Order by:

Sh.Amrinder Singh Sidhu,  President.

1.       The   complainant has filed the instant complaint under section 12 of  the Consumer Protection Act, 1986 (as amended upto date) on the allegations that he purchased a Mitsubishi Heavy Duty AC of 1.5 Ton from Opposite Party No.3 authorised dealer of Opposite Parties No.1 and 2, for a sum of Rs.32,000/- vide invoice dated 04.07.2020. Further alleges that after purchase  i.e. within 4 months during warranty period of said AC, it develops defect in its cooling system, not blowing fresh and cool air, did not make the area cool, having noise etc. So, the complainant contacted Opposite Party No.3 who told that Opposite Parties No.1 and 2 could remove the defect or would replace the suit as the defect is within warranty period. Thereafter, the complainant registered complaints with Opposite Parties No.1 and 2 on 10.10.2020 and then on 31.10.2020 and then on 02.11.2020, but to no affect. Not only this, the complainant also served legal notice through his counsel  on 09.11.2020 and then on 25.10.2020, but the Opposite Parties did not bother to reply the said legal notice.  Inspite of the personal visits and calls by the complainant, the Opposite Parties did not bother and hence, there is deficiency in service and Unfair Trade Practice on the part of the Opposite Parties.   Vide instant  complaint, the complainant has sought the following reliefs.

a)       To direct the Opposite Parties to replace the AC in question  with new one  or to refund its price of Rs.32,000/- alongwith interest @ 12% per annum  and also to pay Rs.1 lakh as compensation for causing him mental tension and harassment and Rs.5,500/- as costs of litigation or any other relief to which this District Consumer Commission may deem fit be also granted. Hence, the present complaint is filed by the Complainant  for the redressal of  their grievances.

2.       On notice, none has come present on behalf of Opposite Party No.2 Company, and hence Opposite Party No.2 was proceeded against exparte.  However, complaint against Opposite Party No.1 was dismissed as withdrawn by the complainant.

3.       Opposite Party No.3 appeared through counsel and contested the complaint  by filing the written version taking preliminary objections therein inter alia that the present complaint is not maintainable; that there is no deficiency in service on the part of the Opposite Party. On complaint with regard to the AC in question, the answering Opposite Party sent the mechanic to the house of the complainant and same was checked and defect was removed. As a matter of fact, the electric supply in the house of the complainant was defective and thee was fluctuation in the electric supply and other electric appliances were also burnt which was noticed by the mechanic of the company and hence, there is no deficiency in service on the part of the Opposite Parties.   On merits, Opposite Party No.3 took up the same and similar pleas as taken up by them in the preliminary objections and hence, it is prayed that the complaint of the complainant is liable to be dismissed against Opposite Party No.3.

4.       In order to prove his case, the complainant has tendered into evidence  affidavit  of complainant Ex.C1 alongwith copies of documents Ex.C2 to Ex.C11 and closed the evidence.

5.       On the other hand, to rebut the evidence of the complainant,  Opposite Party No.3 tendered into evidence affidavit Ex.OP3/1 alongwith copies of documents Ex.OP3/2 to Ex.OP3/4 and closed the evidence on behalf of Opposite Party No.3.

6.       We have heard the complainant and Opposite Party No.3  and also gone through the documents placed on record.

7.       During the course of arguments, the Complainant as well as Opposite Party No.3  have mainly reiterated the facts as narrated in the complaint as well as in the written statements respectively. We have perused the rival contentions of  the parties and also gone through the record on file. The main contention of the complainant is that within 4 months during warranty period, the AC purchased by the complainant has became defective and for this, the complainant made so many representations to the Opposite Parties, but to no affect. On the other hand, the representative of Opposite Party No.3 has repelled the aforesaid contention of the complainant and contended that on complaint with regard to the AC in question, the answering Opposite Party sent the mechanic to the house of the complainant and same was checked and defect was removed. As a matter of fact, the electric supply in the house of the complainant was defective and thee was fluctuation in the electric supply and other electric appliances were also burnt which was noticed by the mechanic of the company and hence, there is no deficiency in service on the part of the Opposite Parties. It is not the denial of the parties that the complainant has purchased the 1.5 ton Air Conditioner of Mitsubishi Company from Opposite Party No.3 vide invoice  dated 04.07.2020, copy of the invoice is placed on record as Ex.C3. It is the case of the complainant that within warranty period i.e. within 4 months from the date of its purchase, said AC became defective  as it develops defect in its cooling system, not blowing fresh and cool air, did not make the area cool, having noise etc. So, the complainant contacted Opposite Party No.3 who told that Opposite Parties No.1 and 2 could remove the defect or would replace the suit as the defect is within warranty period. In this regard, the complainant also sent e-mail complaints to the Opposite Parties on 10.10.2020, then on 31.10.2020, copies of the e-mail complaints are also placed on record as Ex.C4 and Ex.C5. Not only this, the complainant also served legal notices upon the Opposite Parties on 9.11.2020 and then on 25.11.2020, copy of which is Ex.C6, Ex.C7 and its postal proof Ex.C8, Ex.C9, Ex.C10, Ex.C11, but the Opposite Parties did not pay any heed to the request of the complainant. On the other hand, despite service, Opposite Party No.2 company did not bother to defend its case and rather to chose to remain absent and proceeded against exparte.  Moreover,  Opposite Party No.3 has failed to give satisfactory reply regarding non manufacturing defect in the AC  in question through any cogent and convincing evidence. The case of the complainant is that the AC in question  is having manufacturing defect and to strengthen his version, the complainant has tendered his duly sworn affidavit Ex.C1. In this regard, Hon’ble Delhi State Commission, New Delhi in case titled as Jugnu Dhillon Vs. Reliance Digital Retail Limited 11(2014) CPJ page 17 has held that

“failure of compressor within 2-3 months of its purchase itself amounts to manufacturing defects- when any company stopped manufacturing particular model under these circumstances only way left is to refund of money alongwith interest- Product found to be defective at the very outset- It is always better to order for refund of amount.”

Hon’ble Supreme Court in case titled Hindustan Motors Limited and Anr. Vs. N.Shiva Kumar and Anr. (2000) 10 Supreme Court Cases, 654 also held so.  In the instant case, the AC  in question started giving troubles within warranty period. In this regard, Hon’ble National Commission, New Delhi in  case Shirish Vs. C.S.Rahalkar (Dr) in 2010(3) CLT page 209 has held that 

“the respondent had paid Rs.32,500/- for an original Amtrex air –conditioner and not an assembled air-conditioner. The State Commission has rightly held the petitioner guilty of Unfair Trade Practice as defined under the Consumer Protection Act and consequently, directed the petitioner to compensate the respondent for the same.”

As stated above, the complainant proved all these averments through his duly sworn affidavit Ex.C1 and also proved on record the copies of documents Ex.C2 to Ex.C11.  The evidence produced on record  by the complainant remained unrebutted and unchallenged through any cogent and convincing evidence.  

8.       Keeping in view the aforesaid facts and circumstances, we allow the complaint of the complaint partly and direct Opposite Party No.2 to replace the AC in question with new one of same make and model within 60 days from the date of receipt of copy of this order, failing which the Complainant shall be at liberty to get the order enforced through the indulgence of this Commission. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.

9.       Reason for delay in deciding the complaint.

          This complaint could not be decided within the prescribed period because the State Government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.

Announced in Open Commission.

Dated:07.06.2022.