DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016

Case No.237/2018

R. L. Bhagat

1093/1-30, Church Compound,

111rd Floor, Ward No.1, Mehraul,

New Delhi-110030                                                       ….Complainant

Versus

1.      King Electronics,

          Shop No.1, LGF, New Market,

          Malviya Nagar, New Delhi-110030

2.      Lloyd Electronics & Engineering Ltd.,

          159, Okhla Industrial Estate,

          Phase-III, New Delhi-110020

          Also at:

          Industrial Area, Plot No.2, Kalkaji,

          New Delhi-110059                                        ….Opposite Parties

                                                Date of Institution        :  10.08.2018     Date of Order                : 11.02.2020

Coram:

Ms. Rekha Rani, President

Ms. Kiran Kaushal, Member

Ms. Kiran Kaushal, Member

ORDER

1. Briefly put the facts of the complaint as stated by the complainant  are that the complainant  purchased an AC from M/s King Electronics (OP No.1) manufactured by Lloyd Electronics & Engineering Ltd. (OP No.2) on 17/05/18 by paying the consideration of Rs.34,000/-.
   1. It is averred by the complainant that AC from day one was not functioning properly as it was defective. Since the date of purchase the complainant made various complaints to OP regarding the AC. It is stated that the technicians of the company repaired the AC on various occasions. Gas leakage was also detected and gas was filled on chargeable basis but even then the AC did not work properly and there was no cooling at all.
   2. It is next averred that OP No.1 did not give any warranty card alongwith AC. Infact the complainant was told that he could download the App of Lloyd Company and his warranty and registration will be done. However, when the complainant  tried doing so he got to know that in the AC list of the company the model purchased by the complainant  was not available. Therefore he could not register. It is further stated that the complainant had to pay Rs.1000/- as installation charges to OP No.1 for getting the AC installed, whereas installation was free from the company. It is next averred that despite making numerous complaints his problem was not redressed. Thus, aggrieved, the complainant prays for direction to OPs to refund the payment of Rs.34,000/- alongwith interest, additionally OP be directed to pay Rs.1,50,000/- towards compensation and Rs.20,000/- towards litigation expenses.
2. OP-1 though put an appearance on  15/11/18 but did not  resist the complaint.  Therefore, averments made by the complainant qua OP-1 have remained uncontroverted and unchallenged. Hence, there is no reason to disbelieve the version of the complainant.
3. OP No.2 resisted the complaint and filed written statement wherein inter-alia it is stated that the present complaint is not maintainable on the ground that the product in question is not under warranty. It is submitted that as per the warranty terms and conditions of the product, the product is covered under the warranty if the installation of AC is done by OP No.2 but in the present case the product is installed by the distributor/third party, therefore it is not covered under the warranty terms and conditions.

3.1    It is submitted that the business of all consumer durables of Lloyd Electronics & Engineering Ltd. i.e. OP No.2 herein has been taken over by Havells India Ltd. After execution of BTA between OP No.2 and Havells India Ltd., Havells India Ltd is  authorized to pursue and initiate all the consumer cases of OP No.2 of its own and on behalf of OP No.2. In view of this Havells India Ltd. is also authorized to pursue the present case. Copy of the press release is annexed and marked as Annexure R2/1.

3.2    It is denied by OP No.2 that the complainant has made 19-20 complaints. However, it is submitted that the complaints made were duly resolved by OP despite of the fact that the product was not under warranty. OP provided services to the complainant free of cost. It is further submitted that OP attended the proceedings at the Mediation and Conciliation Centre but as the complainant demanded for replacement of the AC with a new AC which was not possible as per the terms and conditions hence the mediation failed.  OP has relied on a judgment passed by the Hon’ble National Commission in the matter of Tata Engineering & Locomotive Co. Ltd. Vs. M. Moosa reported as 1994 (3) CPR 395,  wherein it is held as:

          “The Manufacturer cannot be  ordered to replace the vehicle or refund its price merely because some defect appears which can be rectified or defective part can be replaced.

3.3    It is next denied that the model number of the aforesaid AC was not in the list of the models mentioned in the application of OP.  Denying any deficiency in service on its part, it is prayed that the complaint be dismissed with heavy cost. 

4.      Rejoinder and evidence by way of affidavit has been filed by the complainant reiterating all the averments made in the complaint.  Affidavit of Shri S.R. Arora, working as Manager Legal has been filed in evidence on behalf of OP-2. Written arguments have been filed on behalf of OP-2.

5.      Submissions made on behalf of the parties are heard and record is perused carefully.

6.      Admittedly, the complainant purchased an AC from OP No.1 which is manufactured by OP No.2.  Complainant in support of his case has annexed invoice dated 17.05.18 which shows that the complainant had paid Rs.34,000/- to OP No.1 for the purchase of a Lloyd SAC 1.5 TR 3 Star AC. The complainant  has next annexed 6 job sheets dated 21.05.18, 23.05.18, 11.07.18, 19.07.18, 29.07.18 and .09.08.18 in support of his case which we mark as Mark-A, Mark-B, Mark-C, Mark-D, Mark-E and Mark-F respectively.

7.      At the outset it is noticed that the complainant purchased the AC on 17.05.18 and the first complaint was made by him on 21.05.18 i.e. after 3 days of the purchase of the product. Thereafter till 09.08.18 number of complaints were made but the complainant was not satisfied with the service of OP. The ‘Customer Remarks’ is mentioned in the job sheet dated 09/08/18 are as follows -

                   “So many complaints has already attended by Engineers from the day one. Please change my product please.”

There is no denying the fact that the product purchased by the complainant was not functioning properly from the very beginning of the purchase of the product.

8.      OP-2 has taken its stand in written statement that the product is covered under warranty only if the installation of AC is done by OP No.2 and in case the product is installed by distributor/third party then it is not covered under warranty terms and conditions. The relevant exclusion clause of warranty terms and conditions is being reproduced under:

                    “This warranty shall stand automatically terminated in the event of the said unit being serviced, repaired, installed, de-installed, reinstalled, or otherwise attended to by any person or organization or agency or by the said purchaser himself other than the authorized representative of the company.

It is complainant’s case that but for the invoice the complainant was never provided any warranty card or any terms and conditions mentioned above. Further in the rejoinder the complainant clarifies that the distributor or the retailer did not inform him that the AC was to be installed by the representative of OP No.2. Rather the distributor installed the AC and also took Rs.1,000/- as charges for installation which was to be  installed free of cost by OP No.2. OP No.2 in its pleading is silent about the fact whether OP No.1 is the authorized dealer of OP No.2 or not. OP No.2 is also silent on the fact as to why the warranty terms and conditions were not supplied to the complainant at the time of purchase of the product. Therefore the defense taken by OP-2 is not established.

9.      We are alive to the legal position that whatever can be repaired cannot be ordered to be replaced. But in the facts of the present case, despite repeated visits of the complainant the product could not be repaired.   

10.    Therefore in view of the discussion above, this Forum is of the opinion that OP No.1 and OP No.2 are found to be deficient in service and are held jointly and severally liable. OPs are directed to refund Rs.34,000/-, the price of the product to the complainant with 8% interest from the date of filing of the complaint till realization within 45 days of receipt of copy this order, on receiving the said amount complainant is directed to return the AC to the OPs. Additionally OPs are directed to pay Rs.7,500/- towards compensation for harassment and litigation cost. Failing which OPs shall become liable to pay interest @ 10% p.a. on the amount of Rs.3,4000/- from the date of filing of the complaint till realization.

          Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations.  Thereafter file be consigned to record room.

Announced on 11.02.20