PER:

Charanjit Singh, President

1        The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 34, 35 and 36 against the opposite parties on the allegations that the complainant has appointed Harjit Singh as his attorney holder vide affidavit/ power of attorney deed dated 24.6.2023 who is authorized to contest, sign, file application, affidavit etc. on behalf of complainant. Harjit Singh is fully conversant with the facts of the present complaint who is being the son in law of the complainant. The complainant has purchased an Onida air Conditioner (A.C) Split 1.5 ton, Model-SR18355 from the opposite party No. 1 who is authorized dealer of the Onida Air Conditioner (AC) for his personal use vide Bill No. 684 dated 5.7.2022 for an amount of Rs. 38,000/- as such the complainant is consumer of the opposite party No. 1 and is beneficiary of the services provided by the opposite party No. 1, thus is very much entitled to receive the benefits and subsist being the consumer of opposite party no. 1. The above said Air Conditioner (AC) had been purchased by the complainant from the opposite party No. 1 at the time of marriage of his daughter. The complainant has given the above said Air Conditioner as a gift to his daughter at the time of marriage. After about few months of the purchase of the said Air Conditioner, the Air Conditioner was shut down. The complainant was astounded when the Air Conditioner was not working in the hour of need. The complainant immediately visited and inform to party No. 1 regarding the defect in the above said Air conditioner. Thereafter, the opposite party No. 1 assured the complainant that the employee of the opposite party No. 1 will visit the premises of the complainant where the AC is being installed. The opposite party No.1 sent his employees and they found the defect of the compressor of the AC. The complainant again visited the office the opposite party No. 1 alongwith Kulwinder Singh son of Kuldeep Singh resident of village Fatehabad and the opposite party No. 1 in the presence of Kulwinder Singh admitted that the compressor of the AC is not working and as such, the AC was shut down. The opposite party further informed to the complainant that their AC is within the Warranty period and the AC will be replaced with the new one. Thereafter, the complainant visited the opposite party No. 1 again and again for the repair of his compressor but with no effect. Again on 19.6.2023, the complainant went to the opposite party No. 1 and requested him to remove the said defect of the said Air Conditioner compressor as opposite party No. 1 on the same day sent his employee from the company to remove the AC of the complainant and had assured the complainant the AC of the complainant will be replaced with new one.  On the same day, the opposite party No.1 informed the complainant that the defect of the said AC is incurable and referred to the opposite party No. 2. The opposite party No. 2 assured the complainant that the matter will be solved at the earliest. Thereafter, the complainant approached to the opposite parties No. 2 and 3 through mobile phone many a times but they linger on the matter on one pretext or the other by taking lame excuses and opposite parties have failed to remove the said defect of the compressor of Air Conditioner or to return the same to the complainant so far.  The complainant has prayed that the opposite parties may kindly be directed to provide a Brand New Air Conditioner to the complainant as well as Rs. 50,000/- as compensation on account of mental and physical harassment caused to the complainant and litigation charges to the tune of Rs. 5,000/- in the interest of justice, equity and fair play. Alongwith the complaint, the complainant has placed on record affidavit of Balbir Singh complainant Ex. C-1, Self attested copy of Adhar Card of Balbir Singh Ex. C-2, Attested copy of Aadhar Card of Harjit Singh Ex. C-3, Attested copy of Bill No. 684 of Air Conditioner Ex. C-4, Notary attested affidavit of Harjit Singh on behalf of Balbir Singh Ex. C-5, Copy of Call History Details Ex. C-6.

2        Notice of this complaint was sent to the opposite parties and opposite party No. 1, 3 appeared through counsel and filed written version by interalia pleadings that the complaint filed by the complainant is not maintainable earlier in law, facts and circumstances of the case and is liable to be dismissed in limnie. The alleged product mentioned in the complaint is of a true and merchantable quality absolutely free from any manufacturing defect. The opposite party/ company’s liability arises only when the product is having manufacturing defects i.e. due to usage of defective material/ faulty workmanship. Thus opposite parties are not liable if the product is damaged due to misuse, negligence, improper or inadequate maintenance. The complainant has suppressed, distorted and concealed vital and material facts germane to the issue.  Without prejudice to the above, the present complaint is not maintainable since the alleged defective AC has not been got inspected from the approved laboratory by the complainant as is required under the law. The opposite parties cannot be held liable unless there is manufacturing defect in the same i.e. due to usage of defective material/ faulty workmanship. There is no problem in the alleged produce as falsely alleged in the complaint. The power of attorney/ affidavit is not legal and genuine document. Harjit Singh son of Karnail Singh purchased an Onida Air Conditioner (AC) Split 1.5 Ton for an amount of Rs. 34,500/- vide Bill No. 684 dated 5.7.2022 and not for an amount of Rs. 38,000/-. The opposite parties had neither given any performance guarantee/ warranty/ assurance regarding the said product to the complainant or Harjit Singh nor authorized any person to give any guarantee/ warranty / assurance in this regard. Infact earlier the complaint was lodged by the complainant on 15.1.2022 and the employee of the company visited the premises of the complainant and it was found low voltage in the said premises due to which the said product was unable to work properly. Thereafter, on 22.5.2023, the service of the said AC was got done by the authorized employee of the company free of cost. Thereafter, on 16.6.2023, Harjit Singh himself brought the said AC to the shop of opposite party No. 1 in dismantle condition without any approval on the part of the opposite parties. On the next day i.e. 17.6.2023, the authorized technician of the company visited the shop of dealer. After proper through inspection of the said AC, the same is found in proper working condition without any fault or defect. Thereafter, said Harjit Singh was duly informed that the said AC is properly working without any fault or defect and further requested to bring back the said AC upon which said Harjit Singh assured the authorized employee of the company that he will bring back the said AC within a week period but instead he filed the present false and wrong complaint against the opposite parties by leveling total false and baseless allegations with ulterior motive. The electronic product sells on limited warrantee/ guarantee basis and the service engineer of the company visited customer whenever the complaint was lodged and found the product working to the satisfaction of consumer and there remains no problem in the product to be resolved. The manufacturing company only liable in case if there is any manufacturing defect in the said product and not otherwise. The opposite parties cannot be held liable or responsible for any alleged defect in any manner. The product mentioned in the complaint is of a true and merchantable quality absolutely free from any manufacturing defect. The opposite party Company’s liability arises only when the product is having manufacturing defects i.e. due to usage of defective material/ faulty workmanship. The opposite parties are not liable if product is damaged due to misuse, negligence, improper or inadequate maintenance. The opposite parties are not liable for the consequential loss or indirect loss. The complainant has no right to demand damages or compensation for any accrued losses. The electronic product can be damaged for any reason other than manufacturing defect. The life/ performance of same dependents on many other factors. The opposite parties have not committed any deficiency of service or unfair trade practice.  The opposite parties No.1 and 3 have denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version, the opposite parties No. 1 and 3 have placed on record affidavit of Bhupinder Singh Ex. OP-1, self attested copy of authority letter in favour of Bhupinder Singh Area Manager Ex. OP-2, Self attested copy of identity card of Bhupinder Singh Ex. OP-3, Self attested copy of call history of Harjit Singh alongwith remarks Ex. OP-4.

3        The present complaint has been withdrawn by the complainant against the opposite party No. 2 vide order dated 28.3.2024.

4        We have heard the complainant and Ld. counsel for the opposite parties No. 1 and 3 and carefully gone through the record on the file.

5        The complainant contended that he has purchased an Onida air Conditioner (A.C) Split 1.5 ton, Model-SR18355 from the opposite party No. 1 who is authorized dealer of the Onida Air Conditioner (AC) for his personal use vide Bill No. 684 dated 5.7.2022 for an amount of Rs.38,000/-. He further contended that the above said Air Conditioner (AC) had been purchased by the complainant from the opposite party No. 1 at the time of marriage of his daughter. The complainant has given the above said Air Conditioner as a gift to his daughter at the time of marriage. After about few months of the purchase of the said Air Conditioner, the Air Conditioner was shut down. The complainant was astounded when the Air Conditioner was not working in the hour of need. The complainant immediately visited and inform to party No. 1 regarding the defect in the above said Air conditioner. Thereafter, the opposite party No. 1 assured the complainant that the employee of the opposite party No. 1 will visit the premises of the complainant where the AC is being installed. The opposite party No.1 sent his employees and they found the defect of the compressor of the AC. The complainant again visited the office of the opposite party No. 1 alongwith Kulwinder Singh son of Kuldeep Singh resident of village Fatehabad. He also contended that the opposite party No. 1 in the presence of Kulwinder Singh admitted that the compressor of the AC is not working and as such, the AC was shut down. The opposite party further informed to the complainant that their AC is within the Warranty period and the AC will be replaced with the new one. Thereafter, the complainant visited the opposite party No. 1 again and again for the repair of his compressor but with no effect. Again on 19.6.2023, the complainant went to the opposite party No. 1 and requested him to remove the said defect of the said Air Conditioner compressor as opposite party No. 1 on the same day sent his employee from the company to remove the AC of the complainant and had assured the complainant the AC of the complainant will be replaced with new one.  He further contended that on the same day, the opposite party No.1 informed the complainant that the defect of the said AC is incurable and referred to the opposite party No. 2. The opposite party No. 2 assured the complainant that the matter will be solved at the earliest. Thereafter, the complainant approached to the opposite parties No. 2 and 3 through mobile phone many a times but they linger on the matter on one pretext or the other by taking lame excuses and opposite parties have failed to remove the said defect of the compressor of Air Conditioner or to return the same to the complainant so far and prayed that the present complaint may be allowed.

6        Ld. counsel for the opposite parties NO. 1 and 3 contended that the complaint filed by the complainant is not maintainable earlier in law, facts and circumstances of the case and is liable to be dismissed in limnie. The alleged product mentioned in the complaint is of a true and merchantable quality absolutely free from any manufacturing defect. The opposite party/ company’s liability arises only when the product is having manufacturing defects i.e. due to usage of defective material/ faulty workmanship. Thus opposite parties are not liable if the product is damaged due to misuse, negligence, improper or inadequate maintenance. He further contended that the complainant has suppressed, distorted and concealed vital and material facts germane to the issue.  Without prejudice to the above, the present complaint is not maintainable since the alleged defective AC has not been got inspected from the approved laboratory by the complainant as is required under the law. The opposite parties cannot be held liable unless there is manufacturing defect in the same i.e. due to usage of defective material/ faulty workmanship. There is no problem in the alleged produce as falsely alleged in the complaint. The power of attorney/ affidavit is not legal and genuine document. Harjit Singh son of Karnail Singh purchased an Onida Air Conditioner (AC) Split 1.5 Ton for an amount of Rs. 34,500/- vide Bill No. 684 dated 5.7.2022 and not for an amount of Rs. 38,000/-. The opposite parties had neither given any performance guarantee/ warranty/ assurance regarding the said product to the complainant or Harjit Singh nor authorized any person to give any guarantee/ warranty / assurance in this regard. Infact earlier the complaint was lodged by the complainant on 15.1.2022 and the employee of the company visited the premises of the complainant and it was found low voltage in the said premises due to which the said product was unable to work properly. Thereafter, on 22.5.2023, the service of the said AC was got done by the authorized employee of the company free of cost. He further contended that on 16.6.2023, Harjit Singh himself brought the said AC to the shop of opposite party No. 1 in dismantle condition without any approval on the part of the opposite parties. On the next day i.e. 17.6.2023, the authorized technician of the company visited the shop of dealer. After proper through inspection of the said AC, the same is found in proper working condition without any fault or defect. He further contended that said Harjit Singh was duly informed that the said AC is properly working without any fault or defect and further requested to bring back the said AC upon which said Harjit Singh assured the authorized employee of the company that he will bring back the said AC within a week period but instead he filed the present false and wrong complaint against the opposite parties by leveling total false and baseless allegations with ulterior motive. The electronic product sells on limited warrantee/ guarantee basis and the service engineer of the company visited customer whenever the complaint was lodged and found the product working to the satisfaction of consumer and there remains no problem in the product to be resolved. He further contended that the manufacturing company only liable in case if there is any manufacturing defect in the said product and not otherwise. The opposite parties cannot be held liable or responsible for any alleged defect in any manner. The product mentioned in the complaint is of a true and merchantable quality absolutely free from any manufacturing defect. The opposite party Company’s liability arises only when the product is having manufacturing defects i.e. due to usage of defective material/ faulty workmanship. The opposite parties are not liable if product is damaged due to misuse, negligence, improper or inadequate maintenance. The opposite parties are not liable for the consequential loss or indirect loss. The complainant has no right to demand damages or compensation for any accrued losses. The electronic product can be damaged for any reason other than manufacturing defect. The life/ performance of same dependents on many other factors. The opposite parties have not committed any deficiency of service or unfair trade practice and prayed that the present complaint may be dismissed.

7        We have carefully gone through the rival contention of the parties.

8        In the present case, it is not disputed that the complainant has purchased the AC in question from the opposite party No. 1 vide invoice Ex. C-4 on 5.7.2022 for an amount of Rs. 38,000/-.  According to complainant immediately after the purchase of AC in question started giving problem and the complainant made complaint to the opposite party and employees of the opposite party No. 1 visited the house of complainant and found the defect in the compressor of AC and it was not cured. But according to the opposite party No. 1 their employee visited the house of complainant and they found that the AC in question of in working condition and there was problem of low voltage in the area. From this it is clear that the complainant is facing problems in the AC in question, therefore he lodged complaints to the opposite parties. The complainant has placed on record call history detail Ex. C-5 which shows that the complainant made several requests to the opposite parties for redressal of his grievances. As such above it is proved that AC in question was not working properly and there was some problem in the said product. Any consumer would like to purchase a brand new product just to avoid any unnecessary hardship and inconvenience, so that the said product may work properly at least for a minimum period of two three years.

9        The expression ‘deficiency’ of services is defined under Section 2 (1) (g) of the Consumer Protection Act, 1986 [Now Section 2(11) of the Consumer Protection Act, 2019], which is reproduced as under: “

(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.

 The quality, standard, purity and potency of the goods have to be considered in the light of definition of the word, “defect”, as given in Section 2 (1) (f) of Consumer Protection Act, 1986 [now Section 2 (10) of the Consumer Protection Act, 2019], which is reproduced as under:

“(f) "defect" means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods.”

On perusal of above provisions of the Act, it is clear that “defect” means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard, which is required to be maintained by or under any law for the time being in force. Keeping in view the above credentials, the ‘defect’ is to be ascertained and if such a defect occurs in a brand new product, then the onus is upon the manufacturer to prove that it is free from any defect and the defect in the same was not a manufacturing one. The OPs have failed to prove that the defect in the product was not a manufacturing defect.

10      It is admitted fact that the complainant is approaching the opposite parties several times from the very start and call history Ex. C-5 shows that there is some problem in the AC in question from the very beginning. The record shows that the complainant has purchased the AC in question on 5.7.2022 and made the complaint to the opposite parties again and again. It all shows that there is some inherit defect in the AC in question. The perusal of record shows that defect in the product in question occurred again and again in a very short period. In this regard, Hon’ble Delhi State Commission, New Delhi in case titled as Jugnu Dhillon Vs. Reliance Digital Retail Limited 11(2014) CPJ page 17 has held that

“failure of compressor within 2-3 months of its purchase itself amounts to manufacturing defects- when any company stopped manufacturing particular model under these circumstances only way left is to refund of money alongwith interest- Product found to be defective at the very outset- It is always better to order for refund of amount.”

Hon’ble Supreme Court in case titled Hindustan Motors Limited and Anr. Vs. N.Shiva Kumar and Anr. (2000) 10 Supreme Court Cases, 654 has held that

 “when any company had stopped manufacturing the particular model, under those circumstances, there is no other way except to refund of money alongwith interest, compensation and cost.”

 In the instant case, the A.C in question started giving troubles within warranty period. In this regard, Hon’ble National Commission, New Delhi in  case Shirish Vs. C.S.Rahalkar (Dr) in 2010(3) CLT page 209 has held that 

“the respondent had paid Rs.32,500/- for an original Amtrex air –conditioner and not an assembled air-conditioner. The State Commission has rightly held the petitioner guilty of Unfair Trade Practice as defined under section 2(1) (i) ® of the Consumer Protection Act and consequently, directed the petitioner to compensate the respondent for the same.”

11      According to opposite party No. 1 and 3, there is problem of voltage but according to complainant there is problem in the AC in question. however, it is made clear that after purchasing the product, same is not working properly. In the present case, the complainant has lost his faith in opposite parties.

12      In view of above discussion, the present complaint is allowed and the opposite parties No. 1 and 3 are directed to refund the price of the AC in question. On receiving the above amount, the complainant will hand over the AC in question to the opposite party No. 1 and 3. The complainant is also entitled to Rs. 10,000 /- as compensation on account of harassment and mental agony and 7,500/- as litigation expenses from the opposite parties No. 1 and 3. Opposite Parties No. 1 and 3 are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @9% per annum, on the awarded amount from the date of complaint till its realisation. Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room.

Announced in Open Commission

06.06.2024