BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM; FATEHABAD.
Complaint Case No.196 of 2016.
Date of Instt.:28.07.2016.
Date of Decision:18 .12 .2017.
Krishna Taneja, S/o Sh.Nand Lal Taneja, R/o Nehar Colony, Fatehabad, Tehsil and District Fatehabad.
..Complainant
Versus
1. Authorized Person, Jain Enterprises, SBI Road, Behind Grain Market, Fatehabad.
2. Authorized Person, Registered Office, Hitachi Home & Life Solutions (India) Ltd., 9th Floor, Abhijeet, Mithakhali Six Roads, Ahmedabad; 380 006
3. Corporate Head, Corporate Office, Hitachi Home & Life Solutions (India) Ltd., A Johnson Controls – Hitachi Air Conditioning Company, Shop No.TF:301. 3rd Floor, DMRC Building, New Ashok Nagar Metro Station, New Delhi -110096, India.
4. Authorized Person, Head Office & Works, Hitachi Complex, Karan Nagar Kadi, Distt. Mehsana -382727 Gujrat, India.
5. Authorized Distributor Hitachi, M/s Radhika Marketing SCO 95, PLA Delhi Road, Hisar.
..Respondents/OPs
Before: Sh.Raghbir Singh, President.
Sh.R.S.Panghal, Member.
Mrs.Ansuya Bishnoi, Member.
Present: Sh.Vinod Madan, Adv. for the complainant.
Sh.Yogesh Gupta, Adv. for the OP No.1.
Sh. B.S.Parihar, Adv. for the OPs No.2 to 4.
Sh.Sameer Taneja, Adv. for OP No.5.
ORDER
The present complaint under Section 12 of Consumer Protection Act, 1986 has been filed by the complainant against the OPs with the averments that he had purchased an Air-Conditioner make Hitachi Split Unit from the OP No.1 for an amount of Rs.36,500/- vide Bill No.11938 dated 04.07.2015 for his personal use. The said unit was installed at the residential address of the complainant. It is further submitted that after purchase of the Split AC the weather condition in that season was so good and as such there is no ample need of cooling in the room. Therefore, the alleged unit was not used frequently. It is further submitted that in the next season i.e. summer of 2016 in the month of April, the problem occurred in the unit as the cooling efficiency had become very low. Therefore the complainant made complaint to OP No.1 on 27.04.2016 and thereafter on 09.06.2016. In response to the above said complaint OP No.1 sent a mechanic to check the fault but no action was taken by the OPs till today. It is further submitted that the complainant was not satisfied with the job work of the OPs and requested to OP No.1 for replacement of the unit or to refund the amount, but no heed was paid by OP No.1 till today.
2. It is further submitted that the complainant is not satisfied with the cooling efficiency and loud noise of out-door of the unit. Despite many requests made by the complainant for rectification of the fault no action was taken by the OPs. It is also submitted that the fault in the unit crept during the warranty period. The complainant also sent a legal registered notice to the OPs on 20.06.2016 through his counsel but to no avail. Even the OPs did not bother to give any reply to the legal notice. The above said act on the part of OPs amounts to deficiency in rendering service to the complainant. Therefore the complainant is entitled for replacement of the unit or to refund the amount along-with compensation. Hence, the present complaint.
3. On being served OP No.1 appeared and resisted the complaint by filing a written statement wherein various preliminary objections; that the instant complaint is abuse process of law and the same is based on frivolous and baseless facts; that the complainant has no cause of action to file the present complaint ; that the complainant does not fall under the definition of consumer as provided under the Consumer Protection Act, 1986; that the complainant has not come to this Forum with clean hands; that the present complaint is not maintainable against the answering OP; that the complaint is time barred; that there is no unfair trade practice and deficiency on the part of OP No.1; that the complainant is estopped by his own act and conduct, have been raised.
4. On merits, it is admitted by the OP No.1 that the said unit was purchased by the complainant from him. However all the other allegations made against the OP No.1 have been denied. It is further submitted that Op No.1 had purchased the above said unit from the Authorized Distributor and had sold the said unit to the complainant in a sealed condition and in which condition the unit was purchased by the OP No.1. It is further submitted the warranty of AC was one year and during the period no complaint in respect of the AC had been received by the OP No.1 and as such there is no deficiency or unfair trade practice on the part of OP No.1 in rendering service to the complainant. As such the present complaint is liable to be dismissed against the OP No.1.
5. Ops No.2 to 4 also filed a joint written statement wherein various preliminary objections with regard to maintainability, cause of action, locus-standi, estoppal and barred by limitation, have been raised.
6. On merits it is submitted that the complainant never approached the answering OPs with any complaint regarding the product as alleged in the present complaint. It is further submitted that answering OPs is one of renowned company in India and is engaged in business of manufacturing and electronic and its sales. That on a single time thousands of units are manufactured and if there is any manufacturing defect during the manufacturing of the same then the defect will occur in the entire lot. However, the answering OPs has not received any complaint from any of its customers who are using the product manufactured by the OPs.
7. It is further submitted that it is a settled proposition of law that “an equipment or machinery cannot be ordered to be replaced if it can be repaired”. It is further submitted that the unit in question is required to be checked by the proper analysis by an appropriate laboratory to arrive at a proper conclusion as to whether the unit has a manufacturing defect or not.
8. All the allegations made in the complaint have been cotroverted by the OPs No.2 to 4 and it is further submitted that there is no deficiency or unfair trade practice on the part of answering OPs in rendering service to the complainant and as such the present complaint is liable to be dismissed.
9. The complainant tendered in evidence his affidavit as Ex.CW1/A wherein the averments made in the complaint, have been reaffirmed. The complainant in support of his case also produced documents Ex.C1 to C10. On the other hand Sh. Subhash Kumar, Authorized Signatory of OPs No.2 to 4 filed his affidavit. OPs No.2 to 4 in support of their case also produced documents in evidence as Annexure RW2/1 to RW2/23. Sh.Parveen Kumar Jain filed his affidavit as Annexure RW1/A on behalf of OP No.1 along-with documents Annexure RW1/B. Sh.Sunil Mehta filed his affidavit as Annexure RW2/A in evidence of behalf of OP No.5.
10. We have duly examined the entire record placed on the case file and have also considered the rival contentions advanced by the learned counsel for all the parties. It is not disputed that the Air Conditioner in question was purchased by the complainant from OP no.1. It is also not disputed that OPs No.2 to 4 are manufacturer of the said Air Conditioner and OP No.5 is authorized distributor of OPs No.2 to 4 from whom the OP No.1 had purchased the Air Conditioner in question. It is the case of the complainant that the Air Conditioner in question purchased by him from OP No.1 suffered from inherent manufacturing defect and as such he is entitled for replacement of the unit or refund of the original cost of the same.
11. It is settled proposition of law that a unit can be replaced or the original cost of the same can be refunded in case there is inherent manufacturing defect in the same. Therefore the first question that arises for consideration before this Forum is as to whether Air Conditioner in question suffered from inherent defect or not. It is pertinent to mention here that to establish the claim for replacement of the AC or refund of the price of the same the complainant is required to prove through cogent, convincing and adequate evidence supported by the opinion of electronics engineer/ expert that the Air Conditioner in question suffered from inherent manufacturing defect. In our opinion the report of electronics engineer in such cases is essential so as to enable to this Forum to come to the conclusion as to what were defects persisting in the unit and whether those defects were actual inherent manufacturing defects or only minor defects. Reliance is placed on the judgment cited as 2001(1) CPJ 9 (SC) and judgment cited as 2006(2) CPJ 3 (SC) wherein the Hon’ble Apex Court laid down that the manufacturer could not be issued to replace the car or refund the price merely because some defects, appear which could be rectified or defective parts could be replaced under warranty.
12. In the present case, admittedly, no report of the electronics engineer/ expert has been produced on record by the complainant to prove that the Air Conditioner in question is suffering from inherent manufacturing defects. Therefore we are of the considered opinion that the Air Conditioner can neither be ordered to be replaced nor the price thereof can be ordered to be refunded.
13. It is also the case of the complainant that in the month of April, 2016 the cooling efficiency of the unit became very low and the same was not proper. Therefore he had to approach the OPs for removing the default in the unit. However the OPs failed to rectify the default in the Air Conditioner in question. On the other hand the OP No.1 and OPs No.2 to 4 in their replies contested the complaint mainly on the ground that the complainant never approached to them with any complaint regarding the product as alleged in the complaint. However the above contention/ plea taken by the OPs, is not tenable as from perusal of the documents Annexure C-9 and C-10 produced by the complainant it is evident that the complaint regarding fault in the unit was lodged by the complainant with the OPs. It is also pertinent to discuss here that during the proceedings of the present case the complainant filed an application for giving directions to OP No.1 for production of the original Complaint Register for the year 2016. However in reply the above said application the OP No.1 filed reply that no such Complaint Register is being maintained by the OP No.1. In view of the above said facts inference against the OPs can be drawn. Therefore we are of the considered opinion that unit in question was having a defect and for rectification of the same he had approached to the OPs.
14. In Jose Philip Mampillil Vs. Premier Automobiles Ltd. & Anr.(Supra) The Hon’ble Apex Court held that where the defects in various parts of the car are established, replacement of entire car or refund of price is not called but direction can be given for rectification of the defects and replacements of defective parts.
15. In view of the above said judgment rendered by Hon’ble Apex Court the OPs No.2 to 4 are directed to rectify the defects of the Air Conditioner and shall replace the defective parts of the Air Conditioner free of cost and shall provide a certificate to this effect to the complainant given by independent technical expert. The OPs No.2 to 4 are also directed to pay a compensation of Rs.5,000/- to the complainant. The deficiency on the part of OP No.1 and OP No.5 is not proved and as such the present complaint against the OP No.1 and OP No.5 is hereby dismissed. The present complaint is accordingly disposed of. The compliance of this order be made within a period of one month from the receipt of the present order otherwise interest @ 6% per annum will have to be paid by the OPs No.2 to 4 from the date of order till realization. A copy of this order be supplied to the parties free of cost as provided in the rules. File be consigned to record room after due compliance.
ANNOUNCED IN OPEN FORUM. Dt.18.12.2017
(Ansuya Bishnoi) (R.S.Panghal) (Raghbir Singh)
Member Member President DCDRF, Fatehabad
