Ram Parkash Sharma @ Bau Ji complainant has filed this complaint U/s 12 of the Consumer Protection Act of 1986 against the opposite parties praying that his complaint may be allowed and opposite party may be directed to refund the sale amount or to replace the Air Conditioner and Stabilizer. Complainant has further stated that in the event of replacement he is ready to pay the balance amount if any. Complainant has also claimed Rs.30,000/- as compensation from the opposite party on account of mental and physical harassmenmt suffered by him from the hands of the opposite party including Rs.20,000/- as litigation expenses, all in the interest of justice and fair play.

2.       The case of the complainant in brief is that he had purchased LLOYD Air Conditioner 1.5 LS18AAH ton split (Hot & Cold) for a sum of Rs.34,975/- and one Stabilizer for a sum of Rs.3,850/- form the opposite party No.1 for his personal use at his house on 20.6.2017 total amounted to Rs.38,825/- and out of Rs.38,825/- complainant had paid Rs.14,000/- on 03.07.2017 to opposite party No.1. It was pleaded that after few days of the installation of the said Air conditioner technician of opposite party No.2 was called by the complainant for demonstration of the Air Conditioner who came to the house of the complainant and demonstrate the A.C. and after demonstration technician told the complainant that the model of the Air Conditioner is not latest one and the same is old one. On it, complainant removed the outer box of the same and found that the price of the said product and the month and year of import had been scratched by the opposite party No.1. It was further pleaded that complainant approached the opposite party No.1 and requested for replacement of the said A.C. with latest model or refund the amount. Opposite party No.1 assured the complainant that he will resolve the problem within a week in consultation with opposite party No.2. It was also pleaded that after few days the stabilizer of Air Conditioner also stopped working properly which was within warranty period. Complainant also lodged a complaint with the opposite party No.1 in this regard but opposite party No.1 neither replaced the A.C. in question and stabilizer nor refunded the amount paid by the complainant at time of purchasing the above said items. It was next pleaded that after nine days of purchasing the said A.C. and stabilizer complainant again purchased one Air Conditioner same model LLYOD 1.5 ton split (Hot & Cold) amounted to Rs.31,500/- and one stabilizer amounted to Rs.2,000/- on 29.06.2017 from another dealer namely Diamond Finance Co. total amounted to Rs.33,500/-. As such opposite party No.1 over charged the price of Air Conditioner and stabilizer against its market price and that’s why opposite party No.1 removed the price, month & year of manufacturing from the outer box of the A.C. and due to this illegal act and conduct of the opposite party complainant suffered too much mental and physical harassment. It was pleaded that opposite party sold old model of Air Conditioner and defective Stabilizer to the complainant intentionally, hence this complaint. 

3.       Notice of the complaint was issued to opposite parties. Opposite party No.1 appeared through his counsel and filed the written reply by taking preliminary objection that complaint is not maintainable as framed. On merits, it was stated that opposite party had not scratched the Tag as alleged and it is incorrect that the A.C. was old one. It was further stated that A.C. and Stabilizer were in proper working condition and there was no complaint at all and A.C. purchased by the complainant were totally different. All other averments made in the complaint have been denied and prayed for dismissal of the complaint with costs.   

4.       Opposite party No.2 also appeared and filed its separate written reply stating therein that business of all consumer durables of Lloyd Electric & Engineering Ltd. has now been taken over by Havells India Limited and as such Havells India Limited is the opposite party No.2 in the present complaint. It was stated that it can be seen that the dispute in the present complaint is solely between the complainant and the dealer i.e. OP. No.1 and as per serial number the bar code of the packing, the month and year of manufacturing of the product is August, 2013. It was further stated that opposite party No.2 regrets if any inconvenience is caused to the complainant and craves leave of this Hon’ble Forum to allow to settle and close the  matter with respect to opposite party No.2 and prayed for closing the matter with respect to opposite party No.2.  

5.      Counsel for the complainant had tendered into affidavit of complainant Ex.CW-1/A along with documents Ex.C1 to Ex.C5  including copy of receipt dated 15.03.2017 mark ‘A’ and closed the evidence on behalf of complainant. 

6.      Sh.Surinder Kumar employee opposite party No.1 had tendered into evidence his self attested affidavit Ex.OP-1/1 and closed the evidence on behalf of opposite party No.1.

7.      Sh.Tejinder Pal Singh Sr.Executive of opposite party no.2 had made a statement on 16.5.2018 that written reply filed on 04.01.2018 may kindly be read as evidence of opposite party no.2 and no more evidence is required to be produced.

8.       We have carefully examined all the documents/evidence as made available on the complaint records (as duly put forth by the participating litigants) along with the scope of the adverse inference that may be judicially but discretionarily drawn on account of the intentional non-submission of some vital documents by the participating litigants, in the back-drop of the arguments as put forth by the learned counsels for the litigating sides.

9.       We find that the complainant had on record purchased (affidavit Ex.Cw1/A) one 1.5 TON Split (Hot & Cold) Lyod Make Air Conditioner along with a Voltage Stabilizer vide (Ex.C1) Bill # 20220 of 20.06.2017 for Rs.38,825/- from the OP1 Vendor by paying him a sum of Rs.14,000/- with an outstanding payable amount of Rs.24,825/-. However, when the complainant called the OP2 Manufacturer Technician at his residence for the purpose of installation-cum-demonstration of the AC (in question) he learnt of its old model (2013) with imprinted price & year of import etc duly scratched/erased from its inner frame. The OP2 Manufacturer have also confirmed the old model (2013) of the AC vide its written reply as duly filed during the present proceedings. The complainant approached the OP1 Vendor who however refused to replace the AC with a new/fresh model piece and thus prompted the present complaint for replacement/refund along with suitable cost and compensation.

10.     We find that the present complainant has successfully proved all his complaint-contented allegations vide his affidavit (Ex.Cw1/A) and other evidentiary documents Ex.C1 to Ex.C5; and we further find that the OP2 Mfrs have also ratified the complainant stated fact(s) vide its duly filed written statement; whereas the OP1 vendor has preferred to file the lone affidavit deposing that the sold AC has been working well and has not been of the old model (as alleged) but has failed to produce any cogent evidence to prove the same and in its absence ‘rebuttal’ amounts to bald statements, only. However, we (in line with the settled equity-law) are inclined to subject the statutory award to restrictions of ‘moderation’ so as not to cause undue enrichments to the ‘awardee’ and/or to cast undue excessive ‘distresses’ to the delinquent party.            

11.    In the light of the all above, we find the hue of actionable statutory merit in the present complaint and thus ORDER the OP1 Vendor to replace the sold AC (in question) with a brand New and Fresh piece of AC of exactly the standard AC specifications and/or otherwise to refund the paid-out invoice amount in full to the complainant besides to pay him Rs.10,000/- as cost and compensation within 30 days of the receipt of the copy of these orders otherwise the awarded amount shall attract interest @ 9% PA from the date of filing of the present complaint till actual payment.

12.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.

                           (Naveen Puri)

                                                                                               President.

ANNOUNCED:                                                            (Jagdeep Kaur)

JULY 06, 2018.                                                                     Member               

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