PER:
Varinder Pal Singh Saini, Member
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 is self employed and for installing an AC at his house, he purchased one AC unit having model No. LG Split Inverter AC LS-Q18SWZA manufactured by the opposite party No. 1 from the opposite party No. 2 vide invoice No. 1140 dated 26.6.2020 by paying Rs. 42,300/-. At the time of selling of the above mentioned AC Unit, the opposite party No. 2 assured the complainant this unit provides tremendous cooling and the opposite party No. 1 who is the manufacturer of this unit provides guarantee of five years on the unit and in case of any complaint etc. the opposite parties will replace the defective unit with a new one immediately and otherwise will provide immediate service to the customer i.e. the complainant on his request. The representatives of the opposite party No. 1 installed the above mentioned AC unit at the above mentioned address of the complainant but immediately, after installation, the complainant noticed that the unit is not giving proper cooling and as such, was not working efficiently and as such told the representative of the opposite parties that the unit is not working properly but they told the complainant that with the passage of time its efficiency will increase that there is no need to worry about it so the complainant believed the words of the opposite parties representatives. Inspite of the passage of time and use of the above said AC unit the performance of the unit did not improve and as such the cooling given by the unit was even below the norms levels as such the complainant approached the opposite party No. 1 by lodging online complaint and as such, the opposite party No. 1 sent its service center experts who tried to find the defect in the AC unit for improving its performance but inspite of their best efforts the AC unit did not work properly. The complainant lodged several complaints with the opposite parties online regarding his grievance although the opposite party No. 1 sent its service centre provides for providing service but all in vain and hence the output of the AC unit did not improved. In total the complainant lodged about 10 complaints till date but he has not been satisfied by the opposite party No. 1 and as such the AC unit mentioned above is not working as per assurance and it was told by the service centre employee that there is a manufacturing defect in the unit and as such same could not be rectified so that the complainant approached opposite party No. 2 for replacing the above said defective unit with a new one but he flatly refused to do so nor he returned the price paid by the complainant to this party for purchasing the unit and told the complainant that only opposite party No. 1 is responsible for such like defects in the products and the complainant approached the opposite party No. 1 only. So complainant approached the opposite party No. 1 for replacing the defective units for new one or for getting refund the price money paid by him to the opposite party no. 2 but inspite of several requests nothing was done by the opposite party No. 1 regarding it. The complainant has prayed the following relieves.
- The opposite parties may kindly be directed to immediately replace the above mentioned defective AC with the new unit or return the price of the unit amounting to Rs. 42,300/- to the complainant.
- The opposite parties may kindly be directed to pay compensation of Rs. 30,000/- alongwith litigation expenses of Rs. 10,000/- to the complainant.
Alongwith the complaint, the complainant has placed on record his affidavit Ex. C-1, self attested copy of invoice dated 26.6.2020 Ex. C-2, Self attested copy of Adhar Card Ex. C-3, Self attested copy of SMS messages Ex. C-4.
2 Notice of this complaint was sent to the opposite parties and opposite parties appeared through counsel and filed written version by interalia pleadings that the complainant has got no cause of action against the opposite parties, the present complaint filed by the complainant is an abuse of process of law and has filed the false and frivolous complaint and the same is liable to be dismissed. The complaint involves complex question of law and fact, as such this commission does not have the jurisdiction to try and entertain the present complaint, the complaint merits dismissal on this score only. The complaint is not in proper form and bad for non-joinder of necessary parties and has been left for reasons better known to the complainant, as such, the complaint merits dismissal on this score only. The complainant was not given any guarantee of any kind only warranty obligations were assured as per warranty card given to the complainant which has been mischievously cancelled. As per warranty obligations the complaint was to be lodged with the authorised service centre and not to any other party. The product was installed with proper satisfaction of the complainant and its family members and there was no problem or any grievance was lodged by the complainant ever. The opposite parties have denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version, the opposite parties have placed on record affidavit of Akhil Kumar Area Service Head.
3 We have heard the Ld. counsels for the complainant and opposite parties and have carefully gone through the record placed on the file.
4 Ld. counsel for the complainant contended that the complainant has purchased one Split Inverter AC LS-Q18XZA from the opposite party No. 1 vide invoice No. 1140 dated 26.6.2020 (Ex. C-2) for Rs. 42,300/- Immediately after installation, the complainant noticed that the unit is not giving proper cooling. The complainant lodged online complaints and opposite party No. 1 sent its service centre experts who tried to find the defect in the AC unit for improving its performance but inspite of their best efforts the AC unit did not work properly. The complainant lodged several complaints with the opposite parties on line regarding his grievance although the opposite party No. 1 sent its service centre providers for providing service but all in vain and output of AC did not improve. In total complainant lodged about 10 complaints but AC unit is not working properly. It was told by the service centre employees that there is a manufacturing defect in the unit and as such he could not be rectified, therefore the complainant approached the opposite party No. 2 for its replacement with a new one but neither they replaced the AC nor returned the price of the same and prayed that the present complaint be allowed.
5 On the other hands, Ld. counsel for the opposite parties contended that the complaint involves complex question of law and fact, as such this commission does not have the jurisdiction to try and entertain the present complaint, the complaint merits dismissal on this score only. The complaint is not in proper form and bad for non-joinder of necessary parties and has been left for reasons better known to the complainant, as such, the complaint merits dismissal on this score only. The complainant was not given any guarantee of any kind only warranty obligations were assured as per warranty card given to the complainant which has been mischievously cancelled. As per warranty obligations the complaint was to be lodged with the authorised service centre and not to any other party. The product was installed with proper satisfaction of the complainant and its family members and there was no problem or any grievance was lodged by the complainant ever and prayed that the present complaint be dismissed.
6 We have carefully gone through the rival contentions of the parties.
7 It is not disputed that the complainant has purchased the AC unit in question from the opposite party No.1 vide Ex. C-2. After purchasing the said AC same was started giving problem in the same and the complainant has lodged online complaints to the opposite parties and complaints on toll free Number of the opposite parties are Ex. C-4. It shows that from the very beginning the said AC started giving problems. 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.
8 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.
9 It is proved on record that the complainant is approaching the opposite parties several times from the very start and the complaints Ex. C-4 show that there is some problem in the AC Unit in question from the very beginning. The record shows that the complainant has purchased the AC Unit on 26.6.2020 and made the complaint to the opposite party again and again. It all shows that there is some inherit defect in the AC Unit in question. The perusal of record shows that defect in the product in question occurred 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.”
10 The opposite party has taken the objection that the present complaint is bad for non-joinder of necessary parties and Service Center of the opposite party is necessary party to the present complaint but we are not agree with the same because the complainant made the complaints to the toll free Number of the opposite parties and they visited the house of the complainant for rectifying the defect in the AC unit. The complainant has made the party to seller and company of the product as such there is no necessity to make Service center of the opposite party as party to the present complaint.
11 In view of above discussion, the present complaint is allowed and the opposite parties is directed to replace the defective AC unit in question with new AC unit of same make and model or to refund the price of AC Unit to the complainant. The complainant is also entitled to Rs. 3,000/- as compensation on account of harassment and mental agony and Rs. 2,500/- as litigation expenses from the opposite parties. Opposite Parties 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. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission . Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room.
Announced in Open Commission
16.05.2024
