Complainant Vikas Sharma through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has prayed that necessary directions may kindly be issued to the opposite parties to replace the defective Air Conditioner and be also ordered to return Rs.10,000/- by opposite parties for change of part (Compressor). He has further claimed Rs.20,000/- for causing harassment to him and has also claimed Rs.10,000/- as litigation expenses, all in the interest of justice.
The case of the complainant in brief is that a Air Conditioner had been purchased by him for Rs.29,200/- from opposite party No.2 i.e. dealer of opposite party No.1, Hitachi Company. It was pleaded that said Air Conditioner had been purchased by the complainant from opposite party No.2 about four years before which was installed by the engineers of the opposite parties in the bedroom of the complainant and he also purchased all the A.C. accessories from the opposite parties and opposite parties also claimed that this product is almost high end range A.C. of this Company and it was also assured that the A.C. will provide best of service and it was also stated that the A.C. in question is multifunctional product. It was further pleaded that after 4-5 months of installation the said A.C. stopped working/functioning and opposite party No.,2 was also informed by the complainant regarding this fact and opposite party No.1 sent their two engineers for checking the fault in the Air Conditioner but they could not rectify the fault in A.C. and opposite party No.2 said the complainant that he contacted with the opposite party No.1 who is service providers from the products of Hitachi Company in the area and they will send their experts for checking and rectifying/detecting the fault in the A.C. in question. It was also pleaded that experts/engineers of the opposite party No.1 visited the premises of the complainant for about ¾ occasion but every time they could not found any fault and failed to rectify the problem which was in the said A.C. and in between A.C. for some time started working but again and again it suddenly stopped functioning and on the last visit the experts/engineers demanded Rs.10,000/- for the change of one part of the A.C. i.e. compressor and said that this part had to be replaced because it could not be repaired and they reached at the conclusion that this part was faulty from the very beginning. It was next pleaded that after the two and half years of the purchase of the A.C. in question the said part was replaced by the opposite parties but even then fault could not be rectified and A.C. did not start functioning and on it the old and original compressor was reinstalled and new part taken by the said experts/engineers with them on the pretext that this part was also likely to be defected and they will bring another part. It was pleaded that compressor of the Air Conditioner again stopped working which was purchased by the complainant from the opposite party No.2 for Rs.10,000/- and when complainant informed about this to opposite party No.2, it clearly told that the compressor in question was not in the warranty period whereas the A.C. modal purchased by the complainant the warranty of compressor was 5 years and the cause of action has arisen at that time when opposite party refused to replace the A.C. and admit the claim of the complainant, hence this complaint.
Notice of the complaint was served upon the opposite parties. Reply of opposite party no.1 i.e. Hitachi India Pvt. Ltd. had been received by post stating therein that Hitachi Home & Solutions (India) Limited located in Ahmedabad is engaged in the business of manufacturing, selling and distribution of Hitachi Air Conditioners in India and Hitachi India Private Limited are not engaged in the business of air conditioners and as such the consumer complaint does not lie against them and requested for pursuing the case against Hitachi Home & Life Solutions (India) and also prayed for dismissal of the suit. Reply of opposite party No.1 had been received by post but nobody has appeared in person on its behalf and it was ordered to be proceeded against exparte vide order dated 10.11.2016.
Written reply also filed by opposite party No.2 through their counsel by admitting that opposite party No.1 is the manufacturer of the product and complainant had purchased an Air Conditioner which was manufactured by the opposite party No.1 through opposite party No.2. It was also admitted that A.C. in question was one of the best product which was produced by the opposite party No.1 but it was denied that it was a multifunctional product. It was stated that the said A.C. was manufactured by opposite party No.1 and it was the only responsibility of the opposite party No.1 to provide services of their product in the area concerned and it was their duty to send their experts for checking and rectifying/detecting the faults if any in the product but the concerned opposite party has nothing to do with the defects in the goods manufactured by them as the opposite party No.2 was only a dealer of opposite party No.1 and it was merely to sell the A.C. manufactured by opposite party No.1. It was further stated that complainant purchased the A.C. more than 4 years back and as such the same was neither under warranty nor the claim is within prescribed period of limitation and the matter in dispute is between the complainant and opposite party No.1 and opposite party No.2 has got no concern with the same. All other averments made in complaint have been denied and lastly prayed for dismissal of the complaint with costs and also prayed that complainant be burdened with compensatory costs for fling a false, frivolous and vexatious claim against them.
5. Counsel for the complainant had tendered into evidence affidavit of complainant Ex.C1 along with copy of bill dated 23.05.2012 Ex.C2 and closed the evidence on behalf of complainant.
6. Counsel for the opposite party No.2 had tendered into evidence affidavit of Sh.Yogesh Vaid Prop. Ex.OP-2/1 and closed the evidence on behalf of opposite party No.2.
7. We have carefully examined all the documents/evidence as available on the complaint records (as duly put forth by the titled/contesting litigants) along with the scope of the adverse inference that may be judicially but discretionarily drawn on account of some of the vital documents that have been somehow, ignored to be produced; of course, in the very back-drop of arguments as put forth by the learned counsels for the present opposing/litigating sides.
8. We find that the complainant did purchase one AC (Hitachi Make) from the opposite party2 Vendor as duly deposed/evidenced vides his affidavit (Ex.C1) and the invoice # 1033 of 23.05.2012 (Ex.C2). We further find that the complainant has somehow failed to produce any cogent or even otherwise some collateral evidence to corroborate his other instant allegations of: i) AC’s ‘mal-functioning’ within 4-5 months of its purchase, ii) lodging of complaint with OP2 vendor, iii) visits of OP1 manufacturer’s representatives for repair of AC, iv) its five-year warranty and then iv) charging of Rs.10,000/- for replacement of its defective compressor etc and in the absence of which all these allegations merely amount to ‘bald’ statements sans any legal aspect and/or statutory value. Moreover, no expert-opinion evidence has been produced to confirm the inherent/manufacturing defect to justify the claim of replacement of the AC in question.
9. On the other hand the opposite party ‘1’ has preferred to stay absent and to be proceeded against ‘ex-parte’ with however having mailed its denial-letter dated 11.07.2016 (as placed on records on 05.08.2016) stating therein that it has been inadvertently arrayed in the present proceedings in place of ‘Hitachi Home & Life Solutions (India) Ltd.’ who deal in Air Conditioners. However, the OP2 Vendor has deposed (as per the written reply) vide the lone affidavit Ex.OP2/1 that the AC in question has been manufactured by the titled OP1 i.e., Hitachi India Private Limited, New Delhi; and they (OP2) have sold the AC being its local ‘Dealers’. Finally, the opposite party2 vendor has straightaway attempted to set-aside his post sales responsibility upon the opposite party1 manufacturers vide his lone affidavit Ex.OP2/1 that shall not be acceptable as per the applicable consumer laws. The OP2 vendor has also expressed its inability to replace the product in the absence of expert’s opinion confirming presence of some manufacturing defect. However, during the course of arguments, the learned counsel for opposite party2 vendor has confirmed the in-order proper functioning of the AC in question & has also offered to get the same checked and put to the right order installation working etc.
10. We find that the complainant has neither produced any record of the OP’s Mechanic alleged visit/detection of ‘manufacturing defect’ in the RO in question nor he has produced any ‘expert opinion’ to support and prove his allegation of the non-functioning of the AC entitling him to replacement etc.
11. In the light of the all above, we are of the considered opinion that the present complaint shall be best disposed of by directing the OP No.1& 2 vendor to get the instant AC thoroughly checked and put to the right perfect working order (free of cost) at the complainant’s residence along with the ‘No Defect Certificate’ within 30 days of the receipt of copy of the present orders.
12. Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.
(Naveen Puri)
President.
ANNOUNCED: (Jagdeep Kaur)
DEC. 22, 2016 Member.
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