DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.120/18.08.2008 Decided on : 09.03.2009 Sh.Manoj Kumar S/o Sh.Dharampal S/o Sh.Krishan Lal, resident of New Court Road, Ward No.6, Mansa. ..... Complainant. VERSUS 1.Makha Refrigerator and Air Condition Works, Park Road, Mansa through its Partner/Proprietor. 2.M/s Whirlpool of India Limited, through its Managing Director, Corporate Office A-4, MIDC, Ranjan Gaon, Tehsil Shru, District Puna 419204. ..... Opposite Parties. Complaint under Section 12 of the Consumer Protection Act, 1986. ..... Present: Sh.S.K. Singla, Advocate, counsel for the complainant. OP No.1 exparte. Sh.Vishvpreet Garg, Advocate, counsel for O.P. No.2. Before: Sh.P.S. Dhanoa, President. Sh.Sarat Chander, Member. Smt.Neena Rani Gupta, Member. ORDER:- Sh.P.S. Dhanoa, President. This complaint has been filed, by Sh.Manoj Kumar son of Sh.Dharampal, a resident of Mansa, under Section 12 of the Consumer Protection Act, 1986 (hereinafter called the 'Act'), against Makha Refrigerator and Air Condition Works, Mansa through its Partner /Proprietor and M/s Whirlpool of India Limited, Puna through its Managing Contd........2 : 2 : Director, for giving direction to the opposite parties, for replacement of the Air conditioner purchased by him and payment of compensation, in the sum of Rs.20,000/-, along with costs in the sum of Rs.5000/-. Briefly stated, the case of the complainant is that he purchased an air conditioner of 'Whirlpool' make from OP No.1 at Mansa vide bill dated 14.06.2006. The said air conditioner was manufactured by OP No.2, as such, complainant is 'consumer' under the opposite parties and is entitled to invoke the jurisdiction of this Forum. After purchase of the air conditioner, the complainant found manufacturing defect, because of which it was not functioning properly, although the opposite parties have given guarantee for its proper functioning. The complaint has been filed within the guarantee period, as the opposite parties have failed to affect repairs of the air conditioner, instead of being approached by the complainant several times to do so. After the complainant filed a complaint before the officers of the opposite parties, their officials lifted the air conditioner, from his house on 26.6.2008, but have failed to return the same, after affecting requisite repairs, because of which complainant, has been subjected to mental and physical harassment, as such, there is deficiency in service on the part of the opposite parties. Hence this complaint. Notice of the complaint was given to the opposite parties, but OP No.1 was proceeded against exparte vide order dated 26.9.2008, but OP No.2 filed written version resisting the complaint by taking preliminary objections, that it has not been filed, within the period of limitation and complainant has not filed any complaint within the period of comprehensive warranty given by the opposite parties and period of limitation prescribed under the Act; that in case there is any defect in the compressor of the air conditioner, he may approach the answering opposite party through this Forum and same may be set right, but for remaining parts thereof, they do not fall under the period of warranty, Contd........3 : 3 : which has expired on 13.6.2008; that it is denied that complainant is entitled to the replacement of the air conditioner and payment of damages and costs; that there is no deficiency in service on their part, as such, complaint is not maintainable and liable to be dismissed with costs. On merits, the factum of purchase of air conditioner, by the complainant, is not disputed, but it is submitted that serial number of the air conditioner and that of its compressor, are not mentioned in the complaint, as such, complaint is liable to be rejected. It is also submitted, that complainant has not disclosed the specific date of complaint and cause of defect, which has occurred in his air conditioner, after date of purchase by him and he has not filed any complaint before the answering opposite party, as such, complaint is vague, false, baseless and frivolous. It is submitted that complainant, has failed to name any official of the answering opposite party, who has lifted the air conditioner. It is denied that the same has been lifted by any official of the answering opposite party. It is denied that there is any deficiency in service on the part of the answering opposite party and factum of jurisdiction of this Forum is not disputed, but rather reasserted that complaint is out of limitation. Rest of the allegations, made in the complaint, have been denied, and a prayer has been made, for dismissal of the same, with costs. On being called upon by this Forum to do so, both the parties adduced oral and documentary evidence through their respective counsel. We have heard the learned counsel, for the parties and gone through, the oral and documentary evidence, adduced on record, by them , carefully, with their kind assistance. At the outset, learned counsel for the contesting opposite party Sh.Vishvpreet Garg, Advocate, has submitted that complainant, has purchased the air conditioner on 14.6.2006 and his air conditioner has not been functioning properly from the date of its purchase, but he has filed the instant complaint on 18.8.2008. Learned counsel argued, that as per Contd........4 : 4 : Section 24A of the Act, complaint can be filed before the Consumer Forum within a period of 2 years from the date when cause of action has arisen. On the other hand, learned counsel for the complainant Sh. S.K.Singla, Advocate, has submitted that air conditioner of the complainant, has been lifted by the officials of the opposite parties, on 26.6.2008, but the same has not been returned till date, after effecting repairs, as such, complaint is within limitation. We find merit in the argument advanced by the learned counsel for the complainant, because cause of action has accrued to him, to file the complaint, on 26.6.2008, when his air conditioner was lifted by the officials of the OP No. 1 from his house for effecting repairs, although the manufacturing defect in his air conditioner, has come to his notice on the date of purchase of the air conditioner i.e. on 14.6.2006. The OP No.1, has not come forward to contest the complaint, to rebut the allegations about the lifting of his air conditioner from the house of the complainant. Therefore, affidavit filed by the complainant to that effect cannot be rejected by us. Moreover in the given situation, we are also of the opinion that there being sufficient cause for condoning the delay for filing of the complaint, as permissible under Sub Section 2 of Section 24A of the Act, introduced by Amendment Act, with effect from 18.6.1993. Therefore, we are of the considered opinion that complaint cannot be dismissed on the ground that it is barred by limitation. Learned counsel for the complainant, has argued that there is manufacturing defect in the air conditioner purchased by the complainant, because of which, it did not function properly, from the date of its purchase and opposite parties, have failed to remove the same and even to return the air conditioner after the same was lifted on 26.6.2008 and as per the admission made by the contesting opposite party, warranty period for compressor is only for one year. On the other hand, learned counsel for the contesting opposite Contd........5 : 5 : party reasserted the averments made in its written version and has argued that complainant has not examined any expert witness to prove that there was manufacturing defect in the air conditioner, as such, this fact cannot be said to have been proved merely on the basis of his affidavit. Learned counsel, has submitted that complainant has neither disclosed the nature of defect, nor serial number of the air conditioner and its compressor are not mentioned in the purchase invoice and name of the person who lifted the same has not been disclosed, as such, no liability can be fastened upon the contesting opposite party for return or replacement of the air conditioner or for payment of compensation and costs. Admittedly, air conditioner, has been purchased by the complainant from OP No.1 on 14.6.2006 vide bill No.361 Ext.C-2 and this fact is not disputed by even the contesting opposite party. As such, complaint cannot be rejected mainly on the ground that number of the air conditioner and its compressor are not mentioned in the above said document. However, complainant has not examined any expert witness to prove that his air conditioner is not functioning for a period of 2 years, after the date of its purchase before filing of the complaint, due to any manufacturing defect. He has also not produced on record any complaint or any oral evidence to prove that he ever made complaint about the defect in his air conditioner, to the opposite parties. As such, no liability can be fastened upon the OP No.2 on the ground that air conditioner manufactured by him and sold to the complainant by its dealer at Mansa did not function properly for a period of 2 years. The complainant has also not produced on record deed of guarantee issued to him by the OP No.1, who is the dealer of OP No.2. The said document is supposed to be in possession of the complainant. It is not his case that he has lost the same or that it is not traceable. Since he has withheld the material document, therefore, adverse inference has to be drawn against him that the had the said document been produced then it might have falsified his plea. Contd........6 : 6 : Therefore, we are of the view that no ground is made out for grant of any compensation against OP No.2 company situated at Pune, which is at a distant place from Mansa. As per facts borne on record, the OP No.2 has no office at Mansa, except its dealer, who sold the air conditioner to the complainant. However, as observed in the earlier part of the order, the OP No.1 has not come forward to contest the complaint, as such, affidavit of the complainant, to the effect that his air conditioner was lifted by its officials on 26.6.2008, from his residence and has not been returned after effecting repairs, has gone uncontroverted. He had no reason to file the complaint if the air conditioner was not lifted by the OP No.1 or it has been disposed by him to some other person by the complainant. For the aforesaid reasons, complaint against the OP No.2 is dismissed, whereas it is accepted against the OP No.1, directing him to return the air conditioner purchased by the complainant vide bill dated 14.6.2006 after removal of defect, within a period of one month from the date of receipt of the copy of this order. In case the air conditioner is not returned by OP No.1 within the period stipulated above, then he shall be liable to replace the same with a new air conditioner which shall be free from any defect within the period stipulated above. The OP No.1 is also directed to pay a sum of Rs.2,000/-, on account of compensation and Rs.1,000/-, on account of costs to the complainant within the same period. The copies of the order be supplied, to the parties, free of costs, as permissible, under the rules. File be indexed and consigned to record. Pronounced: 09.03.2009 Neena Rani Gupta, Sarat Chander, P.S.Dhanoa, Member. Member. President.
