice to the Opposite Parties but Opposite Parties did not reply the said notice. Complainant has prayed to direct the Opposite Parties to replace the AC or to refund the amount of AC and also compensate the Complainant for a sum of Rs. 30,000/- for his mental agony and harassment. Complainant also prayed for Rs. 15,000/- on account of litigation expenses.
2. None has appeared on behalf of the Opposite Party No. 1 to contest the case. Therefore, Opposite Party No. 1 proceeded against ex-parte vide order dated 02.12.2019.

Case of the Opposite Party No. 2

3. The Opposite Party No. 2 contested the case and filed its written statement. It is submitted by the Opposite Party No. 2 that there is no inherent defect in the AC since the Complainant had lodged the first complaint after two months from the purchase of the said AC. It is submitted that the Complainant had purchased the said AC on 03.05.2018 and the first complaint was received by the Opposite Party on its service helpline number on 30.06.2018 i.e. after two months from the purchase of the said AC. It is further submitted that the said AC was sold and installed in perfect working condition. It is submitted that the AC was purchased on 03.05.2018 and on 04.05.2018 when the technician reached the Complainant’s house to install the AC then the Complainant instructed the technicians to install the AC on the clay wall to which the technician informed the Complainant that the clay wall was neither strong nor stable and advice the Complainant to install the AC on a proper cemented wall. However, the Complainant insisted that the AC should be installed on the clay wall itself, therefore, the technicians had no option but to follow the instructions of the Complainant and installed the AC on the clay wall. After installation of the said AC, the AC functioned properly for around two months. On 30.06.2018, the Complainant called the customer helpline number of the Opposite party and registered a complaint of less cooling from the said AC. It is submitted that on receipt of the said complaint, technicians of the Opposite party visited the Complainant on 30.06.2018 itself and on examination it was found that due to installation of the said Ac on the clay wall, there was excessive vibration, due to which there was gas leakage from the said AC. Accordingly, the technician again advised the Complainant to get the said AC reinstalled on a cemented wall. However, the Complainant refused to do so on the ground that his brother is unwell and further informed the technician once his brother recovers, the complainant would get the said AC reinstalled as per the instructions of the technicians and further requested that the said AC should be made workable to avoid causing discomfort to this brother. It is submitted that since the AC was under warranty, the technician refilled gas in the AC free of cost and thereafter the AC was again functioning properly.
4. It is further submitted that in the mid of July 2018 the Complainant contacted the service centre and requested for the reinstallation of the AC and Opposite party informed the Complainant that he would have to pay the reinstallation charges. Then the Complainant started quarrelling with them and thereafter the service centre agreed to reinstall the AC free of cost. It is submitted that when the technician reached the Complainant’s house, the Complainant instructed the technicians to install the outdoor unit on the roof to which the technician informed the Complainant that in order to prevent vibration and to fix the outdoor unit properly on the roof, the Complainant would have to pay Rs. 750/- for a mounting bracket/stand, so that the outdoor unit can be affixed with nut and bolts to the said mounting bracket. However, the Complainant flatly refused to purchase the mounting bracket and instructed to keep the outdoor unit on the floor of the roof. Therefore, the technician reinstalled the outdoor unit as per the instructions of the Complainant. It is submitted that on 21.07.2018, the Complainant called the customer helpline number of the Opposite Party No. 2 and started demanding replacement of the said AC on the ground that there is manufacturing defect in the said AC. On receipt of the said call, a technician visited the Complainant’s house to check the said AC. On examination, it was found that since the outdoor unit was not fixed to any mounting bracket, there is excessive vibration due to which there is gas leakage from the said AC. Therefore, the technician once again requested the Complainant to fit the mounting bracket so that there is no repeat gas leakage from the said AC but Complainant flatly refused. When the Opposite Party refused to accept the unjustified demand for replacement of the said AC, the Complainant started sending emails and made repeated calls on the service helpline number in order to establish deficiency of service on the part of Opposite Party. On 27.09.2018, the Complainant called the service helpline number and started demanding replacement of the said AC on the ground that there is manufacturing defect in the said AC. On receipt of the said call a technician visited the Complainant’s house to check the said AC. On examination the said AC was found functioning perfectly fine. On receipt of the email dated 15.10.2018, a technician was deputed to go and check the said AC. However, when the technician visited then the Complainant did not allow the technician to check the AC and stated he wants only replacement of the unit. Therefore, the technician had no option but to return without checking the said AC. On 17.10.2018, the Opposite Party No. 2 sent a detailed email to the Complainant enumerating the details of each complaint made by the Complainant. In the said email, the Opposite Party requested the Complainant to allow the technicians to check and repair the AC. It is submitted that since the very beginning there was only gas leakage from the said AC solely due to the adamancy of the Complainant to get the AC installed on the clay wall and even when the AC was reinstalled the Complainant refused to fix the mounting bracket. Therefore, it is evident that there is no technical defect in the said AC and due to this the Opposite Party did not accept demand of the Complainant for replacement of the said AC.
5. In view of the above, it is crystal clear that the Complainant in order to force the Opposite Party to kneel before his demand to replace the said AC unit without charging their legitimate dues had filed the present complaint before this Forum. Hence, the captioned complaint is liable to be dismissed on this ground and further an exorbitant cost be imposed upon the Complainant for washing the prestigious time of this Hon'ble Forum. It is submitted that from the above narration of facts, it is evident that the Complainant refused to accept the instructions of the Opposite Party No. 2 with respect to the installation of the outdoor unit and thereafter, to hide his own mistake, the Complainant started threatening and arm twisting the Opposite Party in giving in to his unjustified demand of replacement of the said Ac. In this context, reference may kindly be made to the decision of the Hon'ble National Commission in Maruti Udyog Ltd. vs. Casino Dias & Anr., IV (2009) CPJ of 144 (NC). In this case the Hon'ble National Commission held that where the vehicle was properly attended during warranty and the defective components replaced free of charge by the appellant, but the Complainant is adamant throughout with predetermined mind to get replacement of the vehicle, the order directing replacement of vehicle was set aside. It was also held therein that the consumer cannot throw their weight around and be adamant to decide on their own that there is manufacturing defect. It is submitted that under the terms of warranty which are binding on the Complainant, the Opposite Party is liable only to repair or replace the defective parts, if any. Hence, the demand of the Complainant for replacement of the said AC or refund of the price of the said AC is liable to be rejected. Relevant portion of the warranty terms and conditions are reproduced below:

              “…. During a period of 12 months commencing from the date of invoice, as provided in the Warranty Registration Card, the Company undertakes to repair or replace as it deems fit in sole discretion, free of charge, any part or parts of the said unit (including the compressor, condenser and evaporator) which proved to be defective in materials and workmanship.”

 

6. It is submitted that the Hon'ble Supreme Court of India in Maruti Udyog Ltd. Vs. Sushil Kumar Gabgotra & Anr. II (2006) CPJ 3 (SC) held that any relief outside the terms and conditions of the manufacturer warranty could not be sustained. In this case, the terms and conditions of the warranty did not provide for replacement and or refund. Therefore, the Hon'ble Supreme Court considered it illegal on part of the fora below to have travelled beyond the conditions of warranty and award replacement/refund. The company was willing to repair/replace free of cost any part during the period of warranty. Towards the fulfilment of this commitment, it replaced the engine. There has been absolutely no deficiency in service on part of the Opposite Parties and both the fora below wrongly held them liable. It is submitted that in a number of Judgments the Hon'ble Supreme Court and Hon'ble National Commission had repeatedly held that if any machinery can be repaired by replacement of parts, then the manufacturer cannot be directed to replace the entire machine. It is submitted that the onus of proving manufacturing defect lies on the Complainant. Unless the onus is discharged by way of cogent, credible and adequate evidence supported by the opinion of an expert the demand of the Complainant for replacement or refund of the price of the said AC is liable to be rejected. In this regard reference may kindly be made to the following judgments of the Hon'ble National Commission:
   1. In M/s Hero Honda Motors Limited Vs. Shri Katakam Mallikarjuna Rao II (2013) CPJ 688 (NC), the Hon'ble National Commission, in the absence of any independent expert report refused to accept rust on the petrol tank, defect in the clutch cover and magnet cover as manufacturing defect.
   2. In Sukhvinder Singh Vs. Classic Automobile & Anr. I(2013) CPJ 47 (NC), the Hon'ble National Commission has held that the report of expert was essential or some other evidence showing manufacturing defect should have adduced. Mere fact tht vehicle was taken to service station for one or two times does not ipso facto prove manufacturing defect. And onus was on the Complainant to prove his case by an expert opinion or reliable evidence, mere allegation is not enough.
7. It is submitted that gas leakage (that too due to Complainant’s own mistake) is a minor problem and the same can be rectified easily by fixing the mounting bracket. Therefore, the demand of the Complainant for replacement of the said AC merely because there was some minor problem is liable to be rejected.

Rejoinder to the written statement of Opposite Party No. 2

8. The Complainant filed rejoinder to the written statements of Opposite Party No. 2 wherein the Complainant has denied the pleas raised by the Opposite Party No. 2 and has reiterated the assertion made in the complaint.

Evidence of the Complainant

9. The Complainant in support of his case filed his affidavit wherein he has supported the assertions made in the complaint.

Evidence of the Opposite Party No. 2

10. To support its case Opposite Party No. 2 has filed affidavit of Sh. Sumit Prashant, working as Manager-Legal with Opposite Party No. 2 at 1^st Floor, Pearl Tower, Plot No. 51, Sector 32, Gurgaon, Haryana-122001. In his affidavit, he has supported the case of the Opposite Party No. 2 as mentioned in their written statements.

Arguments & Conclusion

11. We have heard the Counsel for the Complainant and Opposite Party No. 2. We have also perused the file and written arguments filed by the Complainant and Opposite Party No. 2. The case of the Complainant is that he purchased AC from Opposite Party No. 1 on 03.05.2018 of Rs. 32,000/- on 0 % down payment of which EMI of Rs. 4,000/- for 8 months. On 04.05.2018, Opposite Party No. 1 sent the engineer of Carrier Company to the residence of the complainant for installation of AC but after installing, from the beginning i.e. after 15 days, complainant was facing the cooling problem in the AC and AC was not working properly and not giving cool air. Thereafter, the Complainant contacted to Opposite Party no. 1 and told the problem of the AC and Opposite Party No. 1 said to the Complainant to contact on customer care of Opposite Party No. 2. On complaint of the Complainant Opposite Party No. 2 sent their technician to Complainant’ residence on 30.06.2018 and done the service and filled the gas in the AC and assured the Complainant that henceforth AC would give perfect cooling but still the problem remained same. The Complainant made the various complaint to the Opposite Party No. 2 regarding non-functioning of the AC and Opposite Party No. 2 again sent their technician and filled the again in the AC and assured the Complainant that AC would work properly but the problem remained same. On 15.10.2018, Complainant sent an email to the Opposite Party and told the problem faced by him about not working of the AC and requested them to replace the AC or refund the amount paid for the AC. On 18.10.2018, Opposite Party No. 2 requested the Complainant to give the appointment and allow the technician to repair the unit to solve the issue. So, there is deficiency of service on the part of the Opposite Party.
12. The case of the Opposite Party No. 2 is that there is no inherent defect in the AC since the Complainant had lodged the first complaint after two months from the purchase of the said AC. It is submitted that the said AC was sold and installed in perfect working condition. It is further submitted that AC was purchased on 03.05.2018 and on 04.05.2018 when the technician reached the Complainant’s house to install the AC then the Complainant instructed the technicians to install the AC on the clay wall to which the technician informed the Complainant that the clay wall was neither strong nor stable and advice the Complainant to install the AC on a proper cemented wall. However, the Complainant insisted that the AC should be installed on the clay wall itself, therefore, the technicians had no option but to follow the instructions of the Complainant and installed the AC on the clay wall. On 30.06.2018, the Complainant called the customer helpline number of the Opposite party and registered a complaint of less cooling from the said AC. It is submitted that on receipt of the said complaint, technicians of the Opposite party visited the Complainant on 30.06.2018 itself and on examination it was found that due to installation of the said AC on the clay wall, there was excessive vibration, due to which there was gas leakage from the said AC. Accordingly, the technician again advised the Complainant to get the said AC reinstalled on a cemented wall. However, the Complainant refused to do so on the ground that his brother is unwell and further informed the technician once his brother recovers, the complainant would get the said AC reinstalled as per the instructions of the technicians and further requested that the said AC should be made workable to avoid causing discomfort to this brother. It is submitted that since the AC was under warranty, the technician refilled gas in the AC free of cost and thereafter the AC was again functioning properly.
13. In the mid of July 2018, the Complainant contacted the service centre and requested for the reinstallation of the AC and Opposite party informed the Complainant that he would have to pay the reinstallation charges. On insistence of the Complainant, Opposite Party was ready to reinstall the AC free of cost. When the technician reached the Complainant’s house, the Complainant instructed the technicians to install the outdoor unit on the roof to which the technician informed the Complainant that in order to prevent vibration and to fix the outdoor unit properly on the roof, the Complainant would have to pay Rs. 750/- for a mounting bracket/stand, so that the outdoor unit can be affixed with nut and bolts to the said mounting bracket. However, the Complainant flatly refused to purchase the mounting bracket and instructed to keep the outdoor unit on the floor of the roof. Therefore, the technician reinstalled the outdoor unit as per the instructions of the Complainant. It is submitted that on 21.07.2018, the Complainant called the customer helpline number of the Opposite Party No. 2 and started demanding replacement of the said AC on the ground that there is manufacturing defect in the said AC. On receipt of the said call, a technician visited the Complainant’s house to check the said AC. On examination, it was found that since the outdoor unit was not fixed to any mounting bracket, there is excessive vibration due to which there is gas leakage from the said AC. Therefore, the technician once again requested the Complainant to fit the mounting bracket so that there is no repeat gas leakage from the said AC but Complainant flatly refused. When the Opposite Party refused to accept the unjustified demand for replacement of the said AC, the Complainant started sending emails and made repeated calls on the service helpline number in order to establish deficiency of service on the part of Opposite Party. On 27.09.2018, the Complainant called the service helpline number and started demanding replacement of the said AC on the ground that there is manufacturing defect in the said AC. On receipt of the said call a technician visited the Complainant’s house to check the said AC. On examination the said AC was found functioning perfectly fine. On 15.10.2018, a technician was deputed to go and check the said AC. However, when the technician visited then the Complainant did not allow the technician to check the AC and stated he wants only replacement of the unit. It is submitted that since the very beginning there was only gas leakage from the said AC solely due to the adamancy of the Complainant to get the AC installed on the clay wall and even when the AC was reinstalled the Complainant refused to fix the mounting bracket. Therefore, it is evident that there is no technical defect in the said AC and due to this the Opposite Party did not accept demand of the Complainant for replacement of the said AC.  In this context, reference may kindly be made to the decision of the Hon'ble National Commission in Maruti Udyog Ltd. vs. Casino Dias & Anr., IV (2009) CPJ of 144 (NC). In this case the Hon'ble National Commission held that “where the vehicle was properly attended during warranty and the defective components replaced free of charge by the appellant, but the Complainant is adamant throughout with predetermined mind to get replacement of the vehicle, the order directing replacement of vehicle was set aside”. It is submitted that under the terms of warranty which are binding on the Complainant, the Opposite Party is liable only to repair or replace the defective parts, if any. Hence, the demand of the Complainant for replacement of the said AC or refund of the price of the said AC is liable to be rejected.
14. It is clear from the above circumstances that the said AC was faced certain problem within the warranty period of the said AC and Opposite Party rectified the problem again and again and ready to fix any problem, if any in the said AC. Complainant failed to led any evidence regarding manufacturing defect in the said AC. Hence, there is no deficiency on the part of Opposite Parties and the complaint is dismissed.
15. Order announced on 28.03.2023.

Copy of this order be given to the parties free of cost

File be consigned to Record Room.

(Anil Kumar Bamba)           Member

(Adarsh Nain) Member

(Surinder Kumar Sharma) President