Delhi

North East

CC/358/2015

N.P. Nishant - Complainant(s)

Versus

Hitachi Company - Opp.Party(s)

01 Jun 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

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

 

Complaint Case No. 358/15

 

In the matter of:

 

	N.P.Nishant S/o Late Shri Sona Das R/o C-156, East Gokul pur, P.S.Jyoti Nagar, Delhi-110094.	Complainant
	Versus
1.                 2.               3.	Hitachi Company (Ltd) Through its Manager Services Operation /CEO, 9th Floor, Abhijeet-I, Mithkali Six Roads, Navrangpura, Ahmadabad-380006. Also at: Hitachi Hua & Life Solution (Ltd) Hitachi Complex, Karankadi, Distt Mehsana, Gujarat, India.   Hitachi Service Centre (Delhi A.C. Centre) Buddha Vihar Road, Badar pur Extn. Tajpur, Badarpur, New Delhi-110044.   Also at: Hitachi Home and Life Solution Ltd. A-261, Okhla Industrial Area Phase-1, New Delhi-110020.   Electronics Plaza Through its owner Shop no.1/1449/3, Main 100 Ft road, Durga Puri Extn. Delhi-110093.	Opposite Parties

 

DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :

23.09.2015 24.05.2018 01.06.2018

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Briefly stated the facts narrated by the complainant in the present complaint are that he had purchased one Hitachi Split AC 3 star 1.5ton, manufactured by OP1 company from OP3 retail outlet on 20.06.2014 vide bill no. 403/ book no. 09 for a sum of Rs. 35,500/-. The complainant has stated that in less than one year of purchase, while the said AC was still in warranty period, it started giving problems in cooling and the complainant lodged the first complaint with OP3 on 30.04.2015 on DM-HHLHLP vide request No. 15043003359 for which the complainant received the message on his mobile from the OP2 service centre that “Thanks for calling Hitachi service centre. Your request 15043003359 for scheduled PMS service of your AC shall be attended ASAP.” However no one came to the complainant’s house to provide any service for the said AC. On 27.05.2015, the complainant again made a complaint to OP3 for service of the AC for better cooling and maintenance vide complaint dated 27.05.2015- DMHTCPS. The complainant received a message on his mobile “Thanks for your query. An HT campus counselor will get in touch with you regarding your query. Your OTP for registration is WGEY”. However no one again visited at the house of the complainant from the side of OP3. Lastly the complainant made complaint on 25.07.2015 to OP3 for the service of the said AC vide complaint no. YD-HHLHLP for which the OP3 replied “thanks for calling Hitachi service centre. Your request 15072503472 for non-cooling of AC shall be attended ASAP.” However, the said complaint also went unattended to like the previous two complaints. The complainant has stated that the OP1 and OP3 have failed to give three service of the said AC while the complaint was made within warranty i.e. one year after purchased date and gave no attention to solve the cooling problem of the said AC which affected his family and his children’s study and the said AC has been rendered useless like rusted iron and has alleged that the OP Hitachi has not provided good service and good AC to the complainant and therefore had sent a legal notice dated 16.09.2015 to the OPs for his grievances but the OPs gave no heed to the same and therefore the complainant was constrained to file the present complaint praying for issuances of directions by this Forum to the OPs to refund Rs. 35,500/- as cost of the AC alongwith 24% interest p.a. and Rs. 1,00,000/- on account of compensation towards mental and physical harassment and agony faced by the complainant due to the OPs to the complainant.

Complainant has annexed copy of the retail invoice dated 20.06.2014 towards purchase of the AC from OP3, copy of legal notice dated 15.09.2015 with postal receipts.

2. Notice was issued to the OPs. OP3 failed to appear despite service effected on 10.10.2015 and was therefore proceeded against ex-parte vide order dated 04.12.2015. OP1 and OP2 entered appearance on 02.11.2015 and filed written statement on 04.12.2015 in which it took the preliminary objection that the subject AC in question was sold with one year warranty and under the warranty clause the OP was to carry out repairs free of cost and that the complainant had used the said AC with full satisfaction without ant technical issue within the said warranty period and had approached the OP1 and OP2 within the warranty period with report regarding some cooling issues which were resolved by OP1 and OP2 to the satisfaction of the complainant. The OP further took the defence that the said AC had no manufacturing defect and was working properly and therefore there is no deficiency of service or negligence on the part of OP1 and OP2. OP1 and OP2 further contended that the complainant has neither produced report of any recognized laboratory or expert opinion to prove manufacturing defects in the said AC and cited the case law of Vikram Bajaj Vs Hind Motors (India) Ltd 2009 (II) CLT 670 in which the Hon’ble NCDRC had held that where the complainant has failed to produce any expert opinion / evidence to prove that the goods is suffering from manufacturing or latent defect, the consumer complaint is liable to be dismissed. The OP further took the defence that the complainant adamantly demanded refund / replacement of the said AC which was denied by OP1 since the issue therein could be resolved by the service provider and not by OP1 which clearly prove that the said AC was working fine and placed reliance on the judgment of Hon’ble National Commission in Shivprasad Paper Industries Vs Senior Machinery Company I (2006) CPJ 92(NC) in which the Hon’ble NCDRC held that it is settled law and equipment of machinery cannot be ordered to be replaced if it can be repaired. Rest of the parawise denial were summary denials of the allegation leveled by the complainant in his complaint and no specific defence was taken therein by OP1 and OP2.
3. Rejoinder to the written statement was filed by the complainant in which the complainant reiterated his grievance of OPs having failed to give the three services as promise to the complainant as the time of selling the Hitachi AC and averred that the facts of the case Vikram Bajaj Vs Hind motors and Shivprasad paper industries Vs Senior Machinery Company are neither applicable not relevant to the facts of the present case.
4. Evidence by way of affidavit were filed by complainant exhibiting the retail invoice, warranty card and legal notice with postal receipts. Evidence by way of affidavit was filed by the OP reiterating its defence and placing reliance on additional case laws of Hon’ble Supreme Court for defence of no deficiency of service, negligence on the part of OP1 giving rise to any cause of action for claiming damages by the complainant against OP1 and relied upon the judgment of Hon’ble Supreme Court in Interglobe Aviation Ltd Vs N. Satchidanand (2011) 7 SCC 463 in this regard. The OP1 further relied upon the judgment of Hon’ble Supreme Court in Ravneet Singh Bagga Vs KLM Royal Dutch Airlines (2001) SCC 66 in which the Hon’ble Supreme Court had dealt with the onus of proof for deficiency of service which lies on the complainant.
5. Written arguments were filed by both complainant as well as OP1 and OP2 delineating their respective claim and defence.
6. Additional evidence was filed by complainant exhibiting the SMS sent by OP on 30.04.2015 and 25.07.2015 for acknowledging call to their service centre pertaining to service and cooling problem of the said AC which “shall be attended ASAP”.
7. We have heard the rival contention of the complainant as well as OP1 and OP2 and have perused the documentary evidence placed on record in support of their respective case/defence.

It is not in dispute that the subject AC in question was purchased by the complainant from OP3 and was manufactured by OP1. However in its written statement, OP1 and OP2 could not place on record any documentary evidence on record to prove that the complaint lodged by the complainant on 30.04.2015 was attended to by any of the technician / engineer under any jobsheet or jobcard. During the course of arguments the OP strongly objected to misrepresentation by the complainant of passing of the message dated 27.05.2015 as being sent by the OP whereas the same did not pertain to the OP and was conceded to by the complainant before this Forum. However, notwithstanding the wrong message or no message, the OP could not explain or establish any service report or repair job done with respect to the AC in response to 30.04.2015 complaint lodged by the complainant while the subject AC was still within warranty and even subsequent complaint dated 25.07.2015 pertaining to cooling problem. The OP1 and OP2 have casually replied to the specific allegations of non responsiveness to the complaints of the complainant by merely stating that the issues regarding the cooling of the AC were resolved by OP1 and OP2 as per warranty entitlement without giving any specific dates for resolution of problem or any jobcard. We therefore do not find force or weightage in the defence taken by OP1 and OP2 since the same is uncorroborated and unsupported in absence of any jobcard or any service report. It is clear that the complaint of the complainant with regard to the subject AC while it was within warranty and even when outside warranty were unattended to by the OP1 and OP2 which is deficiency of service well proven by the complainant and to a great extent by OP1 and OP2 themselves since the absence of jobcard cannot salvage their own defence or come to their rescue.

We therefore find merit in the present complaint of the complainant as he has been able to prove deficiency of service against the OPs. We therefore direct all the OPs jointly and severally as manufacturer, service centre and authorized dealer to refund sum of Rs. 35,500/- as cost of the Air Conditioner to the complainant alongwith interest @ 9% from the date of filing of the present complaint till realization. We further direct all the OPs jointly and severally to pay a sum of Rs. 10,000/- to the complainant towards mental and physical agony and harassment suffered due to the OPs. Let the order be complied within 30 days from the date of receipt of copy of this order.

8.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
9.   File be consigned to record room.
10.   Announced on 01.06.2018

 

(N.K. Sharma)      President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member