ORDER

 [Per Shri Jayant S. Prabhu, President]

By this order, we shall dispose the complaint filed by the Complainant as against the Opposite Party alleging deficiency in service.

1. As per the Complainant, she purchased an AC unit from the Opposite Party on 06-04-2013 and same  was installed at her residence.  According to her it started giving problem after three days.  On the advise of the technician,  the stabilizer was changed from V Guard to Nekon and accordingly she had to pay a difference of Rs.2,000/- for the purchase of new stabilizer.  Inspite of changing of the stabilizer, the A.C. unit did not perform to her satisfaction and started giving trouble.  On her request the technician of the Opposite Party thereafter,  inspected the unit on 12-04-2013.  However, according to her,  the service was improper and   again on 30-07-2013, the technician came  on the request of the Complainant.  However, according to her as the service was not proper, a complaint was  lodged again by her on 18-09-2013, as no proper cooling was found at night.  The technician came again  carried out the servicing and attended to the unit.  According to her thereafter,  on her complaint, a technician visited her house on 31-01-2014, and  on 07-02-2014. Inspite of the repeated visits of the technician, the Complainant did not find the performance of the unit to her satisfaction, hence the present complaint came to be filed against the Opposite Party.

1. In her complaint she has prayed for the cost of the A.C. so also has  prayed for compensation of Rs.5,000/- and cost of the litigation.

1. The Complainant has relied upon seven field service reports.

1. The Opposite Party has filed their written version.  According to them,  they deny that the A.C. unit is an unfit unit.  So also according to them, there is no ACME Industries as mentioned in the cause title.  The Opposite Party further submits that Gomes& Sons Pvt. Ltd., is in no way connected to ACME Industries.  The Opposite Party,  Mr. Orceth Gomes submits that he is a Director of Gomes & Sons Pvt. Ltd., incorporated under the Companies Act.  

1.  According to him, the Complainant purchased an Electrolux 1.5 ton 3 star Split AC Model unit and after its purchase they deputed Mr. Peter  Fernandes to install the said unit in the house of the Complainant.  After installing it, the Complainant was satisfied and she has accordingly signed,  acknowledging  the satisfaction of installation as per  the Installation Work report dated 06/04/2013,  which the Complainant has relied upon.

1. According to the  Opposite Party,  on 07-04-2013 the Complainant telephoned the Service Department of ACME Refrigeration Industries on the ground that the unit was not cooling.  The Service-In-Charge thereafter deputed Peter Fernandes to check the unit where upon it was found that the unit was giving satisfactory service and was found to be cooling.  It is also submitted by the Opposite Party that said Peter Fernandes on the request of the Complainant waited till 1.30p.m. to demonstrate the cooling effect  to  the daughter of the Complainant who was not in the house at the time of carrying out the service to the unit.

1. On 09-04-2013, again the Complainant telephoned the Service staff of ACME Industries and  complained that the unit was not cooling  at a particular time in the evening. The technician of ACME Industries thereafter  visited the house of the Complainant only to find that the unit was functioning normally.  However, presuming it was the voltage problem specially during the odd hours, the Complainant was requested to change the stabilizer.  According to the Opposite Party, the Complainant was requested to keep the A.C. unit on,  throughout the day and night to find out any defect in the unit.  The technician was also kept as a stand by to attend to any  problem that  would occur.

1. As per the Opposite Party the Complainant called on                  12-04-2013 and lodged a complaint stating that the A.C. was not working.  The technician was promptly deputed to the house of the Complainant wherein he found that the A.C. was working in proper condition.  Work report dated 12.4.2013 is placed on record by the Complainant.  According to the Opposite Party,  the Complainant had set the unit on dry mode,  and therefore,  probably the unit was not giving satisfactory service to the Complainant.  According to them there could be  no proper cooling as alleged by the Complainant due to fluctuation in the voltage during night time and therefore,  the Complainant cannot complain about the defect in the unit. 

1. According to them the documents which are relied upon by the Complainant deny the allegations of the Complainant as all the reports categorically mention that the A.C. unit was cooling properly  and  all the reports  are found duly signed by the Complainant acknowledging  proper services given by the Opposite Party.  According to them the Opposite Party is not responsible for the noise problem of the stabilizer which  according to them could have been on account of power supply fluctuation and therefore,  the complainant should address her complaint to the Electricity Department.  According to the Opposite Party,  they have been  attending  the  complaints as and when the complaints are lodged,  and that the allegation of not attending the complaints of the Complainant is absolutely false.

1. Ultimately,  the Opposite Party prays that there is no privity of contract between the Complainant and Mr. Orceth Gomes i.e. the Opposite Party therefore,  the complaint requires to be dismissed with costs.

1. At the time of the hearing, it was observed that the husband of one of the Members of  Forum is employed  with the Opposite Party as such she has  recused  herself from the present complaint.

1. The question that requires to be answered by us in the complaint is whether there is a manufacturing defect in the A.C. unit purchased by the Complainant and if it is so whether the Complainant has filed the present complaint against the proper parties and is therefore,  entitled to the relief which she has claimed.

1. Admittedly, the A.C. unit which the Complainant has purchased is from Gomes & Sons Pvt. Ltd., and the Opposite Party Mr. Orceth Gomes is one of the Director of said Gomes & Sons Pvt. Ltd.,   The A.C. unit is of  Electrolux model and is manufactured by the Electrolux Company. As such, the Complainant ought to have made the Electrolux Company as the main Opposite Party.  The Electrolux Company is the manufacturer of the unit and therefore, is answerable to the defects, in the unit.  The different State Commissions as well as the Hon’ble National Commission has in number of judgments clearly held that if there is any manufacturing defect in the unit, it is the manufacturer who is answerable to it.

1. It is the case of the Complainant that the unit being recently purchased, it had a warranty and therefore the Opposite Party is liable for the replacement of the unit in case it is mal-functioning.  According to us if the unit was mal-functioning,  the Opposite Parties  who are the dealers of the A.C. unit are not liable for the replacement .

1. It is the manufacturer who have given the warranty on the unit to the Complainant and the manufacturers are liable to honour the warranty.

1. Relying upon the decisions of the Hon’ble State Consumer Disputes Redressal Commissions in First Appeal No.14.2012 decided on 01-11-2012,  Sai Cellular Services v/s Devdutt Naik, we hold that it is the manufacturers who has to honour the warranty.  The Hon’ble State Commission has held as under:

“19. The warranty was given to the Complainant by the Nokia Company. Nokia company was a necessary party to the complaint. The Opposite Party was only a dealer or agent of the said Nokia company. Opposite Party was not liable to honour the warranty. It is the Nokia company who was liable to repair or replace or refund the price under the said warranty and not the Opposite Party.”

1. As such on this count alone the complaint requires to be dismissed. From the reading of the complaint and the so called affidavit in evidence of the Complainant,   we find that the Complainant has failed to prove the so called defect in the unit,  on record.   According to her the said unit gives proper service during the day time and goes off at night.  Although the Opposite Party disputes such an allegation made by the Complainant, and considering the allegations made by the Complainant to be true for sometime,  we are of the opinion that the unit must be mal-functioning  during the night time due to the fluctuation of the voltage in the electricity current.  In such an eventuality, we cannot hold the Opposite Party responsible.  It is for the Complainant to check the voltage and its fluctuation and should have taken the assistance of an electrician so as to supply proper current to the electrical unit.  The Complainant ought to have placed on record the experts report or report of an electrical engineer substantiating her allegation of the mal-functioning of the unit.

1. From the records we find the work reports which are relied upon by the Complainant herself belie her own case.    As such we do not find any reason to allow the complaint and accordingly the complaint stands dismissed.

[Shri Jayant S. Prabhu]

           President

[Ms. Savita G. Kurtarkar]

             Member