Order-16.
Date-07/12/2016.
This is an application u/s.12 of the C.P. Act, 1986.
The case of the complainant in short is that the O.Ps.-1 and 2 happen to be manufacturing unit, O.P.-3 is a distributing / selling agency and O.P.-4 is the authorized service centre of O.P.-1. The complainant purchased an Air Conditioner (1 ton) manufactured by O.P.-1 & 2 and the complainant purchased the subject Air Conditioner from the shop of O.P.-3 by exchanging an old unit and paying an amount of Rs.18,000/- on exchange on 03/11/2015. As per the terms and conditions, the installation for the said A.C. machine will be free of cost and the authorized service centre being O.P.-4 will come to the complainant’s premises and install the same. One mechanic namely Azad came to the complainant’s premises on 13/01/2016 and demanded installation charge and the complainant refused to pay installation charge. The complainant informed the matter to the O.Ps. vide a letter dated 18/01/2016. On 23/01/2016 O.P.-4 sent a mechanic namely Maidul Islam for installation of the said machine and he gave an invoice amounting to Rs.2500/- for the installation of the AC but after removing the machine from packet, it was found that Air outlet fan of the machine was in broken condition. As a result, the machine could not be properly installed and was not running. The said mechanic assured the complainant that the machine would be replaced very shortly but in spite of passing of time it was not done. The complainant sent notice again dated 10/02/2016 to O.Ps.-1 and 2 but to no good. The complainant has alleged deficiency of service against the O.Ps. Hence this case.
O.Ps.-1 and 2 have contested the case by filing a W.V. contending inter alia that the case is not maintainable in fact and in law. It is stated that the complainant had registered its first complain with the answering O.Ps. on 12/01/2016. When the service technician visited the complainant’s house for attending the call the complainant had instructed the service technician to remove the already installed air conditioner and to install new conditioner in the same place. The service technician also informed the complainant that he is not authorized to do the same and the complainant had to provide free space for installation of the new air conditioner. He also mentioned to the complainant that the complainant’s installation was free but he has to pay for the materials which will be used for installation like copper pipe, drain pipe etc. But the complainant objected to it. The technician thereafter left the complainant’s premises. The complainant contacted the answering O.P. on 16/02/2016 requesting for installation for his A.C. Machine. After much persuasion the complainant finally agreed to make payment of the cost to be incurred on account of materials used for the installation. Thereafter, when the technician opened the packaging it was found that the outdoor fan was in broken condition. The technician clarified to the complainant that the A.C. Machine is under warranty and hence the complainant is not required to pay any penny for the same. The technician, however, suo moto registered the complain with the answering O.P. Thereafter the technician contacted the complainant several times in regard to take appointment for changing the broken parts. The complainant finally on 25/01/2016 allowed the technician to install the A.C. Machine after removing the defect as mentioned above. It is stated that the complainant due to his own act had delayed the installation of the A.C. Machine. This O.P. has denied deficiency of service and had prayed for dismissal of the case.
O.P.-3 has also filed W.V. contending inter alia that the case is frivolous, speculative and is not maintainable in law. It is stated that O.P.-4 sent one mechanic for installation of the A.C. Machine and the installation of the A.C. Machine is the duty of the service centre. It is also stated that O.P.-3 is not
liable for any alleged defect or fault of the A.C. machine. It is stated that O.P.-3 is in no way liable either for repairing of the A.C. Machine or for replacement of the same. This O.P. has prayed for dismissal of the case against it.
O.P.-4 has not contested the case and the case has proceeded ex-parte against O.P.-4.
Point for Decision
- Whether the O.Ps. are deficient in rendering services to the complainant?
- Whether the subject A.C. Machine was defective ?
- Whether the complainant is entitled to get the relief as prayed for ?
Decision with Reasons
All the points are taken up together for the sake of brevity and convenience.
We have perused the documents on record namely Photostat copy of purchase tax invoice, Xerox copy of the letter dated 18/01/2016 from the complainant to O.P.-1 and 2, Xerox copy of ‘Free A.C. Standard Installation Coupon’, Xerox copy of invoice of materials of Rs.2500/-, Xerox copy of letters dated 10/02/2016 by the complainant to O.P.-1 and 2 and other documents on record.
It appears that the complainant purchased the subject Air Conditioner from the shop of O.P.-3 on 03/11/2015 against purchase invoice No.BH/SA/1516/12592 at an exchange price of Rs.18,000/-. We also find that as per terms and conditions in between the parties, the installation of the A.C. was free of cost and authorized service centre being O.P.-4 will install the same. It appears that after a gap of two months one mechanic namely Azad from the service centre came to the house of complainant and also demanded installation charge and the complainant refused to pay any such charge and as such the mechanic Azad left off. It appears that on 23/01/2016 another mechanic namely Maidul Islam came for installation and submitted a bill amounting to Rs.2500/- for installation for the A.C. Machine as the price of materials like copper pipe, extra cable, pipe clamp etc. However, after removing the machine from the sealed pack condition, it was found that the air outlet fan of the machine was in broken condition. The machine was as such could not function as the air outlet fan of the machine was broken. We also find that the visiting technician namely Sk. Maidul Islam who went for installation also gave a note on the ‘Free AC Standard Installation Coupon’ that the machine was not functioning. It is stated by the complainant that the said mechanic assured the complainant that they would come and replace the machine. The complainant alleged in spite of passing of time it was not done.
So the fact remains that a defective AC Machine was supplied to the complainant- its air outlet fan was in broken condition. It also appears that O.Ps. have not replaced the same. It is stated by O.P.-3 that the manufacturer is liable and responsible for any defect as alleged by the complainant. We think that O.P.-3 being the dealer cannot evade the responsibility when a defective product was supplied from its shop to the complainant. We also find that O.P.-1 and 2 were informed about the defective product from the end of the complainant by letters dated 18/01/2016 and 10/020/2016 but they slept over the matter and did not replace it. We find that a mechanic was sent by O.P.-4 but O.P.-4 also did not take any step to inform the manufacturer about the defective AC Machine supplied to the complainant. O.P.-4 adopted dilly dally method to avoid the actual remedy- the actual remedy in such case should be replacement of the defective set. O.P.-4 on the other and, tried to repair the set. It can never be accepted that the complainant on purchasing a brand new AC Machine would get it repaired and be happy with the repaired AC Machine. It appears that the complainant received the sealed product from the manufacturer and it was delivered to the complainant by the Dealer in sealed condition and as such we think that the complainant has no contributory negligence or interference in the matter. It was found that the item was defective inside the sealed packet when it was opened.
We think that the O.Ps. have jointly and severally put up a gesture of deficiency of service and they have also shown non-cooperation with the complainant when complainant has no fault in the matter. We think that the defective subject AC Machine need to be replaced by a brand new set immediately. It also appears that the complainant suffered mental agony and trauma for the inaction on the part of the O.Ps.
In result, the case succeeds.
Hence,
Ordered
That the case be and the same is allowed on contest against O.P.s-1 to 3 and ex-parte against O.P.-4.
O.Ps.-1 to 3 are jointly severally directed to replace the subject defective AC Machine by a new one of similar description on similar terms and conditions of free installation with new warranty w.e.f. the date of delivery of the machine to the complainant within 15 days from the date of this order.
O.Ps. are also jointly and severally directed to pay compensation to the tune of Rs.25,000/- to the complainant apart from litigation cost of Rs.10,000/- within the said stipulated period.
Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act and in that case OP shall be liable to pay penal damage at the rate ofRs.5,000/- per month to be paid to this Forum till full and final satisfaction of the decree.
