This is a complaint u/s 35 of the C.P. Act, 2019 made by Ms. Ruma Paul alleging deficiency in service and unfair trade practice on the part of the Opposite Parties i.e. Johnson Controls- Hitachi Air Conditioning India Limited formerly known as (Hitachi Home & Life Solution (India) Limited, The Manager (Opposite Party No. 1) and Sur Sangeet (Proforma Opposite Party No. 3) and accordingly, prays for a direction upon Opposite Party No. 1 to refund Rs.35,500/- along with 18% interest, to pay Rs.20,000/- towards cost of compensation for mental harassment and agony along with litigation cost of Rs.15,000/-. FACTS IN BRIEF The case of the complaint is that she purchased one Air Conditioner being model No. RSNG 318HDEAZ2 which is manufactured by Opposite Party No. 1 for Rs.35,500/- from the dealer i.e. Proforma Opposite Party No. 3 herein, to which Opposite Party No. 3 issued Tax Invoice No. CM21-22/0177 dated 12/04/2021. The said AC was installed on 14/04/2021 by the Hitachi appointed service provider namely, Cool Care, having its office at 13, Mohonlal Street, Kolkata-700004 who charged Rs.999/- from the complainant at the time of installation of the AC. The AC started making loud noise after installation and upon the advice of the engineer, the Outdoor unit was altered and fixed on another place on the next day. But the problem remained still there. Thereafter, the complainant contacted the Proforma Opposite Party No. 3 who contacted Opposite Party No. 1 and the service engineer was sent on 17/04/2021. The problem of the AC was temporary solved without providing any service report to the complainant. But, till date the noise of the AC could not be rectified in spite of several service engineers were sent. As stated in the petition, complainant was not having peaceful sleep and moreover he was also getting complaints from the neighbours for such noise of the AC. The complainant also alleged that the customer care executive of Opposite Party No. 1 ignored her complaint and finally she had to issue a legal notice on 26/06/2021 requesting Opposite Party No. 1 to refund Rs.35,500/- within 15 days. After several email communications being sent, Opposite Party No. 1 sent a reply on 24/07/2021 admitting that there is a noise in the AC as stated in her petition. Thus, being harassed, complainant filed this instant case alleging negligence, unfair trade practice and deficiency in service on the part of the Opposite Parties. Thereafter, complainant by filing a petition prayed for expunging the name of Opposite Party No. 2 which was allowed by this Commission vide order dated 06/05/2022. Opposite Party No. 3 did not contest this case by filing written version despite the notice was being served upon them and so, the matter was heard ex parte against them vide order dated 22/07/2022. Opposite Party No. 1 contested this case by filing written version stating, inter alia, denying all the allegations levelled against them. Their averment is that they have well-supported service center with excellent set-up for after sales and service at customers door steps by maintaining standardized procedure for service and repairs. They further stated that the complainant had purchased the said AC in good and sealed condition with warranty for one year and five years warranty for compressor. They also stated in their written version that the technician found no noise after inspection of the said AC and the complainant had sought for replacement/refund which is expressly excluded in the warranty. Accordingly, Opposite Party No. 1 prayed for dismissal of the instant case. Both parties i.e. complainant and Opposite Party No. 1 adduced evidence and questionnaire. Although complainant filed reply, but no replies were filed by Opposite Party No. 1 in spite of repeated opportunities were being given and finally, the instant case was fixed for argument. Both complainant and Opposite Party No. 1 had filed BNA. POINTS FOR CONSIDERATION: - Whether the complainant is a consumer under the purview of C.P. Act, 2019?
- Whether there was any unfair trade practice and deficiency in service on the part of the Opposite Party as alleged?
- Whether the complainant is entitled to the relief (s) as prayed for?
DECISIONS WITH REASONS All the points are taken up for a comprehensive discussion in order to avoid repetition of facts. It is an admitted fact that the complainant purchased a Hitachi AC being Model No. RSNG 318HDEAZ2 from Opposite Party No. 3 on payment of Rs.35,500/- which is revealed from the copy of a tax invoice issued by Opposite Party No. 3 to the complainant. So, there is no doubt that the complainant is a consumer under the purview of C.P. Act, 2019 since she had purchased a Hitachi made AC from Opposite Party No. 3. From the document marked as Annexure- B which is filed by Opposite Party No. 1 along with their written version, it is found that they have mentioned on the job sheet that there was a noise in the said AC which they rectified to make the noise of the AC normal. We have carefully seen the copy of the warranty terms and conditions with certain exclusions where the warranty would become void also. It is also an admitted fact from the averment of Opposite Party No. 1 in their written version that the said noise issue was attended by their technician on 03/05/2021 for repairing and service. Opposite Party No. 1 in their written version had also agreed to repair the ODU unit on FOC basis from which we can make out that Opposite Party No. 1 was ready to repair the AC free of charges within the warranty period. Now, the question arises why the new AC would crop up with problem immediately after buying on 12/04/2021 for which the technician of Opposite Party N. 1 had to visit for repairing on 03/05/20221 i.e. within a gap of 20 days approx. from the date of purchase and thereafter, the technician of Opposite Party No. 1 made several visits for repairing but the problem was not rectified permanently. Moreover, we find that what was the need of the complainant to take the trouble of lodging complaint with Opposite Party No. 1 for repeated service even after buying the same for Rs.35,500/- from her hard earned money. There was no whisper of Opposite Party No. 1 that the said AC was mishandled by the complainant for which such noise arose. That means, if a new AC purchased on 12/04/2021 and had problem immediately after installation, there was certainly some inherent manufacturing problem. As per Section 34 of the Consumer Protection Act, 2019- (34) "product liability" means the responsibility of a product manufacturer or product seller, of any product or service, to compensate for any harm caused to a consumer by such defective product manufactured or sold or by deficiency in services relating thereto; From the aforesaid discussions, it is evident that during the warranty period of one year quite good number of occasions problems arose in the AC which were reported to the Opposite Parties and their technician who came to attend the same. There is no doubt, no technical expert opinion was produced by any of the parties. However, when the facts speak themselves are clear enough, the absence of expert report does not stand in the wall of holding the AC was suffering from manufacturing defects. The engineer/technicians of the Opposite Party No. 1, no doubt, came to attend the problems but they were unable to remove the defects. So, even after repeated repairing/service from the date of installation, the complainant could not reap the benefit of the new AC by enjoying the cool air of the AC and therefore, the question of repair or replacement does not arise. Both the Opposite Parties could have stepped up and solved the problem at the very early stage after installation when the complaint was made but however, no relief has been sought for against OP No. 3 by the complainant. Complainant had also expunged OP No. 2 from the cause title of the complaint petition during the proceeding of this case. Therefore, we opined that the complainant is entitled to the reliefs by getting the refund of Rs.35,500/- along with interest @ 9% p.a. from Opposite Party No. 1 since there was a deficiency in service on the part of OP No. 1. Since the Complainant did not seek any specific prayer against OP No.3 but fact remains Complainant purchased the AC machine from OP No.3, and she paid the full consideration to OP No.3. In this situation, we deem it appropriate to issue a direction upon OP No.3 to coordinate and follow up with OP No. 1 for the refund of the cost of the AC machine being Rs.35,500/- and both OP No. 1 & 3 to lift the AC in dispute from the complainant’s residence free of cost. Coming to quantum of compensation and litigation expenses, it may be stated here that the complainant faced problem with the said AC within 20 days from the date of installation and the problems occurred again and again and even after the technician attended the same but they were unable to make the AC defect free. So, one can really visualize the plight of the consumer. Thus, the complainant suffered tremendous mental agony and harassment on the act of the Opposite Party No. 1. So, we are of the view that if a direction be given upon Opposite Party No. 1 to pay litigation cost of Rs.5000/-, it would be just and appropriate. Since, we are allowing interest on the refunded amount, we are not inclined to pass any order of compensation for mental harassment and agony. In the end, complainant has succeeded in proving her case. Hence, it is ORDERED That the instant case be and the same is allowed on contest against Opposite Party No. 1 and ex parte Opposite Party No. 3. Opposite Party No. 1 is directed to refund Rs.35,500/- (Rupees Thirty-Five Thousand and Five Hundred Only) along with simple interest @ 9% p.a. from the date of purchase i.e. 12/04/2021 and litigation cost of Rs.5000/- (Rupees Five Thousand Only) within 45 days from the date of this order failing which, the entire amount shall carry interest @ 12% from the date of default. Both OP No. 1 & 3 to lift the AC from the complainant’s residence without charging any cost whatsoever from the complainant. OP No. 3 is to follow up and coordinate with OP No. 1 for refund of the amount of Rs.35,500/- (Rupees Thirty-Five Thousand Five Hundred Only) and other awarded costs as directed above which are to be paid by OP No. 1 within the stipulated time. If the instant order is not complied with by Opposite Party No. 1 as directed, the complainant shall be at liberty to proceed in accordance with law. Dictated and corrected by me Member | 
