FA.No.1041/2011 against C.C.No.122/2009 District Forum, KHAMMAM.

Between

M/s. Samsung India Electronics Private

Limited, rep. by its Managing Director,

Mumbai.                                                                     ..Appellant/

                                                                                 O.P.2

                And

1. K.Mohan Rao, s/o.Hussain, aged 36 years,

    Occ:Govt. employee, R/o.H.No.7-3-261,

    Dwarakanagar, Khammam Town,

    Khammam District, A.P.                                           Respondent/

                                                                                Complainant

2. Telegana Agencies, rep. by its

    Proprietor, Kaman Bazar,

    Khammam.  A.P.                                                     Respondent/

                                                                                Opp.party 1

Counsel for the Appellant               :  Mr. Bhaskar Poluri

Counsel for the Respondent            :  R1 and R2-served

QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT,

SMT.M.SHREESHA, HON’BLE MEMBER,

AND

SRI S.BHUJANGA RAO, HON’BLE MEMBER.

MONDAY, THE THIRTEENTH DAY OF AUGUST,

TWO THOUSAND TWELVE

Order (Per Smt.M.Shreesha, Hon’ble Member)

***  

Aggrieved by the order in C.C.No.122/2009, on the file of District Forum, Khammam, opposite party No.2 preferred this appeal.

        The brief facts as stated in the complaint are that the complainant purchased Samsung Split A/C. for Rs.24,500/- on 02-5-2008 from opposite party No.1 dealer and from the date of installation itself, the A.C. was emanating noise and was not functioning properly.  On 12-12-2008, the complainant lodged a complaint and once again on 04-3-2009, a Service Engineer attended to the complaint and informed the complainant that the said A.C. has to be replaced.  The complainant submits that inspite of several requests, the opposite parties did not replace the machine and hence he approached the District Forum seeking direction to refund the amount paid with compensation and costs.

        Opposite party no.1 filed counter stating that he is only a dealer and if there are any manufacturing defects, the complainant should approach opposite party no.2 manufacturer and that no liability can be fastened on him.

        Opposite party no.2 filed counter  stating that they have attended to the complaint lodged by the complainant which is very minor in nature and due to wear and tear, minor problems arose which were rectified promptly and opposite party no.2 denies that their Engineer informed the complainant that the machine needs to be replaced.  Opposite party No.2 contends that there is no manufacturing defect and submits that there is no deficiency in service on their behalf.

        The District Forum based on the evidence adduced i.e. Exs.A1 to A3 allowed the complaint in part directing opposite parties 1 and 2 to supply new Air conditioner within one month from the date of order or refund the amount of Rs.24,500/- with interest at 9% p.a. from 02-5-2008 and compensation of Rs.3,000/- and costs of Rs.1000/-.

        Aggrieved by the said order, opposite party no.2 preferred this appeal.

        The facts not in dispute are that the complainant purchased Samsung Split A.C. from opposite party no.1 dealer evidenced under Ex.A2 for Rs.24,500/- on 02-5-2008 and was given a warranty card vide Ex.A1 in which the A.C. is given a comprehensive warranty.  Ex.A3 is also the warranty conditions filed by the complainant.  It is the complainant’s case that the A.C. was not functioning properly and was emanating noise and it was not cooling properly and therefore he lodged a complaint on 12-12-2008 and again on 04-3-2009 and was informed by the Service Engineer that the machine has to be replaced.  We observe from the record that the complainant did not file any job card which establishes the exact nature of defect and the Service Engineer’s remarks.  However, it is not in dispute that the said A.C. is under warranty.   The appellant/O.P.2 stated that the defect is only of a minor nature and that their Service Engineer has attended to it promptly but has also not filed the job card establishing the nature of the defect rectified by the Service Engineer.    The appellant has not explained exactly what the ‘minor defect is’ and if it is hampering the functioning of the A.C.  While admitting to the defect and that their Service Engineer attended to it, opposite party no.2 has also not filed any documentary evidence in support of their contention.  At the same time, there is contributory negligence on behalf of the complainant also in not filing any expert opinion to establish manufacturing defect and also the A.C. is still with the complainant and we are of the considered view that having used it till date, the complainant is not entitled to interest, compensation or costs and keeping in view the equities and principles of natural justice, the complainant shall return the A.C. to opposite party No.2 through opposite party no.1, dealer, and on such return, the complainant is entitled to refund of Rs.24,500/-.

        In the result this appeal is allowed in part and the order of the District Forum is modified directing the complainant to return the A.C. within four weeks of the date of receipt of this order and on such return to opposite party no.2 through opposite party No.1 dealer,  the opposite party No.2 shall refund Rs.24,500/- only.  We set aside the interest, compensation and costs awarded by the District Forum. 

                                                        Sd/-PRESIDENT.

                                                                        Sd/-MEMBER.

                                                                        Sd/-MEMBER.

.

JM                                                                     Dt.13-8-2012.