IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 17th day of October, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C.No.155/10 (REMANDED)
Between:
James. M.T.,
Saji Bhavan,
Kurampala Muri,
Kurampala Village.
(By Adv. A.C. Eapen) ..... Complainant
And:
1. M/s. Attinkara Electronics,
Pandalam,
Rep. by its Partner Mr. Navas,
Attinkara Electronics,
M.C. Road, Pandalam.
(By Adv. R. Gopikrishnan)
Addl.2. Videocon Industries Ltd.,
14 KM Stone, Aurangabad-Paithan Road,
Chitegaon, Aurangabad – 431105,
Rep. by its Managing Director. ..... Opposite parties.
O R D E R
Sri. Jacob Stephen (President):
Complainant has filed this complaint against the opposite party for getting a relief from the Forum.
2. The complainant’s case is that he had purchased a Videocon Air Conditioner (1 Ton) on 23.3.09 by paying ` 15,000 to the opposite party. The service persons of the opposite party installed the same in the house of the complainant. On the day of installation itself, the Air Conditioner showed complaints like non-cooling. On the next day itself the complainant intimated the defect of the Air Conditioner to the opposite party. Thereafter, one service person by name Manoj came to the house of the complainant after 3 months and done certain repairing works. But the same complaints continued. After one month the said Manoj again came and taken the Air Conditioner from the house of the complainant with a promise to replace the same. But they did not replaced the same. Even after repeated request, the opposite party neither replaced the Air Conditioner nor paid the price of the Air Conditioner. So the complainant through his wife as power of attorney holder filed a complaint before this Forum as C.C.No.49/10 and on 31.5.10 the matter was settled between the parties on the understanding that the opposite party would clear the defect of the Air Conditioner on that day itself and made an endorsement over the complaint regarding the settlement. Based on the said submission and endorsement, this Forum disposed the complaint. But the opposite party did not comply the undertaking made before this Forum so far. Opposite party’s tactics was to escape from the warranty conditions. He played fraud on the Forum as well as the complainant. The complainant purchased the Air Conditioner for his son’s care and for getting relief in summer season. But he could not use the same in summer season as the A.C. was not returned by the opposite party. Because of this, the complainant and his family suffered a lot. The non-redressal of the complainant’s grievances is a deficiency of service from the part of the opposite party, which caused financial loss and mental agony to the complainant. Opposite party is liable to the complainant for the same. Hence this complaint for the realisation of ` 43,000 in all being the price of the Air Conditioner, compensation and cost.
3. Opposite party entered appearance and filed their version with the following main contentions:- Opposite party denied all the allegations of the complainant. According to the opposite party, the complainant’s allegation is that the opposite party had not complied the order of this Forum in C.C.No.49/10. So the complainant is not entitled to file a fresh complaint for the same dispute already adjudicated by this Forum and he has to file an E.A. The allegation of non-attending the complaint is false. On the basis of the complainant’s complaint regarding the working of the Air Conditioner, the technicians of the company visited the house of the complainant twice as per the request of the opposite party and they inspected the Air Conditioner and found the same is in good condition. The allegation that one Manoj from the shop had taken the Air Conditioner is false. The complainant himself had brought the Air Conditioner to the shop. Since the complainant’s allegation is manufacturing defect, Videocon Company and their authorised service centre Cool-Tech Refrigeration, Central Tower, Cross Junction, Thiruvalla are necessary parties to this complaint. Hence this complaint is bad for non-joinder of necessary parties. The opposite party is only a retailer and hence he is not responsible for the manufacturing defects or for the replacement of the Air Conditioner. The allegation that the opposite party had not complied the order of this Forum is false. Opposite party has made so many attempts to carry out the orders in C.C.No.49/10. But the said attempts turned futile due to the non co-operation of the complainant. At last the officials of the company refitted the Air Conditioner on 22.12.10 and the same was perfectly worked from 5.30 p.m. to 9.30 p.m. But the complainant was reluctant to put his signature in the job card. According to the opposite party since they are the retailers, the complainant’s Air Conditioner had no complaints and the allegation is manufacturing defect, they are not liable to the opposite party and there is no deficiency of service from them. With the above contentions, opposite party prays for the dismissal of the complaint.
4. The parties adduced their evidence which consists of oral deposition of PW1 and proof affidavit of the opposite party and Exts. A1 and A2. They were heard and this Forum allowed the complaint partly directing the opposite party to pay compensation of ` 5,000 with interest to the complainant.
5. Being aggrieved by the order of this Forum, both sides preferred separate Appeals before the Hon’ble CDRC, Thiruvananthapuram vide Appeal Nos. 548/2011 and 552/2011. The appellant in Appeal No. 548/2011 is the opposite party of this complaint and they challenged the order of this Forum on the ground that the complainant’s case is against the manufacturing defect of the Air Conditioner and hence the manufacturer is a necessary party to the proceedings and the manufacturer is not impleaded in the complaint. The Appellant in Appeal No. 552/2011 is the complainant of this case and he challenged the order of this Forum on the ground that the compensation allowed is very much at the lower side.
6. After hearing the parties, the Hon’ble CDRC allowed the Appeals and set aside the order of this Forum and remanded the matter to this Forum with a direction for permitting the complainant to adduce expert evidence and allowing the opposite party to adduce evidence and also to consider the contention of the opposite party that the manufacturer ought to be impleaded.
7. Accordingly, both parties appeared before this Forum and the complainant filed a petition as IA.169/2011 for impleading the manufacturer as additional second opposite party. That petition was allowed and the manufacturer was impleaded as the additional second opposite party. But the additional second opposite party did not turned up. Hence he was declared as exparte.
8. Thereafter, the complainant filed another petition as I.A. 53/2012 for appointing an Expert Commissioner for ascertaining the defects of the air conditioner. That petition was allowed and the Commissioner appointed by this Forum filed his report. Thereafter the Commissioner was examined as CW1 and the Commission Report and other documents filed by the Commissioner were marked as Exts. C1 and C2 series. Then the case was posted for the evidence of the first opposite party. But the counsel for the first opposite party submitted that they have no further evidence. Therefore, the evidence was closed and the parties were heard.
9. On the basis of the hearing and on the basis of the evidence before and after the remand, the only point to be considered is whether this complaint can be allowed or not?
10. On the basis of the available evidence at the pre remand period, this Forum found certain service deficiency against the first opposite party and this Forum did not found any manufacturing defect to the air conditioner as there was no expert evidence for the same. But after the remand, the complainant had adduced expert evidence to show the manufacturing defect of the air conditioner. The said expert evidence consists of the oral testimony of the Commissioner as CW1 and Exts. C1 and C2 series. Ext. C1 is the report prepared by the Commissioner after inspecting the air conditioner. Exts. C2(a) and C2(b) are the certificates showing the qualification and experience of the Commissioner in the respective field.
11. This case was remanded for adducing additional evidence by the parties including expert evidence. But the only evidence brought in this case after the remand is the Commission report. The said Commission report was submitted by the Commissioner as per the Commission Application of the complainant. In the Commission Application, complainant sought only 2 matters to be ascertained by the Commissioner. The first matter to be ascertained is to ascertain the name of the company which manufactured the air conditioner in question. Accordingly, the Commissioner had ascertained the said details and it is stated in his report. The second matter to be ascertained is to ascertain whether the air conditioner is working and whether there is any cooling effect in the room where the air conditioner is fitted. Accordingly, the Commissioner ascertained the said matters and it is reported in his report as follows: “Air Condition Unit Installationþ h¶ ]ng-hp-sImv Indoor, outdoor unitþ-IÄ X½n _Ôn-¸n-¡p¶ pipeline H-Snªv aS§n Refrigerant gas leak out Bbn outdoor unitþse compressor work -sN-¿p-¶n-Ã. High Amps F-Sp¯v unitþs\ trip B-¡p-¶p. Indoor unit-þ \n¶pw current outdoor unitþ\v proper Bbn In«p-¶n-Ã. Indoor unit.-þse Blower motor running time-þ Xs¶ HmWpw Hm^pw BIp-¶p. Cu unitþDw proper Bbn work sN-¿p-¶n-Ã. Cu Air Conditioner -C-t¸m-gs¯ Cu Ah-Ø-bn {]hÀ¯-\-c-ln-Xhpw D]-tbm-K-iq-\y-hp-amWv”.
12. In addition to this, he also reported that the air conditioner will not work at the present condition and there is no refrigerant gas and due to the non-working of the compressor, cooling will not get in the room and there is no air circulation in the room as the fan in the indoor unit is not properly working. It is unfortunate to say that the Commission Report is not helpful for ascertaining the alleged manufacturing defect of the air conditioner as there is no mention about any manufacturing defect. The name of the Commissioner is given by the complainant and the matter to be ascertained by the Commissioner is also suggested by the complainant. The Commissioner has not reported any specific manufacturing defects or the reasons of the non-working of the air conditioner. The Commission Report did not disclose any manufacturing defects. So we cannot find any manufacturing defects on the basis of Ext. C1 Commission Report and on the basis of the oral testimony of the Commissioner. What we can gather from the evidence adduced by the Commissioner is that the air conditioner is not properly working due to certain defects in its installation. There is no positive suggestion for rectifying the defects of the air conditioner. The Commissioner’s evidence is vague and hence it cannot be relied upon. However, from the facts and circumstances of this case, we are compelled to come to a conclusion that there is either some defects occurred during the installation of the air conditioner or some defects occurred due to some unauthorized servicing/repairing by some unqualified persons. It is an undisputed fact that the air conditioner in question is not working and it has to be repaired for getting the advantages of the air conditioner to the complainant who purchased it from the first opposite party. Being the seller of the air conditioner, the first opposite party has an obligation to provide proper servicing through the authorized service centre of the manufacturer free of cost. Therefore, this complaint can be allowed with modifications.
13. In the result, this complaint is allowed with modifications, thereby the first opposite party is directed to carry out necessary repairs to the complainant’s air conditioner with the help of the authorized service centre of the manufacturer free of cost within 15 days from the date of receipt of this order and if it is found not repairable, the first opposite party is directed to supply new air conditioner of the same brand if available otherwise by providing an air conditioner having similar standard and quality within 20 days from the date of receipt of this order. In that event, the additional second opposite party is directed to pay the cost of the air conditioner to the first opposite party.
14. In case of non-compliance of this order by the opposite parties, the complainant is allowed to realize the cost of the air conditioner purchased by the complainant along with compensation of ` 5,000 (Rupees Five thousand only) and cost of ` 1,000 (Rupees One thousand only) from the opposite parties with interest @ 10% per annum from today till the realisation of the whole amount.
Declared in the Open Forum on this the 17thday of October, 2012.
(Sd/-)
Jacob Stephen,
(President)
Sri. N. Premkumar (Member) : (Sd/-)
Smt. K.P. Padmasree (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : James. M.T.
Exhibits marked on the side of the complainant:
A1 : Retail invoice dated 23.3.09 for ` 15,000 issued by the
first opposite party to the complainant.
A2 : Warranty card.
Witness examined on the side of the opposite parties : Nil.
Exhibits marked on the side of the opposite parties : Nil.
Court Witness:
CW1 : M.P. Raju.
Court Exhibits:
C1 : Commission Report dated 04.07.2012 submitted by M.P.
Raju, Expert Commissioner before the CDRF,
Pathanamthitta.
C2,C2(a)&C2(b): Qualification certificate and experience certificates
of the Expert Commissioner.
(By Order)
(Sd/-)
Senior Superintendent.
Copy to:- (1) James. M.T., Saji Bhavan, Kurampala Muri,
Kurampala Village.
(2) Mr. Navas, Attinkara Electronics, M.C. Road, Pandalam. (3) Managing Director, Videocon Industries Ltd., 14 KM
Stone, Aurangabad-Paithan Road, Chitegaon,
Aurangabad – 431105.
(4) The Stock File.
