Heard learned counsel for the appellant and learned counsel for respondent No.1. None appears for respondent No.2.

2.      Here is an appeal filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.

3.   The unfolded story of the of the complainant is that the complainant has purchased Carrier Split A.C. on 4.4.2012 from OP No.1 on payment of consideration amount of Rs.41,000/-. It is alleged inter alia that after purchase the A.C. gave problem for which the complainant has been to OP No.1 for service. 3 to 4 days thereafter again the A.C. gave problem. The complainant alleged same before OP No.1. After service the A.C. was returned to the complainant. It is further alleged that the complainant found again defect in the A.C. for which he was mentally harassed. Complainant found there is inherent manufacturing defect for which he informed the OPs to deliver a good new split A.C. but the OPs remained silent on the problem, thus, the complaint was filed.

4.      OP No.1 was set ex parte before the learned District Forum. OP Nos. 2 and 3  filed written version stating that Split A.C. has no manufacturing defect at no point of time. They averred that there is no cause of action against OP Nos.2 and 3 to file complaint. It is further averred that the defect has not been sent for expert opinion and as such the complaint is not maintainable. It is also pleaded by OP Nos. 2 and 3 that complainant has alleged about leakage  of gas which is not manufacturing defect. It is averred that  unit of AC was delivered on 4.4.2012 but complaint came in May, 2012 showing defect  which is nothing but leakage of gas. That defect was removed. But again complainant came in March, 2013 alleging defect in AC. But it was also leakage of cash which was also removed. It is also averred that after 12 months of warranty complainant came to change the parts of unit but OP No.2 asked to pay charge for change of parts as by then warranty period was over. Complainant did not agree and asked to replace a new one with new AC to which OP did not agree. Thus, there is no deficiency in service or unfair trade practice on the part of OP Nos. 2 and 3.

5.      After hearing learned counsel for both sides, learned District Forum passed the following order:-

                             “xxx   xxx   xxx

            The petition of the complainant is allowed on contest against the OPs.

The OP 1 responsible to pay Rs.3000/- towards compensation and mental agony and OP No.2 and 3 are jointly and severally responsible to pay Rs.10,000/- towards mental agony and litigation expenses and also it is ordered to replace with a new Carrier Split A.C. Model ESTRELLA with V.Guard Stabilizer for the cost of Rs.48,000/- and compensation of Rs.500/- expenses of the same within one month.

After lapse of one month the OPs are liable to pay 8% interest on the above amount.

Failing which execution proceeding as provided U/s 25 and 27 of C.P.Act will follow.”

6.      Learned counsel for the appellant submitted that the learned District Forum has committed error in law by not going through the written version with proper perspectives. According to him OP No.1 is the dealer who was set ex parte. It is also submitted that the split A.C. in question was never brought to OP No. 2 with manufacturing defect. There is only allegation of leakage of gas from the A.C. and the same has been rectified from time to time by Service Centre of OP No.2. Learned District Forum has failed to appreciate all these materials on record and finally passed the impugned order illegally. He further submitted that leakage of gas is not a manufacturing defect when after 12 months of warranty period the complainant came to replace parts of unit OP No.2 asked to pay charges to which complainant did not agree and file false complaint. Learned District Forum did not appreciate the fact and law involved in this case. Bereft of this learned counsel for the appellant submitted that learned District Forum without AC in question being examined by expert illegally it observed that there is manufacturing defect in it. So, he submitted to set aside the impugned order by allowing the appeal.

7.      Learned counsel for the respondent submitted that when there is frequent defects in the Split A.C. including leakage of gas, there is manufacturing defect of the A.C. in question. When the problem in the A.C. was not removed he was compelled to file the case. So, he submitted that the learned District Forum has rightly analyzed the materials on record and passed the reasoned order.

8.      Considered the submissions of learned counsel for respective parties and perused the DFR including the impugned order.

9.      It is admitted fact that the complainant has purchased the Split A.C. manufactured by OP No.2 from OP No.1. It is also admitted fact that there is warranty period prescribed for the Split A.C. purchased by the complainant from OP No.1 on 4.4.2012. It is not in dispute that the complainant has brought the Split A.C. to the knowledge of OP No.2 for service which was also allowed by OPs. He had purchased the A.C. on 4.4.2012. It is clearly revealed from Para – 2 of the complaint that after one month of purchase the A.C. starts mal-functioning due to leakage of gas.  It was given for service. In the month of March, 2013, there was again leakage of gas and it was repaired as revealed from complaint. Thereafter, in the month of May,2013  complainant again brought the AC for repairing of its parts and OP No.1 changed the parts and complainant did not take return of AC but OP No.2 averred that he asked for the charges to repair as the warranty period of 12 months was over by then. On the other hand, complainant refused to pay. Now onus lies on the complainant to prove that refusal to remove the defect free of cost is a deficiency in service and also he has left parts and cover with OP No.1. But no document is filed by the complainant to prove the retention of parts by OP No.1.

10.    We have gone through the warranty. It appears that warranty period was for 12 months and change of parts is only possible within a period of warranty. Leakage of gas is not a defect covered under the warranty to give service. Mere assertion of the complainant that leakage of gas is manufacturing defect is not proved by the complainant. Assertion of the complainant is mere suspicion which cannot be given by legal proof. Moreover, warranty cannot disclose for replacing the unit of AC in question but parts can be replaced or repaired.

11.    Moreover, the learned District Forum observed that as there was defect from time to time as alleged by complainant the manufacturing defect in the AC cannot be ruled out. This observation of the learned District Forum and the submission of the learned counsel for the complainant must be evident from the expert. Here, the complainant has not sent the A.C. for expert opinion to find out manufacturing defect. Learned District Forum has only presumed that there is manufacturing defect due to consistent defect in the A.C as to leakage of gas. There is provision u/s 13 of the Act to send the goods for expert opinion. If there is no expert opinion and the learned District Forum has not taken step for sending the same for collecting expert opinion, there is gainsaying by the OPs that there is no manufacturing defect. Leakage of gas from time to time occurs due to various reasons. Without examining of the concerned A.C. by expert the conclusion arrived by the concerned learned District Forum is not acceptable. It is true that consumer legislation is enacted with above object to protect the interest of consumers. But when there is provision in Section - 13 of the Act to send the goods purchased for expert opinion to find out the manufacturing defect same has to be complied. It is settled in law that the Act under the law to be executed as prescribed under the statute but not whimsically or with caprices. Therefore, we are of the view that the finding of the learned District Forum has no legal basis. Thus, we are inclined to set aside the impugned order by allowing the appeal.

12.    Hence, the appeal stands allowed. However, we hope that OP would change the parts of AC if found defective free of cost on one time basis on the efforts made by complainant. No cost.

         DFR be sent back forthwith.

        The statutory amount deposited be refunded to the appellant with interest accrued thereon, if any on proper identification.

         Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.