Delhi

North East

cc/165/2012

Shri Shakeel Ahmad - Complainant(s)

Versus

M/s Gupta Electronics - Opp.Party(s)

25 Mar 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 165/12

 

In the matter of:

		Shri Shakeel Ahmad S/o Shri Abdul Chaman R/o- 602/2A, Moti Ram Road, Shahdara Delhi-110032		Complainant
		Versus
	1       2.	M/s Gupta Electronics 1157/1, East Rohtash Nagar, Shahdara Delhi-110032 M/s Voltas Ltd., B1/J2, Mohan Cooperative Industrial Estate, Mathura Road New Delhi-110044		Opposite Parties
			DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :		20.04.2012 25.03.2019 25.03.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Briefly stated, the facts giving rise to the present complaint as narrated by the complainant relevant for the purpose of consideration are that the complainant had purchased a Voltas Vertis 1.5 ton premium split Air Conditioner (AC) from OP1 on 28.04.2011 vide invoice no 320 for a sum of Rs. 24,500/-. The subject AC was manufactured by OP2. However, ever since the purchased and installation of subject AC, the same was found defective and repeated complaints were lodged around 10 times with regard to gas leakage problem from 11.09.2011 to 26.04.2012 by complainant with OP2 and on each occasion, the authorized service franchise of OP2 did gas charging service job of the subject
   AC but the defects therein could not be removed. The complainant asked OP2 to replace the subject AC but OP2 was unwilling to do so and as such due to the recurring defects in the AC, the family members of the complainant suffered mental pain and agony and financial strain and therefore alleging deficiency of service against the OPs, the complainant was constrained to file the present complaint against the OPs praying for issuance of direction against the OPs to either replace the subject AC with the new one or in the alternate refund the cost thereof alongwith compensation of Rs. 25,000/- towards mental pain and financial agony and Rs. 5,000/- towards litigation charges.
2. The complainant has attached copy of retail invoice no 320 dated 28.04.2011 towards purchase of the subject AC from OP1, copies of service reports/job sheet dated 11.09.2011, 12.09.2011, 21.09.2011, 22.09.2011, 20.03.2012, 22.03.2012, 29.03.2012, 31.03.2012, 13.04.2012 and 26.04.2012 and copy of email dated 26.04.2012 & 27.04.2012 exchanged between complainant and OP2 wherein OP2 granted three months warranty extension from the date of purchase of the subject AC i.e. for fifteen months from 28.04.2011 uptil 28.07.2012.
3. Notice was issued to OPs on 03.05.2012. None appeared on behalf of OP1 and was therefore proceeded against ex-parte vide order dated 06.07.2012.
4. Written statement was filed by OP2 in which it took the preliminary objection that the subject AC was working perfectly ok and therefore no cause of action has arisen since there was no defect therein. OP2, while admitting that while the subject AC was under warranty, it faced problem of condenser coil giving rise to repeated gas leakage due to which the condenser coil was changed on 29.03.2012, stated that the problem in the AC occurred due to improper installation having got done by the complainant from some outsider. OP2 took the defence that the complaint was lodged after extension of warranty period and after the date of extension of warranty, there was no complaint lodged by the complainant with regard to the subject AC during the entire season. OP2 denied any manufacturing defect in the subject AC which was found working fine on inspection by its staff and the condenser coil was changed and warranty extended by OP2 in capacity of it being a consumer friendly company even though the said coil was damaged by some external agency without any fault of OP2. Therefore OP2 prayed for dismissal of present complaint.
5. Rejoinder to the written statement of OP2 was filed in rebuttal by the complainant in which the complainant reiterated his grievance and negated the subject AC having been spoiled by any external agency since the same was installed by OP1 through its employees and from the very installation, the subject AC was found defective requiring repeated repair and is lying in-operational proving “deficient service” on the part of OPs.
6. Evidence by way of affidavit was filed by the complainant in which in addition to the job sheets / service reports from September 2011 to April 2012 already filed alongwith complaint, the complainant placed on record service report no. 6605 dated 24.07.2012 of the subject AC with problem of gas leakage in support of its contention that the subject AC continued to malfunction even during the extended warranty period which was uptil 28.07.2012.
7. Evidence by way of affidavit was filed by OP2 sworned by its area service manager reiterating defence taken in the written statement of AC not suffering any defect, wrong installation done by complainant and change of condenser coil and extended warranty service granted by OP2 as a gesture of consumer friendly policy.
8. Written arguments were filed by both complainant as well OP2 in reemphasis of their respective grievance / defence. OP relied upon judgment of Hon'ble Supreme Court in Maruti Udyod Ltd. Vs Sushil Kumar Gabgotra and judgment of Hon’ble NCDRC in R. Bhaskar Vs D.N. Udani, Hira Lal Vs MGF Toyota Gurgaon and Tata Motors Vs Sharad and Anr. in support of its defence.
9. We have heard the rival contention of both the parties and have thoroughly perused documentary record placed on record.
10.  Two keys issues are framed for consideration and adjudication in the present matter :

1. Whether there was any manufacturing defect in the subject AC and  deficiency on the part of OP1 & OP2 in rectification of the defect therein and
2. Apportionment of liability / fastening of liability on OPs and compensation payable, if any and quantum

1. As regards the first issue, from perusal of documents placed on record by the complainant and as per admission of OP2 in its written statement and evidence by way of affidavit, the subject AC was found suffering from problem repeated of gas leakage and the condenser coil was found defective and was replaced in March 2012. The inference which is drawn from several job sheets from September 2011 to April 2012 reporting repeated gas leakage problem and condenser coil changed is that the subject AC worked barely for four months from the date of purchase when the first complaint was logged in September 2011 and thereafter repeatedly for nine times till April 2012 and even during extended warranty period in July 2012 which falsifies the defence taken by OP2 that there was no complaint regarding the AC after the extended warranty period lodged by the complainant. The complainant had reported constant gas leakage problem in the AC and the OP2 acknowledged the condenser coil of the said AC suffering from defect as per its own service engineer report dated 29.03.2012. The Hon’ble National Commission in Sony Ericssion India Ltd. Vs Ashish Aggarwal (2017) IV CPJ 294 (NC) held that the fact that the component of the new phone had to be changed proved deficiency on the part of OP and upheld the decision of Hon’ble State Commission ordering refund of the consideration amount paid by the complainant for purchase of handset. Therefore appreciating the facts of the case and documentary evidence placed on record, this issue is decided in the favour of the complainant and against OP1 & OP2 in as much as we are of the view that the subject AC suffered from the manufacturing defect which could not be rectified despite repeated gas filling and condenser coil changed since even till extended warranty period, the subject AC continued to suffer from gas leakage problem and OP2 could neither rectify the same nor could replace or refund its price befitting the situation despite the AC being rendered beyond repair. From the bare perusal of the repeated and innumerous complaints lodged by the complainant with respect to the subject AC, it leaves no room for doubt that the AC in question was defective machine supplied by OP1 and OP2 which suffered repeated gas leakage problem during the warranty period and the defects were also not repaired to the satisfaction of the complainant despite condenser coil changed and extended warranty granted by OP2. The Hon’ble National Commission in the judgment of Rellech Bio Chemical System Vs Amulya Kumar Behara (Dr.) (2007) IV CPJ 388 (NC) had in a similar case upheld the order of the lower Fora holding the OPs guilty of deficiency of service in having failed to render service within warranty period. The judgments relied upon by OP2 therefore are not applicable in the present case.
2. As regards the second issue of apportionment of liability. The Hon’ble Supreme Court in landmark judgment of Jose Philip Mampillil Vs. Premier Automobiles Ltd. AIR 2004 SC 1529 held that for manufacturing defect, manufacturer and dealer are jointly and severally liable. The Hon’ble National Commission has also held this view in catena of judgment viz Prabhat Kumar Sinha Vs Nitish Kumar III (2016) CPJ 239 (NC) in which the Hon’ble National Commission held that the petitioner being the seller of a defective computer under warranty was under obligation either to rectify the defects or to replace the computer or refund the consideration amount received. The Hon’ble National Commission in Ashoke Khan Vs. Abdul Karim (2006) 1 CPR 173 (NC ) held that for wrong committed by agent or dealer, consumer is entitled to have reimbursement from manufacturer and dealer as their liability is joint and several. So far as the liability of the manufacturing company is concerned, it is the issue between the manufacturing company and the dealer for which the respondent cannot be made to suffer. The Hon’ble National Commission in Kirloskar Oil Engineers Ltd Vs M. Lokesh 2003 (1) CPR 192 (NC) upheld the concurrent findings of Hon’ble State Commission and District Forum holding manufacturer and dealer jointly and severally liable for deficiency of service in failure to rectify the defects in the generators manufactured by OP. The Hon’ble National Commission in the judgment of JNP Agro Systems Pvt Ltd Vs K.K.Jose 2001 (3) CPR 53 (NC) held that complainant could not be made to suffer for problems between dealer and manufacturer. Therefore in light of the settled proposition of law, the liability towards the complainant of dealer and manufacturer is joint and several. An agent who sales a product,is duty bound to ensure its quality and if the product is found defective, agent shall be vicariously liable for the loss caused to the purchaser, alongwith the manufacturer of the product. This view was held by Hon’ble National Commission in Emerging India Real Assets Pvt Ltd. and ANR Vs. Kamer Chand and anr in RP no 765/16 decided on 30.03.2016. In view of settled proposition of law, as discussed exhaustively in the aforementioned judgment of Hon’ble Supreme Court and Hon’ble National Commission, liability of both OPs is joint and several and coextensive qua the complainant. This issue is therefore decided in favour of complainant holding both OPs jointly and severally liable for deficiency of service.

11.  In the present case in view of the permanent deficiency in the functioning of subject AC which could not even last one summer, requiring repeated repairs as admitted even by OP2 company and still not working satisfactorily, we are of the considered opinion that the OP1 & OP2 are guilty of deficiency of service in having sold the inherently defective AC in capacity of dealer and manufacturer respectively to the complainant and therefore jointly and severally liable for the same.
12. We therefore direct OP1 & OP2 jointly and severally to refund      Rs. 24,500/- to the complainant towards cost of the defective split AC. We further direct both OPs jointly and severally to pay a sum of     Rs. 7,000/- as compensation for mental pain and financial agony and Rs. 3,000/- towards litigation charges to the complainant.
13.  Let the order be complied with by both OPs within 30 days of receipt of copy of this order.
14.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
15.   File be consigned to record room.
16.   Announced on  25.03.2019

 

(N.K. Sharma)      President

(Sonica Mehrotra)  Member