Order by:
Smt.Aparana Kundi, Member
1. The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 on the allegations that Sh.Gurdarshan Sharma being sole Proprietor of M/s Sharma Superstore, Moga purchased one Air Conditioner IFB Sac 1.5 Ton 3* 18gb3g3c, SAC no.84151010, vide invoice no.733 dated 13.08.2021 for Rs.36,000/- from Opposite Party No.1, which is manufactured by Opposite Parties no.1 to 4. Further alleged that when the complainant started using the said Air Conditioner, then he found that the said Air Conditioner was not cooling properly. On 14.04.2022, the complainant registered a complaint at Customer care number of Opposite Parties no.2 to 4 and complainant received a SMS from the Opposite Parties regarding the same. On 22.04.2022, the concerned mechanic of Opposite Party no.5 came to the premises of complainant and told him that there is no gas in the AC, then on 26.04.2022 again the concerned mechanics came to the premises of complainant and filled the gas in the AC and thereafter, the AC started cooling properly. But after some days the AC again stopped cooling. On 02.06.2022, the complainant again registered 2nd complaint at customer care number of Opposite Parties no.2 to 4 and complainant also received a SMS on his phone in this regard. On 04.06.2022 to 12.06.2022 technician Jaswinder Singh, Incharge Manish and some other technicians of Opposite Parties no.2 to 5 came to the premises of the complainant and found that there is Micro Gas Leakage problem in the said AC. They tried their best to trace out the Micro point of leakage, but they could not detect the actual point of gas leakage in the AC. They told to complainant that they will send their higher technicians to the premises of the complainant in order to search actual gas leakage point, but after that no other technician of Opposite Parties no.2 to 5 came at the premises of the complainant. Thereafter, the complainant made various requests to the technicians of the Opposite Parties to remove the defect from the AC, but to no effect. The complainant also made various requests to the Opposite Parties either to properly repair the AC or to replace the faulty AC with new one or to refund the amount of Rs.36,000/- to complainant, but they refused to admit the rightful claim of the complainant without assigning any reason. Hence this complaint. Vide instant complaint, the complainant has sought the following reliefs:-
a) Opposite Parties may be directed to replace the AC in question or in the alternative to refund the amount of Rs.36,000/- i.e. cost of the AC to complainant.
b) To pay Rs.4,50,000/- as damages on account of mental tension, physical harassment and economic loss.
c) To pay Rs.15,000/- as litigation expenses.
d) And any other relief which this Commission may deem fit and proper be granted to the complainant in the interest of justice and equity.
2. Opposite Party no.1 appeared through counsel and contested the complaint by filing written reply taking preliminary objections therein inter alia that the present complaint is not maintainable against the answering Opposite Party as the complainant is not entitled to get any relief from this Commission. No deficiency in service has been attributed to the answering Opposite Party. The complainant willfully concealed the material facts from this Commission while filing the present complaint. The answering Opposite Party sold one AC by issuing the proper bill to the complainant, but the answering Opposite Party did not issue any guarantee to the complainant. The guarantee or warranty, as the case may be is always of the manufacturer company. Moreover, the answering Opposite Party never deals with the service of any company and the service centers of the manufacturer company are in the various cities. Further alleged that in case any customer came to the shop of answering Opposite Party, then the same complaint is forwarded to service centre immediately, but the complainant did not approach the answering Opposite Party in respect of any defect into the said AC so there is no deficiency in service on the part of the answering Opposite Party. Infact the said AC is brand new and quite OK. Not only this, on the bill in declaration no.5 & 6 it is specifically mentioned that “The Warranty/Guarantee always stand on behalf of the respective companies” and Our responsibility ceases when goods leaves our godown”. But inspite of this, the complainant filed the present false complaint against the answering Opposite Party without any reason. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.
3. Despite service of notice, none appeared on behalf of the Opposite Parties no.2 to 5, hence Opposite Parties no.2 to 5 were proceeded against exparte.
4. Complainant also filed replication to the written reply of Opposite Party No.1, denying the objections raised by Opposite Party No.1 in its written reply.
5. In order to prove his case, complainant tendered in evidence his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C11.
6. To rebut the evidence of the complainant, Opposite Party No.1 tendered in evidence affidavit of Sh.Abhinav Maheshwari, Authorized Person of Home Solutions Ex.OP1/1 and copy of Aadhar Card Ex.OP1/2.
7. We have heard the counsel for the complainant and gone through the documents placed on record.
8. The case of the complainant is that he has purchased one 1.5 Ton AC of IFB company, vide invoice no.733 dated 13.08.2021 for Rs.36,000/- from Opposite Party No.1 (dealer), manufactured by Opposite Parties no.2 to 5 and the said AC was defected as alleged by the complainant which was not denied by the Opposite Parties. The main grievance of the complainant is that despite lodging various complaints, Opposite Parties failed to remove the defect in the AC in question. On this, defence of the Opposite Party No.1 is that he is only the retailer and nothing to do with any guarantee/warranty of any product. The guarantee or warranty, as the case may be is always of the manufacturer company. Moreover, if any problem occurred in the product in question, the same is to be removed by the service centres of the company. But we do not agree with the contention of the Opposite Party No.1, as normally a layman will approach the seller, if any defect occurs in the product he buys. He would not directly approach the manufacturing company or the service centres. It is the responsibility of the seller to help the complainant to get the product corrected. The seller sells the product and shares its profit then it is his foremost responsibility to do the needful to the satisfaction of his customers. As the seller is dealing on behalf of the company so it is equally responsible. The other plea taken by Opposite Party No.1 is that the complainant did not approach the answering Opposite Party in respect of any defect in the said AC so there is no deficiency in service on the part of the answering Opposite Party. We also do not agree with the aforesaid contention of the Opposite Party No.1, as the complainant has filed this complaint on 14.09.2022 and on receipt of the notice of the complaint, it is well within the knowledge of Opposite Party No.1 that there was problem in the AC in question, but despite being the knowledge of defect in AC, the Opposite Party No.1 failed to do the needful, which amounts to deficiency in service and unfair trade practice on the part of Opposite Party No.1.
9. All the allegations levied by the complainant gone unrebutted and unchallenged through any cogent and convincing evidence on record as the Opposite Parties no.2 to 5 did not appear and contest the proceedings. In this way, the Opposite Parties have impliedly admitted the correctness of the allegations made in the complaint. It also shows that Opposite Parties have no defence to offer or defend the complaint.
10. In view of this, we found that there is certainly a deficiency in service on the part of the Opposite Parties. On this count, the Complainant prayed before this District Consumer Commission to replace the AC in question or to refund the amount of the same and to pay Rs.4,50,000/- as compensation for causing him mental tension and harassment, but we are of the view that the claim for compensation to the tune of Rs.4,50,000/- appears to be exorbitant and excessive. The rationale behind grant of compensation has been to compensate a party of the loss occasioned by it. It is none of the intention of the legislature while legislating the Consumer Protection Act to enrich a particular party at the cost of the other. The compensation has to be awarded in commensuration with the loss occasioned to the complainant. In our considered view, ends of justice would be fully met if the complainant is awarded lump-sum compensation to the tune of Rs.10,000/- and we award the same accordingly.
11. In view of the above discussion, we partly allow the complaint of the complainant and direct the Opposite Parties no.1 to 5, jointly and severally, to refund the amount of the AC in question i.e. Rs.36,000/-(Rupees Thirty Six Thousand only) to the complainant, subject to return of AC in question by the complainant. Further the Opposite Parties no.1 to 5, jointly and directly, are directed to pay compository amount of Rs.10,000/- (Rupees Ten Thousand only) towards compensation and litigation costs to the complainant. The compliance of this order be made by the Opposite Party within 45 days from the date of receipt of copy of this order, failing which, the Opposite Parties are further burdened with Rs.7000/-(Rupees Seven Thousand only) to be paid to the complainant for non compliance of the order. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced on Open Commission
