Per :- Mr. Deshpande, President Place : BANDRA JUDGMENT The Opposite Party No.1 is the manufacturer of air-conditioners, whereas the Opposite Party No.2 is the authorized service centre of the Opposite Party No.1 – Manufacturing Company; and the Opposite Party No.3 is the dealer from whom the Complainant purchased the air-conditioner in question. [2] It is the case of the Complainant that he purchased window type 1.5 ton air-conditioner from the Opposite Party No.3 – Dealer; on 20/3/2005 for a consideration in sum of Rs.17,500/- and secured delivery of the air-conditioner. During the period of warranty, there had been problems with the functioning of the air-conditioner and in the month of Feb-2006, the air-conditioner stopped cooling and a complaint was lodged with the Opposite Party No.2 – Service Centre; and the Opposite Party No.2 – Service Centre; carried out the necessary repairs and redelivered the air-conditioner. Again, on 2/3/2006, there had been problem with the air-conditioner and a complaint was lodged by the Complainant, but there was no response. On 20/3/2006, the Complainant sent a letter to the Opposite Party No.1 – Company; to replace the air-conditioner. According to the Complainant, on 23/3/2006, the Opposite Party No.2 – Service Centre; collected the air-conditioner for repairs and issued a receipt to that effect. However, despite telephonic calls and reminders, the Opposite Party No.2 – Service Centre; has not returned the air-conditioner. [3] According to the Complainant, he is a cardiac patient and needs the air-conditioner for his use. By not returning the original air-conditioner or not providing a substitute thereof, the Opposite Parties are guilty of deficiency in service. The Complainant has sought refund of value of the air-conditioner in sum of Rs.17,500/- besides compensation in sum of Rs.75,000/-. [4] Pursuant to the notice of appearance issued by this Forum, the Opposite Party No.3 – Dealer; contested the complaint by filing its written version of defence and took stand that it is not liable for defects in the air-conditioner and the air-conditioner was manufactured by the Opposite Party No.1 – Company; and it was repaired by the Opposite Party No.2 – Service Centre; and also collected by the Opposite Party No.2 – Service Centre; for repairs. [5] The Opposite Party No.2 – Service Centre; in its written version, has admitted that there had been problems with the air-conditioner on 25/2/2006 as well as on 2/3/2006, as alleged in the complaint. The Opposite Party No.2 – Service Centre; also admitted that air-conditioner was collected from the Complainant for repairs and the Opposite Party No.2 – Service Centre; further added that on repairs, the said air-conditioner was returned in good working condition to the Complainant. Thus, the Opposite Party No.2 – Service Centre; denied the averments in the complaint that it has not repaired the air-conditioner in question or has not replaced the same. [6] The Complainant filed the affidavit of rejoinder to the written versions filed by the Opposite Parties. In the affidavit of rejoinder, the Complainant took stand that the Opposite Party No.2 – Service Centre; did not return the air-conditioner on repairs and it is still in custody of the Opposite Party No.2 – Service Centre. [7] Parties to the complaint proceeding filed their respective affidavits of evidence and copies of relevant documents. They also filed written notes of arguments. [8] We have gone through the pleadings, affidavits and documents as well as written notes of arguments filed by the parties. [9] We take the points that arise for our consideration and record our findings there-against as below:- Sr. No. | Points for consideration | Findings | 1. | Whether the Complainant has proved that the Opposite Parties are guilty of deficiency in service by not retuning the air-conditioner on repairs? | YES. Proved against the Opposite Parties Nos. 1 & 2 | 2. | What order? | The complaint is partly allowed |
REASONS FOR FINDINGS [10] The Complainant has produced on the record a copy of bill dtd.20/3/2005, at Exhibit-A, which shows that the Complainant purchased an air-conditioner from the Opposite Party No.3 – Dealer; for an amount in sum of Rs.17,500/-. Copy of the service report dtd.26/6/2006, Exhibit-B, shows that there was complaint of gas leak. Copy of the service report dtd.25/2/2006, Exhibit-C, reveals that air-conditioner was repaired & refitted. Copy of the service report dtd.2/3/2006, shows that working of air-conditioner was stalled. This shows that air-conditioner was not functioning. On this report, there is an endorsement, which reads as follows:- “Not satisfied with the repairs. Machine must be replaced.” [11] At Exhibit-F, there is a copy of Service Report dtd.23/3/2006, in which there is an endorsement about gas leakage problem and at the bottom of the service report, there is following endorsement:- “We are taking your a.c. to the workshop for repairs as per company’s instructions.” [12] This endorsement on the service report dtd.23/3/2006, substantially support the contention of the Complainant that the air-conditioner in question was taken into custody by the Opposite Party No.2 – Service Centre; for repairs, but it was not returned & refitted. [13] Now, the Opposite Party No.2 – Service Centre; in its written version of defence, has taken stand that air-conditioner in question was taken for repairs on 23/3/2006 and on repairs, it was reinstalled/ refitted. Thus, the Opposite Party No.2 – Service Centre; admit that on 23/3/2006, the air-conditioner in question was collected from the Complainant for repairs, but has taken additional stand that it was returned & refitted at the house of the Complainant. [14] In the written notes of arguments, the Opposite Party No.2 – Service Centre; has highlighted the fact that after 23/3/2006, the Complainant had not written or sent any letter or communication to the Opposite Parties Nos.1 & 2 for return of air-conditioner on repairs. The argument in the written notes of arguments is on the logic that in the normal course of events, a customer placed in such situation, would have written or sent some communication reminding the service centre to give delivery of the air-conditioner on repairs. Thus, the Opposite Party No.2 – Service Centre; is harping upon absence of any communication post 23/3/20006 from the Complainant about return of air-conditioner. [15] Initially, we were impressed by this argument, but on deeper probe, we find that while collecting the air-conditioner from the Complainant for repairs on 23/3/2006, the Opposite Party No.2 – Service Centre; had given an endorsement on the service report that the air-conditioner was being taken for repairs. By the same analogy, one would have expected from the Opposite Party No.2 – Service Centre; or its representative to obtain a receipt from the Complainant regarding return of air-conditioner. The Opposite Party No.2 – Service Centre; has not produced single piece of document to substantiate its stand that air-conditioner was returned to the Complainant on repairs. [16] Added to this, the Complainant, by filing an affidavit, has stated on an oath that the Opposite Party No.2 – Service Centre; did not return the air-conditioner on repairs and it was still in custody of the Opposite Party No.2 – Service Centre. The Opposite Party No.2 – Service Centre; in its written version of defence as well as written notes of arguments, tried to offer an explanation to the effect that documents regarding replacement of the air-conditioner on repairs were misplaced and those documents could not be traced out. Assuming that being old record, those documents are not traceable, but the Opposite Party No.2 – Service Centre; could have filed an affidavit of concerned member of staff who had gone to the Complainant with the air-conditioner to reinstall the same on repairs. Thus, affidavit of evidence of the Complainant regarding not returning of air-conditioner by the Opposite Party No.2 – Service Centre; has remained un-rebutted. No effort has been made by the Opposite Party No.2 – Service Centre; to lead some evidence to substantiate its stand that on repairs, the air-conditioner was returned to the Complainant. [17] In view of above, we hold that the Opposite Party No.2 – Service Centre; failed to establish that on repairs, the air-conditioner was reinstalled at the house of the Complainant. Since the air-conditioner in question was taken into custody for repairs by the Opposite Party No.2 – Service Centre; at the behest of the Opposite Party No.1 – Company; both, the Opposite Party No.1 – Company; as well as the Opposite Party No.2 – Service Centre; would be jointly & severally liable for replacement of the old air-conditioner by providing a new air-conditioner of same make & model. [18] The Complainant has also sought compensation in sum of Rs.75,000/-, but in view of the facts of the case, we are not inclined to grant that relief. We find that direction to the Opposite Parties Nos.1 & 2 to provide a new air-conditioner to the Complainant of the same make & model would meet the ends of justice. With this, we proceed to pass the order as below:- ORDER The complaint is partly allowed. The Opposite Parties Nos.1 & 2 are hereby jointly & severally directed to provide to the Complainant, a window type 1.5 ton air-conditioner of the same make & model as per bill dtd.20/March/2005. The Opposite Parties Nos.1 & 2 shall comply with the foregoing order within a period of eight weeks from the date of receipt of copy of this order failing which, they shall also be liable to pay to the Complainant, an amount in sum of Rs.100/- per day, by way of penalty, as from the date of expiry of stipulated period of eight weeks till the foregoing order is fully complied with. In the peculiar circumstances of case, there shall be no order as to compensation and costs. The complaint, as against the Opposite Party No.3, stands dismissed. Parties shall be informed accordingly, by sending certified copies of this order.
| | [HONABLE MRS. Mrs.DEEPA BIDNURKAR] Member[HONABLE MR. Mr. J. L. Deshpande] PRESIDENT[HONABLE MR. MR.V.G.JOSHI] Member | | 
