Order-17 .
Date-31/10/2017.
SHRI RABIDEB MUKHOPADHYAY, Member
This is an application u/s.12 of the C.P. Act, 1986.
That on 22.04.2016 the complainant (upon the representation of OPs’ Sales Manager namely Suchitra Guhathakura and representative Srikanta Sarkar) purchased LG Air Conditioner being model No. LSN5AF3D. ANGL INDOOR 59661604012618, LSU5AF3D. ANGL 59658604008389 from your aforesaid outlet on full payment through Bajaj Finance Ltd. and the Opposite Parties on that event provided payment receipt / bill for the same to the Complainant.
That the said Sales Manager and the Manager the Opposite Party No. 2 assured that Complainant will get delivery of the aforesaid Air-conditioner at his home by their representative directly for which Complainant have to pay some additional charges and the Complainant agreed for the same.
That as per assurance, the Opposite Parties delivered the said Air-conditioner with their representative Mr. Ganesh Kundu at the home of the Complainant on 27.04.2016 at 06.45 PM.
That the Complainant was astonished to see when he compared with the payment receipt / bill the model no. is miss-matching from the delivered Air-conditioner and was different model which the Complainant had never selected while purchasing and when the Complainant raised his objection on that event the said representative assured that though it is mismatching, but the quality of this Air-conditioner is also same.
That the OP willfully, intentionally and deliberately delivered an inferior quality Air-conditioner at the house of the Complainant with his representative Mr. Ganesh Kundu.
That the said representative Mr. Ganesh Kundu also verified and accepted with his signature after considering / comparing the payment receipt / bill dated 22.04.2016 issued by the OPs that the delivered Air-conditioner was of another model and mismatching from the model chosen by the Complainant while purchasing.
That the said representative Mr. Ganesh Kundu assured and promised to the Complainant that he would replace it very soon and the Complainant on good faith waited for a long time and even after repeated requests over telephone, personal visit and complaints, the OPs did not pay any heed and willfully and intentionally did not replace it till date.
That failing all hope and expectation the Complainant started using the said delivered Air-conditioner at his house but just after few days of installation of the said delivered Air-conditioner, it started making noise in very high volume, the Complainant again visited at the aforesaid outlet of the OPs and narrated the condition / problem of the delivered Air-conditioner. The OPs send their service persons and the service persons were unable to repair it and recorded in his service card that the said delivered Air-conditioner was noising in very high volume.
That while purchasing the Air-conditioner, the OPs represented before the Complainant that the condenser is made of copper but as confirmed by the service persons of the OPs the existing condenser is made of aluminium which is of very inferior quality.
The OPs also represented before the Complainant that the warranty of the said Air-conditioner is 1 + 4 years and the OP has not provided any warranty card till date in spite of the several request and personal visit to the outlet; on the other hand the OP provided mere a hand written warranty note on a simple paper with the Seal / Stamp of KHOSLA ELECTRONIC PVT LTD., 25/1 Shakespeare Sarani (Near- Saturday Club), PS . Shakespeare Sarani Kolkata – 700 017 to the Complainant by their representative Srikanta Sarkar on 06.03.2017 and the authenticity of the said hand written note on simple paper does not hold valid anywhere.
That on 06.03.2017 the Complainant made a repair request as per the instructions of the OPs and the Complainant got the Docket being no. RNP170306085266 from the LG Customer Care because the said delivered Air- conditioner had stopped cooling completely and no any service person visited at the premises of the Complainant to repair the said Air-conditioner.
That on 28.03.2017 the Complainant again as per the instructions of the OPs made another repeat complaint vide Docket being no. RNP170327040591 and on that event the representative of LG Customer Care visited at the premises of the Complainant and they tried to repair it but it was still noising in very high volume and representative accepted that the said Air-conditioner is making highly noisy by mentioning it in his job card dated 01.04.2017 signed by the Engineer, Kaushik Ghosh.
That the OPs and their men have violated the consumer norms with malafide intention to make wrongful gain by selling an inferior quality of product to the Complainant.
That the Complainant issued a notice dated 09.03.2017 to be served upon the OPs through his Ld. Advocate Mr. Niraj Kumar which remained unresponded.
The Complainant is a patient of various ailments, such as High Sugar and Blood Pressure and had pecuniary loss, suffered mental agony due to lack of sleep because of high noise of the delivered defective Air-conditioner and harassment due to misleading, dishonest and unethical action of the OPs and as such the Complainant is entitled to refund the sum of Rs. 33,500/- being the cost of the defective Air-conditioner, Rs.80,000/- for mental agony and pain and Rs.10,000/- for litigation cost.
The Complainant, therefore prays before the Ld. Forum that honour would graciously be pleased to direct the OPs to refund of the aforesaid sum of Rs.33,500/- being the price of the Air-conditioner and pay compensation and/ or damages for mental agony and pain for Rs.80,000/- and Rs.10,000/- for legal expenses and other incidental charges.
Written Version
In initial paragraphs from 1 to 7, OP-1 tried to defend by terming the complaint as not maintainable, bad due to non-joinder of necessary party, vexatious and having no cause of action but all without any cogent clarifications and proof. Ld. Advocate for the OP-1 contested the case and stated that the statements and allegations made by the Complainant / Petitioner of this application in paragraph Nos. 6 to 8 are denied by the OP / Respondent. This OP / Respondent No. 1 submitted before the Court that the allegation is completely untrue and vague.
That the Statements and allegation Nos. 9 to 11 made by the Petitioner / Complainant of this application are denied by the OP No.1, that the OP / Respondent No. 1 also submittedat WV para-10 that the Air-conditioner in question is false and untrue.
That the statement and allegation Nos. 12 to 15 made by the Petitioner / Complainant of this application are denied by the OP No. 1 and also submitted that Complainant has formulated scheme and story to make out his case.
That the OP No. 1 submitted at WV para-12 that the allegations made by the Complainant in paragraph No. 16 of this application is denied by the OP No. 1 and also stated that the OP No. 1 is not manufacturer of the goods/ Air-conditioner in question, the OP No.1 is only dealer / seller of different goods / Air-conditioner in question of different Companies, so this OP No. 1 / Respondent is not liable to provide any damages of the goods / Air-conditioner in question or defective of the said Air-conditioner in question to pay any compensation.
That the OP No. 1 also submitted at WV para-16that any deficiency in service and negligence was occurred by the OP No. 1. That OP No. 1 also submitted that after getting complaint by the Petitioner / Complainant that the OP No.1 at once forwarded the same to the Company.
That the OP No. 1 also submitted that for goodwill of the OP No. 1, the OP No. 1 always made service to the Complainant at the time of warranty period.
That the OP No. 1 submitted that defective goods / Air-conditioner in question to be replaced by a new one can only be liable or entitled to replace by the Company, who is not the party of this application.
That the OP also submits that any negligence and deficiency of service was occurred by the OP and also no harassment was occurred by the OP No. 1.
POINTS TO BE DISCUSSED
- Whether the complaint is maintainable;
- Whether the complainant is a consumer under the OPs;
- Whether the OPs are deficient and the complainant deserves relief.
DECISION WITH REASONS
We have perused the copies of Tax Invoice/Credit Memo. No.2524/1617/00225 date 22/04/2016, hand written warranty date 06/03/2017, legal notice date 09/3/2017 to OPs by complainant’s advocate through Speed Post claiming total amount of Rs 123500/- including the cost of the A/C machine for deficiency in sale, in sale and delivery of inferior quality as well as defective air conditioner, job sheet date 01/4/17 showing condenser change and gas chargebut having noise, Evidence, questionnaire and reply by respective parties.
On 12/7/2017 Ld. for OP-1 appears to have filed a petition alleging non-joinder of the Company as a party but there is no mention of the same in the order dated 12/7/2017.The petition was heard today along with arguments from both sides. Plea of OP-1 is that as the company/ manufacturer has not been made the party, the complaint is not maintainable. The complainant objected to such plea vehemently and pointed to para-2 of such petition stating that OP-1 stated under Affidavit that ‘…..complainant/petitioner has not maid necessary party the company…..’ and repeated the word ‘maid’ and prayed for rejection of such petition.
However, if we ignore the defect in spelling in such petition of OPs, we must not escape our consideration that the manufacturer/company of the air-conditioner should not at all a party to the case and there is no non-joinder. If the authorized seller of the manufacturer commits mistake in sending an air-conditioner of an inferior model to the purchaser/complainant from whom the said seller took money for another, air-conditioner of superior model, then whole lapse happens only due to the seller/OP-1 and the manufacturer should no how be brought into the action by way of making it a party. And here lies the pivot of the case. OP-1’s such petition is, therefore, rejected.
OPs have consciously tried to make the company a party in order to avoid the liability due to its own mistake. OP-1 received money against the model as reflected on the stated Tax Invoice. OP-1 took money on 22/4/2016 from the purchaser and delivered the disputed machine at the close of 27/4/2016. It is a must duty of the seller to check the model, warranty and other whereabouts of the machine to be sold before sending to purchaser’s home for installation. OPs failed to check all these during 5 or 6 days and sent an a/c machine of inferior quality with aluminium condenser, which subsequently gave much troubles to the complainant by high pitch sound.
It is confirmed from the endorsement of one Ganesh Kundu (Mob. No. 9831747670), the delivery and installing person that the supplied air-conditioner mismatched in model with that of the Invoice and OPs failed in their WV to categorically deny this. In spite of promise of said Gokul Kundu to change the machine and complainant’s visit and repeated phone calls, OP-1 did not do it and the complainant was compelled to use the defective one so supplied. When there was severe noise coming out of the machine, on insistence of OPs to lodge complaint, complainant did so twice and from job sheet dated 01/4/2017, it appears that in spite of repair carried out by engineer, the noise in the condenser could not be rectified.
We are concerned not with the defective air-conditioner (which the OPs indirectly admitted to be defective at WV para-15, but with the deficiency and negligence of OPs in sending a wrongair-conditioner that led the complainant to much harassment and troubles.Whether by mistake, inadvertence or otherwise, OPs admitted under affidavit at WV para-16 that any negligence and deficiency was occurred by OP-1. Moreover, OP-1 should have handed over warranty card with the supply of the machine but OPs did not hand over the same presumably to avoid the confusion between two models. After almost 11 months, one Shrikanta Sarkar handed over a hand-written warranty statement on 06/03/2017, that too with the starting that as the customer did not receive the extended warranty card. Warranty cards of branded commodities are always in printed forms to be supplied to purchasers under signature and seal of dealer/seller. Here, the seller has also big lapse and seemingly intentional. On the date of argument, Ld. Advocate for OPs handed over a copy letter dated 13/3/2017 issued by authorized signatory of OPs to the complainant requesting him to collect the extended warranty. But OPs failed to file any document of sending the letter to the complainant.
It is clear from above discussion that the case is well maintainable. It is also needless to mention that as the complainant purchased the air-conditioner from the OPs against consideration paid in advance and for which the complainant had to repay monthly installments to the financer, the complainant is a consumer under the OPs. Also, the complainant suffered a lot being reportedly a patient of sugar and high pressure, requiring cold room, due to negligence and deficiency of the OPs as discussed above. So, the complainant deserves relief.
But since the complainant has used the defective air-conditioner at least for some months, he cannot claim full refund of the purchase-amount (Rs 33500/-) and some percentage, say 10 percent (Rs 3350), should be deducted from Rs 33500/- for equity and justice.
In the light of above discussions, it transpires that the OPs are negligent and deficient causing troubles and harassment to the complainant.
Hence
ORDERED
That the complaint be and the same is allowed on contest against the OPs with cost under section 13(2)(b)(i) of the Consumer Protection Act, 1986 as amended;
That the OPs are directed to jointly and severally refund the purchase price after depreciation, Rs 30150/- to the complainant, against return of the defective air-conditioner from the complainant, within 30 days from the date of this order;
That the OPs are further directed to jointly and severallypay Rs 10,000/- as compensation for physical harassment and mental agony apart from paying litigation cost of Rs 10000/-to thecomplainant,within 30 days from the date of this order;
That on failure to comply with any of the above orders by the OPs, complainant shall be at liberty to put the non-compliance into execution under section 27 of the Act ibid.
Let the parties be handed over copies of the judgement when applied for.
