Chandigarh

StateCommission

A/58/2015

M/s Daikin Airconditioning India Pvt. Ltd, - Complainant(s)

Versus

Mandeep Kaur - Opp.Party(s)

Ramnik Gupta,

25 Mar 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

UNION TERRITORY, CHANDIGARH

 

First Appeal No.	58 of 2015
Date of Institution	09.03.2015
Date of Decision	25.03.2015

M/s Daikin Airconditioning India Private Limited, Registered Office 12^th floor, Building No.9, Tower-A, DLF Cyber City, DLF Phase 3, Gurgaon, Haryana.

                                …..Appellant/Opposite Party No.3

                                Versus

Mandeep Kaur w/o Sh.Iqbal Singh Saini, r/o #1596, Sector 70, Mohali, Punjab.

.…..Respondent/Complainant.

BEFORE:    JUSTICE SHAM SUNDER (RETD.), PRESIDENT

                SH. DEV RAJ, MEMBER

                MRS. PADMA PANDEY, MEMBER

 

Argued by: Sh.Ramnik Gupta, Advocate for the appellant.

 

PER PADMA PANDEY, MEMBER

                This appeal is directed against the order dated 14.01.2015, rendered by District Consumer Disputes Redressal Forum-I, UT, Chandigarh (hereinafter to be called as the District Forum only), vide which, it allowed Consumer Complaint No.48 of 2014, filed by the complainant, with the following directions:-

 

“12. In the light of above observations, we are of the concerted view that the Opposite Parties are found deficient in giving proper service to the complainant. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Parties, and the same is allowed, qua them. The Opposite Parties are directed, jointly and severally, to:-

 

[a]     To refund Rs.42,500/- to the Complainant being the invoice price of the Air Conditioner;

 

[b]     To pay Rs.15,000/-on account of deficiency in service and causing mental and physical harassment to the Complainant; 

 

[C]     To pay Rs.10,000/- as cost of litigation;

 

13.       The above said order shall be complied within 30 days of its receipt by the Opposite Parties; thereafter, they shall be liable for an interest @12% per annum on the amount mentioned in sub-para [a] of Para 12 above from the date of receipt, till it is paid. The compensation amount as per sub-para [b] of para 12 above, shall carry interest @12% per annum from the date of institution of this complaint, till it is paid, apart from costs of litigation of Rs.10,000/-. “

 

2.             The facts, in brief, are that the complainant purchased a Daikin Split Air Conditioner (A.C.) being model No.FTKV50NRV16 on 28.5.2013 from Opposite Party No.1. (M/s Modern Electronics) for a sum of Rs.42,500/- vide bill No.000176 dated 28.05.2013 (Annexure C-1). It was stated that the product was installed by the representative of Opposite Party No.2 on 29.05.2013 and issued a receipt of service report/commissioning report vide complaint No.2452 dated 29.05.2013 (Annexure C-2). It was further stated that the complainant started encountering problems within 3 months from the date of purchase of the said A.C. Thereafter, the complainant lodged a complaint regarding the cooling problem with Opposite Party No.2 on 07.08.2013, which was attended on 08.08.2013 and only the PCB was changed and no steps were taken to fix the main problem. It was further stated that the representative of Opposite Party No.2 left without monitoring the cooling effect, against which, the complaint was lodged by the complainant.

3.             It was further stated that the complainant registered another complaint with Opposite Party No.2 on 10.08.2013 and again the representative of Opposite Party No.2 only filled up the gas and did not reach any conclusion as to what the problem was and no service receipt was handed over to her. It was further stated that the representative of Opposite Party No.2 confirmed during the last visit that the matter would be taken  care of by some senior representative and after waiting for 4 days, nobody from the office of Opposite Party No.2 turned up. The complainant made another call to Opposite Party No.2 on 14.08.2013, which was answered by Mr.Manoj, who confirmed that somebody from the office of Opposite Party no.2 would come by the evening or next day, to get the problem fixed and he also ensured her that special attention would be given to their problem and registered the complaint as a “special case” but no one turned up to fix the problem with the A.C. Thereafter, the complainant again called Opposite Party No.2 on 21.08.2013 and was given another complaint reference No.IXC130807674. It was further stated that the previous complaint was closed by Opposite Party No.2 without any repairs/satisfaction. It was further stated that the representative of Opposite Party No.2 visited with some senior representative Mr.Ved Prakash and filled up the gas 2^nd time but again the problem was not solved and there was no change in the cooling levels. The complainant again called up and registered a complaint on 24.8.2013 and was provided a reference No.IXC130809457. Again a visit was fixed for 26.8.2013 at 7.00 PM, but nobody turned up. It was further stated that on receiving a call from Opposite Party No.3 on 27.08.2013, the complainant briefed the whole matter, but to no avail.  Thereafter, the complainant again made a complaint on 04.09.2013, upon which, she received a call from Opposite Party No.2 confirming that the outdoor unit would be replaced on 07.09.2013, but this time again, nobody turned up. The complainant again followed up on 09.09.2013 with the Customer Care to know about the replacement, but to no avail. It was further stated that on account of poor services, negligence and casual approach of the Opposite Parties, the complainant was forced to buy another A.C. of some other brand. It was further stated that the complainant and her family were made to suffer and did not receive the cooling facility, which was the top most requirement in the peak months of summer.  It was further stated that the Opposite Parties were deficient, in rendering service, as also, indulged into unfair trade practice.  When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the “Act” only), was filed.

4.             Notice of the complaint was sent to the Opposite Parties. Initially, Opposite Party No.1 appeared through Sh.Rajesh Kumar, Agent while Opposite Party No.2 appeared through Sh. Balwinder Singh, Proprietor, but subsequently they did not appear and, as such, were proceeded against exparte vide order dated 14.05.2014. 

5.             In their written statement, Opposite Parties No.3 and 4, stated that the registered address of Daikin Airconditioning India Private Limited is at F 25/2 Okhla, Industrial Area, Phase II, Delhi 110020, and, as such, no cause of action or part of cause of action had arisen within the territorial jurisdiction of the District Forum.  It was further stated that the complainant had continuously used the A.C. for three months of hot summer, without any complaint, which established that there was no manufacturing defect or fault in the A.C. unit. It was further stated that as a customer friendly step, the replying Opposite Parties came forward through their authorized representative to change the PCB of the A.C. so as to pacify the complainant and when the same was changed, she was satisfied and signed the service report dated 08.08.2013 (Annexure-2). Thereafter, when the Service Engineer of replying Opposite Parties again visited the site of the complainant, they did not find anything wrong with the machine, but she started asking to charge the A.C. with gas, even when there was no gas leakage and the same was done free of charge.

6.             It was further stated that the complaint of the complainant was duly attended to by the representatives of the replying Opposite Parties and every time, they did not find any fault in the machine. It was further stated that every time, the complainant made a call to the call centre of the replying Opposite Parties and she insisted upon the refund of money, which was not paid. It was denied that no action was taken by the replying Opposite Parties in relation to the complaints of the complainant. It was further stated that when the complaint was lodged by the complainant, Opposite Party No.3 took all possible measures to talk to her and to resolve the issue. As a pure gesture of goodwill, Opposite Party No.3 attended the complaint calls of the complainant, and even offered to replace the Outdoor Unit, free of cost, but she was adamant for the refund of money. It was further stated that when the outdoor unit was taken at the premises of the complainant for replacement on 13.09.2013, after confirmation from her, she did not accept the delivery of the same and did not allow their representative to install the new outdoor unit. It was further stated that the complainant was not the appropriate person to determine any defect or so called manufacturing defect, as it required a specialized technical knowledge, which District Forum could refer to appropriate agency to determine at the cost of the complainant. It was further stated that the replying Opposite Parties were neither deficient, in rendering service nor indulged into unfair trade practice.

7.             The complainant, filed replication to the written statement filed by Opposite Parties No.3 and 4,                                                                   wherein, she reiterated all the averments, contained in the complaint, and refuted those, contained in the written version of Opposite Parties No.3 and 4.   

8.             The parties led evidence, in support of his case.

9.             After hearing the Counsel for the complainant, Counsel for Opposite Parties No.3 and 4, and, on going through the evidence, and record of the case, the District Forum, allowed the complaint, as stated above. 

10.            Feeling aggrieved, the instant appeal, has been filed by the appellant (M/s Daikin Airconditioning India Private Limited).

11.            We have heard the Counsel for the appellant, and have gone through the evidence and record of the case, carefully. 

12.            The Counsel for the appellant submitted that the District Forum had no territorial jurisdiction to entertain and decide the complaint, as the registered office of the Company is situated at Delhi and as per Clause 17 of the warranty terms “Courts in Delhi shall have exclusive jurisdiction in the event of any dispute.” He further submitted that the District Forum failed to appreciate the facts that the complainant gave a casual statement in her complaint regarding the quality of the AC units or the same being defective without any substantial or documentary proof in support of her contention. He further submitted that the statutory provision provided under Section 13(1)(c)(g) of the Consumer Protection Act, 1986 for referring the defective goods to the appropriate laboratory at the cost of the complainant, was required to be followed by the District Forum at the cost and expense of the complainant. He further submitted that the order of the District Forum is liable to be set aside on the ground that the District Forum without any expert opinion, technical findings and evidence regarding manufacturing defect under Section 13(1)(c) to (g), committed mistake by reaching the conclusion that AC sufferred from the defect of low cooling and directing the Opposite Parties to refund the cost of the AC. He further submitted that the District Forum failed to appreciate that there was no contract of guarantee but only the contract of warranty at the time of selling the subject goods, as per the Sales of Goods Act. He further submitted that in view of the abovesaid warranty terms the product sold by the manufacturers was not subject to replacement and the appellant, in the present case, in compliance with the contract of warranty duly attended the complaints of the complainant and also offered to rectify the leakage, refilling of gas, which was not on account of any inherent manufacturing defect in the AC. He further submitted that the complainant approached the appellant by calling upon the Customer Care number, and the representative immediately attended the said complaint of the complainant, replaced PCB, gas top and even offered ODU replacement in order to satisfy the complainant as general Policy, even though there was no shortcoming in the product of the appellant Company. He further submitted that the officials of the appellant had taken all possible measures to talk to the complainant and as pure gesture of goodwill even offered her for replacement of the entire unit subject to the approvals from the Company, which required sometime for obtaining official approval but she refused the said offer and insisted for the refund of the amount of the AC unit. He further submitted that the complainant had uninterruptedly used the AC unit for three months of hot summers (May, June & July) without any complaint, which clearly established that there was no manufacturing defect or fault in the AC unit, as alleged by her. He prayed for setting aside the impugned order.    

13.            After giving our thoughtful consideration, to the submissions, raised by the Counsel for the appellant (M/s Daikin Airconditioning India Private Limited), and the evidence, on record, we are of the considered opinion, that the appeal is liable to be dismissed, at the preliminary stage, with some clarification, for the reasons to be recorded, hereinafter.

14.            According to Section 11 of the Act, the consumer complaint could be filed, by the complainant, before the District Consumer Disputes Redressal Forum, within the territorial Jurisdiction, whereof, a part of cause of action arose to her. In the instant case, a bare perusal of Annexure C-1 clearly reveals that the complainant purchased Daikin Split AC from Modern Electronics (Opposite Party No.1), which is the authorized dealer of Daikin Airconditioning, situated at SCO No.13A, Madhya Marg, Sector 7-C, Chandigarh. It is clearly revealed from Annexure C-2 that Sant Enterprises (Opposite Party No.2), Authorised Service Centre, is situated at Shop No.71-72, Main Market, Badheri, Sector 41-D, Chandigarh. It means that a part of cause of action arose to the complainant, within the territorial Jurisdiction of the District Forum Chandigarh. Therefore, the Company is equally liable for any act and conduct or omission or commission on the part of its authorised dealer. The District Forum, Chandigarh had, therefore, territorial jurisdiction to entertain and decide the complaint. The objection taken by Opposite Parties No.3 and 4, in their written version, that the District Forum had no territorial Jurisdiction, to entertain and decide the complaint, therefore, being devoid of merit, must fail, and the same stands rejected.

15.             The next question, that falls for consideration, is, as to whether, the A.C. purchased by the respondent/complainant, suffered from manufacturing defect of low cooling or not. The answer, to this, is the affirmative. It is the admitted fact that the complainant purchased the split AC from Opposite Party No.1. The main grouse of the complainant was that she started encountering problem of low cooling within three months from the date of the purchase of the A.C. It is evident that the complainant lodged complaints regarding the cooling problem with Opposite Party No.2 on 07.08.2013 and 10.08.2013, which were attended to by the service centre representatives but they only changed the PCB and filled up the gas and did not reach any conclusion as to what the problem was. As per the complainant, even no receipt was handed over to her. The complainant registered another complaint with Opposite Party No.2 on 14.08.2013, which was closed by the Opposite Parties, without making any repairs. Therefore, the complainant registered another complaint with Opposite Party No.2 on 21.08.2013, for which, the representative visited with some senior representative Mr.Ved Prakash and filled up the gas second time but the problem was not solved again and there was no change in the cooling levels. The complainant again registered a complaint on 24.08.2013 and visit was fixed on 26.08.2013 but nobody turned up. Thereafter, the complainant received a call on 27.08.2013 from Opposite Party No.3 and the whole matter was briefed to it. The complainant again got a call from Opposite Party No.3 the same day i.e. on 27.08.2013, which was a conference call and appointment of visit of the representative of Opposite Party No.2 was fixed for the same day at 7.00 PM. In the meanwhile, a representative from the local service centre visited without any information or appointment and was asked to visit again at the agreed time of 7.00 P.M. on 27.08.2013 but nobody turned up. As per the complainant, before the District Forum, she wrote a customer care on 30.08.2013 requesting for repair or refund and in response to this, the engineers of the Opposite Parties visited and found outdoor unit fan stuck, which when rotated manually started working, which seemed to be the main problem, as change of PCB and filling of gas did not bring in the desired results. As per the complainant, this fact was also mentioned in the service report. Pursuant to this, again a complaint was made on 04.09.2013, against which, the complainant received the call from Opposite Party No.2 confirming that the outdoor unit would be replaced on 07.09.2013 but again this time, nobody turned up. The complainant again followed up on 09.09.2013 with the customer care to know about the replacement and was confirmed to revert back in 2-3 hours time but again there was no response and, as such, the complainant was forced to buy another A.C.

16.            It is evident, from the record, referred to above, that the complainant lodged a number of complaints with the Opposite Parties, regarding the aforesaid defect(s), and this fact has not been refuted by the Opposite Parties. The Service Engineers of the Opposite Parties many times tried to rectify the defects in the A.C but after repeated requests and visits, they failed to remove or rectify the defect(s) in the A.C. Moreover, deficiency in service on the part of the Opposite Parties is also writ large from the fact that the last service report dated 31.08.2013, placed on record by the complainant, before the District Forum, as Annexure R-1, showed the Outdoor Unit fan motor of the A.C., in question, was stucking, which was the actual problem, due to which, the A.C. did not give continuous cooling. Notwithstanding this, the Opposite Parties were unable to trace the real problem for a long period. This aspect was fortified from the fact that the Service Engineers of the Opposite Parties once changed the PCB and even did top up of Gas twice and actual problem was in the outdoor unit fan, which could not be identified by the Service Engineers, since lodging of the complaint on 07.08.2013, the Opposite Parties continued in changing part of filling up gas, which did not bring in the desired relief i.e. continuous cooling to the complainant. It is, thus, proved that the Opposite Parties sold a defective product to the complainant and failed to remove the defects in the AC.  As per Opposite Parties No.3 and 4, there was no defect in the A.C.  and as a goodwill gesture, treating it as a special case they offered to replace the Outdoor Unit, free of cost, but she did not allow them to install the new outdoor unit and instead asked for the refund. We are of the considered view that the District Forum rightly held that the replacement of the outdoor unit was not a gesture, but more of a compulsion, as the Technical Team of the Opposite Parties, which comprised the experts, in the field, did not have any idea as to why the fan got stuck, resulting in low cooling. The District Forum rightly held in para No.11 of the impugned order that Opposite Parties No.3 & 4, in replication to the rejoinder filed by the complainant, while defending their stand, instead of controverting the service report dated 31.08.2013, maintained that reliance sought to be placed on the same by the complainant was a feeble attempt to improve her case. The District Forum rightly held that deficiency in service was writ large on the part of the Opposite Parties; firstly, in not placing on record the aforesaid service report, which was their own document, to prove their bonafides and to show that all necessary corrective action had been taken by them to redress the grievance of the complainant; and secondly, in not ascertaining the real problem for a considerable period of time ever since the lodging of the 1st Complaint, and keep on changing part or filling up of gas, just to calm down the complainant. It is pertinent to note that when the A.C. was defective and the Opposite Parties themselves failed to cure the defect in the product, it was the duty of the Opposite Parties to get the same tested from the Laboratory, as the same (A.C.) was within the warranty period and it was not the duty of the complainant, who has to get the same tested from the Laboratory. The aforesaid facs speak volumes that the A.C., in question, suffered from inherent manufacturing defects. When the facts speak for themselves proving the inherent manufacturing defect(s) in the A.C., no expert evidence was required to be produced by the complainant. It may be stated here that Opposite Party No.3 is a Japan based well renowned company of high reputation and due to the problem in the high quality product, the complainant and her family were made to suffer and did not receive the cooling facility, which was the top most requirement in the peak months of summer. We are of the considered view that such a defective product was sold by the Opposite Parties to the complainant, which itself proved a lot of harassment to her and her family.

17.            Keeping in view the facts and circumstances of the case, we are of the considered view that the District Forum was right, in allowing the complaint, as stated above.   The District Forum was, however, required to direct the complainant to return the A.C. to the Opposite Parties, when it directed the refund of the price thereof, but it inadvertently failed to do so. By way of clarification, it is made clear that the respondent/complainant shall return the A.C. to the Opposite Parties, at the time of refund of the price thereof and payment of the other amounts awarded. Hence, the order passed by the District Forum, being based on correct appreciation of evidence and law, on the point, does not suffer from any illegality or perversity, warranting the interference of this Commission, and is liable to be affirmed, subject to the aforesaid clarification.

18.            For the reasons recorded above, the appeal, filed by the appellant, being devoid of merit, must fail, and the same stands dismissed, with the aforesaid clarification, with no order as to costs. The order of the District Forum is upheld with the clarification that the respondent/complainant shall return the A.C., in question, to the Opposite Parties, at the time of compliance of the impugned order.

19.            Certified Copies of this order be sent to the parties, free of charge.

20.            The file be consigned to Record Room, after completion.

Pronounced.

25.03.2015                                                         Sd/-         

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

 

 

Sd/-

 (DEV RAJ)

MEMBER

 

 

Sd/-

(PADMA PANDEY)

        MEMBER