IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM
Dated this the 8th Day of October 2021
Present: - Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President
Smt.S.Sandhya Rani, Bsc, L.L.B,Member
Sri.Stanly Harold, B.A.LLB, Member
CC.84/19
Siddique : Complainant
The Manager
City Fones
Kottiyam.
V/s
Mr.Shalu : Opposite party
Proprietor
Top cool cooling Systems
Air conditioning contractors
NH 47, Mylakkadu P.O, Kollam.
[By Adv.Francy John]
FINAL ORDER
Smt.S.Sandhya Rani, Bsc, L.L.B,Member
This is a case based on a consumer complaint filed u/s 12 of the Consumer Protection Act.
The averments in the complaint in short are as follows:-
On 15.11.2016 the complainant has purchased an A/C of Mitsubishi company Split 2 Tone 5 Star Rating Model MS GK 24VA D1 for Rs.59,700/- from the opposite party. Since 6th month of its purchase the A/C showed complaints one after another and the same was undergone repairs about 16 times by the staffs sent by the authorized service centre of opposite party but still the A/C is not working properly. All the repairs were carried out by the authorized mechanics sent by opposite party and they have received Rs.15,000/- by way of repairing charges. The complainant has also conducted required electrical works which was necessary for the proper functioning of the A/C as directed by the authorized mechanics sent by the opposite party. The A/C was having one year warranty while its compressor with warranty of 5 years. By way of shifting the A/C from one place to another for ensuring its proper functioning inside the shop, the complainant had to meet another extra expense of Rs.6000/-. According to the complainant the A/C is having manufacturing defect. Though the complainant had requested the opposite party for either the repair or the replacement of the defective A/C with a new one they were not ready to do so. Thereafter the complainant had sent an e-mail to the company by stating the above mentioned facts but they had not responded to the said e-mail complaint.
The above mentioned negative attitude on the part of opposite party caused severe mental agony and financial loss to the complainant. So the complainant is entitled to get replaced the defective A/C with a new one along with Rs.15,000/- service charges received from the complainant and Rs.6000/- as expenses incurred as directed by the service mechanics of opposite party. Hence the complaint.
According to opposite party the complainant is a well established commercial institution having branches in Punalur, Kollam Corporation and at Kottiyam and each branch consists of employees more than 10 each. The sale proceeds of Kottiyam branch alone may have more than 2 lakhs per day. That is the daily income of the complainant from the above 3 branches is more than 5 lakhs that means the complainant institution is not a self employed institution but a large scale industrial unit. Hence the complainant here will never be a consumer as per the Consumer Protection Act. As per the warranty conditions the standard warranty exists only for a period of one year from its purchase on 15.11.2016, but this complaint is filed only on 02.04.2019 which is beyond one year of its purchase and hence the complaint is barred by limitation. Therefore the complaint is to be dismissed on that ground. Again contented that the mal functioning of the A/C is purely due to manufacturing defect that the opposite party is only a sales unit of A/C manufactured by Mitsubishi Company. If there is any manufacturing defect then the manufacturing company will be liable for the same. Here the complainant has failed to include Mitsubishi Company in the party array of opposite parties hence the petition may be dismissed on the ground of Non Joinder of necessary party.
Another contention of the opposite party is that the mobile sales shop named City Phones belongs to the complainant is situated very close to bus stop at Kottiyam Junction. Due to the over crowd of people and vehicles there exists dust problems in that areas especially infront of the said shop. Moreover there is no front door to the said shop. Instead of using door the entrance of the shop facing road is closed with an air curtain. Usually the cooling coil and condenser coil in the indoor unit of A/C would be damaged due to dust and the service personals of opposite party had done blower cleaning 4 times to the indoor and outdoor units of A/C without imposing any charges and they had made full water wash to the A/C twice even after its warranty period and also received Rs.1500/- and Rs.1200/- respectively for each water wash. According to opposite party the non functioning of the A/C is due to depositing of dust in cooling coil and condenser coil which are caused due to the over crowd in that particular area and absence of door in the entrance of the shop in which the A/C is fitted. By engaging technicians other than authorized technicians of opposite party for repairing the alleged A/C unit, the complainant violated the warranty conditions and any one of the unauthorized technicians had unnecessarily removed and refilled 410 A gas from the A/C and changed the place of A/C from one place to another as per the convenience and interest of customers but not with the consent of opposite party. The complainant had never spend Rs.6000/- by way of filling charge of the A/C on any occasion. It is not seen from anywhere in the complaint that there exists deficiency in service on the part of opposite party and he has not sustained any financial loss. More over the opposite party is not aware that the complainant had made any petition before Mitsubishi Company through e-mail by demanding replacement of the defective A/C unit. The complainant is not entitled to get Rs.21000/- as compensation from opposite party since the complaint is filed not within the warranty period and he has failed to include the Mitsubishi Company in the party array. The opposite party further prays to dismiss the complaint with cost. In the above pleadings the points that arise for consideration are:-
- Whether there is any deficiency in service or unfair trade practice on the part of the opposite party in selling the defective A/C unit to the complainant?
- Whether the complainant is entitled to get the defective A/C replaced by a new A/C?
- Whether the complainant is entitled to get back the service charges and other expenses realized during warranty period by the service personals of the opposite party?
- Reliefs and costs.
Complainant has not adduced any oral evidence but filed two documents along with the complaint which are marked as Ext.A1 and A2.
Opposite party has not adduced any oral or documentary evidence. Neither party has filed any notes of argument. No oral argument made on the side of complainant but opposite party advanced oral argument.
Point No.1 to 3
For avoiding repetition of discussion of materials these 3 points are considered together. Ext.A2 cash bill reveals that the complainant has purchased A/C from opposite party for Rs.59700/- on 15.11.2016. It is evident from Ext.A1 warranty card that the A/C is having 1 year standard warranty plus 4 years extended warranty. As per the complaint since 6 months of its purchase the A/C showed complaints one after another and even after several repairs still the A/C do not function properly. The above allegation of the complainant is not disputed by the opposite party in their version.
According to opposite party the complainant’s mobile shop is situated in a crowded place near bus stop at Kottiyam junction. Due to the over crowd of people and buses there exists dust problem and the entrance of the said shop is not closed properly with door but there is only an air curtain instead of door. According to the opposite party in the absence of door the dust particles may enter inside the shop and hence there is chance to cause damage to the cooling coil and condenser coil in the indoor unit of A/C. It is also contended that the damage of the A/C was caused due to carrying out repair work by engaging technicians other than authorized service personals sent by opposite party. But there is absolutely no evidence either oral or documentary to substantiate the above contentions. This Commission is not expected to come to a conclusion on the basis of surmises and hypothesis suggested by the opposite party. It is to be pointed out that the opposite party would admit that the defect is not on account of their fault but it is due to manufacturing defect. Therefore it is clear that the A/C sold by opposite party to the complainant is having manufacturing defect.
It is true that the manufacture of the A/C is not made an opposite party in this case. But it is to be pointed out that when the A/C unit has become defective within the warranty period the opposite party has utterly failed either to set right the defect or to replace the product either by itself or through the manufacturing company. The seller is not expected to place the entire blame on the manufacturer since the profit obtained out of the sale of the product to the complainant has been received and swallowed by the opposite party. The seller ought to intimate the manufacturing defect of the product to the manufacturing company and ask them to rectify the same at their expenses or to replace it without causing loss or mental agony to the purchaser who purchased it by spending a huge amount.
There is absolutely no material to substantiate the claim of the complainant that the opposite party has received Rs.15000/- as repairing charge during warranty period and he has spent Rs.6000/- for changing the position of the A/C at his shop room as instructed by the opposite party.
In view of the reasons stated above we are inclined to hold that the opposite party who has sold the defective A/C unit to the complainant has committed unfair trade practice provided under Section 2(47) of Consumer Protection Act 2019. Therefore the complainant is entitled to get the A/C unit having manufacturing defect to be replaced with a new one of the same model and also entitled to get refund Rs.2700/- admitted to be received by the opposite party as repairing charges during the warranty period. Points answered accordingly.
Point No.4
In the result complaint stands allowed in the following terms.
- Opposite party shall replace the defective A/C with a new one of the same capacity and specifications along with warranty from the date of replacement.
It is made clear that the complainant shall produce the defective A/C at the shop of opposite party for enabling the opposite party to replace it. On production of the defective A/C the opposite party shall receive the same and issue receipt of the same and replace the defective A/C unit within a period of 45 days from the date of receipt of a copy of this order.
- The opposite party shall refund Rs.2700/- being the repairing charges received during warranty period to the complainant.
- The opposite party shall pay costs Rs.5000/- to the complainant.
If the opposite party failed to comply with the above directions the complainant is entitled to get Rs.67,400/-(59,700+2700+5000) along with interest @ 9% p.a except for costs from the date of sale of the defective A/C unit till realisation from the opposite party and its assets.
Dictated to the Confidential Assistant Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the Open Commission this the 8th day of October 2021.
S.Sandhya Rani:Sd/-
E.M.Muhammed Ibrahim:Sd/-
Stanly Harold:Sd/-
Forwarded/by Order
Senior Superintendent
INDEX
Witnesses Examined for the Complainant:- Nil
Documents marked for the complainant
Ext.A1 : Warranty card issued by Mitsubishi Electric India Pvt.Ltd.
Ext.A2 : Cash bill dated 15.11.2016 for Rs.59,700/- issued by Top Cool Cooling Systems.
Witnesses Examined for the opposite party:-Nil
Documents marked for opposite party:- Nil
S.Sandhya Rani:Sd/-
E.M.Muhammed Ibrahim:Sd/-
Stanly Harold:Sd/-
Forwarded/by Order
Senior Superintendent
