Haryana

Panchkula

CC/478/2019

M/S GVT BUILDERS AND DEVELOPERS. - Complainant(s)

Versus

M/S IDEAL ELECTRONICS (PANASONIC BRAND SHOP). - Opp.Party(s)

SONIA SAINI.

31 Aug 2022

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA

                                                       

Consumer Complaint No	:	478 of 2019
Date of Institution	:	02.09.2019
Date of Decision	:	31.08.2022

 

 

M/s GVT Builders and Developers, Opposite Delhi Public School Old Kalka Road, Zirakpur, through its authorized person Shri Sunil Kumar.

 

                                                                ….Complainant

Versus

1. M/s Ideal Electronics (Panasonic Brand Shop) through its Prop. SCO No.3 Sector-11, Panchkula.

 

2. Panasonic India Pvt. Ltd. through its Managing Director/Director 12^th Floor, Ambience Island. Near National Highway-8, Gurgaon, 122002.

 

….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019.

 

Before:              Sh.Satpal, President.

Dr.Pawan Kumar Saini, Member.

Dr.Sushma Garg, Member.

 

 

For the Parties:   Ms. Sonia Saini, Advocate for the complainant.

                        OP No.1 already ex-parte vide order dated                                     24.10.2019.

                        Sh. Chankya Batta, Advocate for OP No.2.

ORDER

(Dr. Pawan Kumar Saini, Member)

1.             The brief facts of the present complaint are that complainant is a firm running under the name and style of M/s GVT Builders and Developers, opposite Delhi Public School, Old Kalka Road, Zirakpur and Shri Sunil Kumar is the authorized person of the firm. Complainant purchased the two Panasonic Split Air Conditioner 1.5 Ton, Model No.LC18UKY for an amount of Rs.31,000/- each including GST etc. vide Bill No.1098 dated 06.02.2019 and Bill No.1099 dated 07.02.2019 from the opposite party No.1 and it was assured to the complainant that there will be no problem in use of the said Air Conditioner and it was also assured that the same is having one year full guarantee and five years warranty for compressor of the said ACs. After the installation of the said ACs in the month of February, 2019, the complainant switch on the said ACs on 29.05.2019 and he noticed that the said Air conditioners are not properly cooling and the same are not giving out any air and thereafter, the complainant informed the opposite party No.1 on 30.05.2019 vide complaint No.R300519595987 & No.R130619718267. Thereafter, the OP No.1 sent one of the engineer who put the ice in the Air conditioner and told that the ACs will give the cool air. The said engineer also filled up the gas in the AC vide job sheet dated 04.06.2019 and he further disclosed to the complainant that the engineer has not installed the ACs in proper way; hence the ACs were not working properly. Thereafter the complainant again contacted the OP No.1 and told about the said problem and then the Engineer of the OP No.1 visited 3-4 times to the complainant from 29.05.2019 to 15.06.2019, but despite that the said problem could not be removed and neither the said engineers have issued job sheet in this regard and rather charged the amount of their visit. Not only this on 15.06.2019, one Shri Chirag Jain, Area Manager assured the complainant to replace the same with new one but despite the repeated request, no step has been taken in this regard. Thereafter, the complainant send an E-mail dated 22.06.2019 to the OP No.1 to replace the defective Air conditioners with New Acs but all in vain and no step has been taken in this regard to redress the grievance of the complainant despite of various e-mails dated 30.05.2019, 31.05.2019 and 13.06.2019 of the complainant and due to the illegal act of the Ops, the complainant is facing a great hardship due to high temperature and hot summer days. Op No.1 is the authorized dealer of the Op No.2 and the opposite party No.2 is the manufacturer of the said Air Conditioners and as such the Ops are jointly and severally liable to compensate the complainant and to replace the defective ACs with new one. Due to the act and conduct of the Ops, the complainant has suffered a great deal of financial loss and mental agony, harassment, torture for which the Ops are liable to compensate the complainant. The complainant had also served two legal notices dated 13.07.2019 & 31.07.2019 upon Ops with the request to replace the said defective Air conditioners with new one and to pay an amount of Rs.20,000/- on account of mental agony, harassment, torture and inconvenience etc., within a period of 7 days from the date of receipt of the legal notice and the said legal notice was duly served upon the Ops and after the receipt of the legal notice, the OP No.2 had sent the reply to the legal notice vide dated 31.07.2019 received by the counsel of the complainant in the first week of August, 2019. Thereafter, the complainant filed a complaint under Section 12 of Consumer Protection Act, 1986 against the Ops however, later on the said complaint was dismissed as withdrawn with liberty to file afresh vide order dated 19.08.2019. Due to the acts and conduct of the OPs, the complainant has suffered a great mental agony, harassment and financial loss; hence, the present complaint.

2.             Notice was issued to the OPs No.1 & 2through registered post(vide registered post No.CH04936618IN and CH04936624IN on 20.09.2019 to OPs No.1 & 2 respectively, which was not received back either served or unserved despite the expiry of 30 days from the issuance of notice to OP No.1; hence, it was deemed to be served and thus, due to non appearance of OPs No.1 & 2, they were proceeded ex-parte by this Commission vide its order dated 24.10.2019. Vide order dated 14.02.2020, the Hon’ble State Commission has allowed the revision petition by setting aside the ex-parte order dated 21.10.2019 passed by this Commission(earlier known as Forum) and directed the OP No.2 to pay the cost of Rs.5,000/- to the complainant.

                Upon notices OP No.2 appeared through counsel and filed written statement raising preliminary objections qua complaint is not maintainable, concealment of facts, no cause of action etc. Further it is alleged that the complainant is a commercial organization carrying on business for profit and gain and the product in question was purchased for being installed at Commercial Premises and thus, the complainant is not a consumer. On merits, it is stated that as averred by the complainant, the service call raised vide job sheet No.R300519595987 dated 30.05.2019 w.r.t. one unit only with Serial No.18CPRJADN- U07613 for which the technician performed general service and made the unit in perfect condition. The call for service raised on 04.06.2019 vide job sheets No.R040619641036 & R040619621038 for both the models were serviced by the technician by filing up the gas and the units were made “OK”. During 29.05.2019 to 15.06.2019, three calls for service have been raised, i.e. 30.05.2019, 04.06.2019 and 13.06.2019. The technicians have visited the premises of the complainant on every call i.e. 30.05.2019, 06.06.2019 and 14.06.2019 respectively. The technicians have inspected both the units for which job sheets have been issued on 30.05.2019, 06.06.2019 and 14.06.2019. Further submitted that on 13.06.2019, two service calls vide job sheet No.R130619718267 and R130619718271 were raised for both the units. The technician visited the premises of the complainant and after inspection, the said units were said to be working OK. The service Engineer also observed that the room size was bigger(280 sq. feet). No liability arises as there is no defect/problem in the air conditioner units. It has been shown through various job sheets that the reason the complainant is unable to feel proper cooling by the unit in the room is because of the size of the room of the complainant. It is stated that as per the technical team, the room size where the air conditioner unit is installed is nearly 280 sq. feet with a big glass window approx. 10X12 feet on the wall due to which the complainant is feeling less cooling by the said unit. It is also submitted that a 1.5 ton unit air conditioner usually provides cooling impact for approximately 150 sq. feet area. The same has also been conveyed to the complainant vide job-sheet serial no.R130619718267 & R130619718271 dated 14.06.2019. There has been no deficiency in services on the part of the OP no.2 as technicians have inspected, serviced and issued job sheets for every service call made by the complainant. Further denying rest of allegations made by the complainant in his complaint prayed for dismissal of the present complaint with costs.

3.             To prove the case of the complainant, Ld. Counsel for the complainant has tendered affidavit as Annexure C/A along with documents Annexure C-1 to C-11 in evidence and closed the evidence by making a separate statement. In additional evidence Ld.counsel for the complainant tendered documents Annexure C-11 to C-12 and closed the additional evidence. On the other hand, the ld. counsel for the OP No.2 tendered affidavit as Annexure R2/A along with documents Annexure R2/1 to R2/8 and closed the evidence.

4.             We have heard learned counsels for the parties and gone through the record available on file including written arguments filed by the complainant as well as OP no.2, minutely and carefully.

5.             The grievance of the complainant is that air conditioner purchased by it vide invoice No. 1098 dated 06.02.2019(Annexure C-1) and 1099 dated 07.02.2019(Annexure C-2) have failed to perform its basic function of cooling.

6.             The OP No.2 has contested the complaint by raising preliminary objections as well as on merits in the written statement. It is contended that the complainant is not a consumer as the complainant is a Commercial Organization carrying on business for profit and gain and the product in question was purchased for being installed at Commercial Premises.

7.             The said objection is rejected in the light of the fact that the ACs in question undisputedly were installed at residential House No.217-A, Sector-25, near Market Sector-8, Panchkula, Haryana, wherein no commercial use of ACs was being made.

8.             On merits, the OP No.2 has denied any manufacturing defect in the air condition. While admitting the visits of its Engineer on 04.06.2019 and 10.08.2019, to the premises of the complainant regarding inspection and checking of the ACs in question, the OP No.2 has stated that as per the technical team, the room size, where the air condition units were installed, is nearly 280 sq. feet with a big glass window approximately 10X12 feet on the wall, due to which, the complainant is feeling less cooling by the said unit. It is contended that a 1.5 ton unit air conditioner usually provides cooling impact for approximately 150 sq. feet area. It is further contended that the complainant has been duly conveyed regarding the bigger size of the room vide job sheet No.R130619718267 and R130619718271 dated 13.06.2019 (Annexure R-2/4).

9.             It is further contended that when a part of a product is repairable then the whole of the product is not liable to be replaced. In this regard, reliance has been placed on the following case laws:-

1. Tata Engineering & Locomotive Co. Ltd. & Anr. Vs. M.Moosa reported as 1994(3) CPR  II 395.
2. S.K.Aggarwal Vs. Godrej Ge Appliances reported as II(1997) CPJ 341(Del)
3. Tapan Kumar Chakraborty Vs. Expo Machinery Limited reported as II(1994) CPJ 517(WB)

 

10.            The aforementioned plea denying any manufacturing defect in the ACs in question is not tenable. Undisputedly, the ACs were installed by the technical persons of the OPs in the premises of the complainant in the month of February, 2019. It is also not disputed that the defects appeared in the working of the AC in the beginning of the summer season and in this regard, the technical person visited the premises of the complainant on 30.5.2019 & 04.06.2019 in pursuance to the complaint lodged by the complainant on 30.05.2019. The general service was necessitated within a very short period, which proves that there was some defect in the air conditioner. Thereafter, the technicians visited the premises vide job sheet No. R040619641036 (Annexure C/3/R-2/3,) & R040619641038 (Annexure C-4) and checked both the models and made the units functional by refilling the gas. It is pertinent to mention here that refilling of gas is generally required after a very long period and in the present case, refilling was necessitated in a very short span of time, which makes it clear that there was basic defect in the working of the ACs. Thereafter the problem arose on 06.06.2019 and 14.06.2019 and the technical person visited the premises and reported vide job sheet about the bigger size of the room. It is pertinent to mention here that the ACs were checked on 30.05.2019 and 04.06.2019 by Mana Khan, technical person and thereafter, on 13.06.2019 by Shri Naresh Sharma, but there is no documentary evidence in the shape of affidavit of the aforesaid technical person in favour of the Ops. Moreover, none of the technical person, who visited the premises mentioned  about  the details of air density. The technical person, namely, Mana Khan visited the premises twice, but did not point about the bigger size of the room. Moreover, the assertions of the opposite party with regard to the functioning of the ACs stands negated and nullified in view of the observations and findings made by its Engineer namely Rajesh Kumar, who inspected the said ACs vide job sheets(Annexure C-11 and C-12). The said Engineer has specifically pointed out that split ACs were not giving proper cooling and the same were not repairable and further temperature was not maintainable.

11.            The OP No.1 did not file its written statement controverting and rebutting the contentions of the complainant so the contentions made by the complainant go unrebutted and uncontroveted.

12.            In view of the above discussion, we have no doubt with regard to the manufacturing defect in the AC’s in question; hence we conclude that there were lapses and deficiencies on the part of the OPs No.1 & 2 while rendering services to the complainant. The Ops No.1 & 2 are liable jointly and severally to compensate the complainant.   

13.            As a sequel to the above discussion, we partly allow the present complaint with the following directions to the OP No.1 & 2:-

1. To refund a sum of Rs.62,000/- to the complainant, along with interest @ 9% per annum w.e.f. the date of filing of the complaint till its realization subject to return of both ACs to the OPs.
2. To pay an amount of Rs.5,000/- to the complainant on account of mental agony and harassment.
3. To pay an amount of Rs.5,500/- as cost of litigation charges.

 

14.            The OPs No.1 & 2 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1 & 2. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced: 31.08.2022

 

        Dr.Sushma Garg         Dr. Pawan Kumar Saini         Satpal      

            Member                     Member                         President

 

Note: Each and every page of this order has been duly signed by me.

 

                                          Dr. Pawan Kumar Saini     

                                                Member