Haryana

Panchkula

CC/401/2019

DHEERAJ SINGLA. - Complainant(s)

Versus

M/S K.L MARKETING. - Opp.Party(s)

SUDHIR GUPTA.

14 Jul 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA.

 

                                                       

Consumer Complaint No	:	401 of 2019
Date of Institution	:	08.07.2019
Date of Decision	:	14.07.2023

 

Dheeraj Singla son of Sh.D.P.Singla, resident of House No.881-H, Sector-21, Panchkula-134116.                                                                                                                               ..….Complainant

Versus                                                                  

1.     M/s K.L.Marketing, DSS-97, Sector-5, MDC, Panchkula(Haryana)        through its Proprietor/Partner.

2.     M/s Air Cooling Solutions, Daikin Authorised Service Centre, Plot         no.92, Makhan Majra Road, Village Dariya, Chandigarh through       its Manager, Pin Code-160101.

3.     Daikin Air Conditioning India Private Limited, 292, 1^st Floor, Sub City Centre, Sector-35-D, Chandigarh-160035, through its Branch Manager.                                                                                                                                                         ……Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

 

Before:              Sh. Satpal, President.

                        Dr. Sushma Garg, Member.

                        Dr. Barhm Parkash Yadav, Member. 

 

 

For the Parties:   Sh. Sudhir Gupta, Advocate for the complainant.

                        Sh. V.K.Dewan, Advocate for the OP No.1.

                        None for OP No.2.

                        Sh. Vaibhav Jain, Advocate for the OP No.3.

 

ORDER

(Satpal, President)

1.             Briefly stated, the facts, as alleged in the present complaint, are that two air-conditioners i.e. GTL50TV16U2 DAIKIN 1.5 TR 3 STAR No.0000681-0000689 & 0002389-0002426 and one stabilizer were purchased by the complainant from OP No.1 by making the payment of Rs.66,800/- in cash. The air conditioners were installed by engineers of the OP no.2 on 22.05.2018 itself. It is averred that after few hours fr0m installation of the air-conditioners, the gas had got leaked and the AC had stopped working. The engineers were sent by the OP’s on 28.06.2018 to check the issue, who found that there was leakage of gas. Thereafter, on 30.06.2018, the OPs engineers again visited the residence-cum-office to rectify the gas leakage defects in the AC. On 10.04.2019, the same problem again was found in the AC’s and accordingly, the Ops were informed through email and their technical persons visited the residence-cum-office of the complainant on 10.04.2019 and diagnosed the fault of both the ACs. It is averred that the several complaints were lodged qua the defects in the AC’s, in response to which, the OPs had issued several reports i.e. 23.05.2019, 25.05.2019, 28.05.2019, 29.05.2019 and 31.05.2019. It is alleged that the ACs sold by the Ops to the complainant were having inherent manufacturing defects. It is alleged that the technical persons of Ops attempted, on numerous occasions, to repair the defects but failed to resolve the issue.  Due to the act and conduct on the part of the OP, the complainant has suffered a great mental agony, physical harassment and financial loss; hence, the present complaint.

2.             Upon notice, the OP No.1 has appeared through its counsel and filed written statement contesting the complaint by raising preliminary objections.  It is submitted that the OP No.1 was an authorized retail agent of OP No.3 in the year 2019 and as a retail agent, the OP No.1 had neither any role in the manufacture of the air conditioners nor any role in their installation, servicing and operationalizing. The ACs in question were installed by the authorized service centre of OP No.1. The OP No.1 is covered under the definition of an agent and is not liable for any act done on behalf of the principal i.e. OP No.3. It is submitted that the Consumer Protection Act, 2019 specifically enumerates the provisions relating to product liability under Chapter VI of the said Act. The Section 86 & Section 87 of the said Consumer Protection Act, 2019, provides the exceptions to product liability action.  The allegations set out in the present complaint clearly do not reveal any of the circumstances, which was covered under the aforementioned Sections and therefore, the present complaint qua the OP No.1, is liable to be dismissed. It is submitted that the role of OP No.1 was limited only to the extent of receiving the price of the product and to ensure the delivery of the product to the purchaser. It is stated that the OP No.1 has no liability qua manufacturing defect, installation or any other after sale services relating to the product. The OP No.1 has now no relation of principal and agent with OP No.3 since 2019 as the OP No.1 has given up the retail agency business. Even the GST number qua retail business has also been surrendered. It is specifically denied that any mis-representation as alleged by the complainant was made by OP No.1. The OP No.1, simply acting as an intermediary between the company and the complainant sold the air conditioning units to the complainant as were received by it from the manufacturing company. Since it is the claim of the complainant himself that the air conditioners have some manufacturing defect, no liability, whatsoever, can be imposed upon the OP No.1. Under these circumstances, the claim of the complainant qua the OP No.1 is not maintainable and the same is liable to be set-aside. It is submitted that not a single email was ever addressed by the complainant to the OP No.1. On merits, pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OP No.1 and as such, the complaint of the complainant is liable to be dismissed.

                Upon notice, the OP No.2 has appeared through its authorized representative on 03.02.2022 and filed its written statement mentioning that earlier it was service centre of OP No.3 but presently it is not working as service centre on behalf of the OP no.3. It is admitted that the complainant had purchased ACs in question from OP No.1 on 22.05.2018. It is admitted that necessary service was provided to the complainant qua the ACs in question and the job-sheets were provided to the company. 

                Upon notice, the OP No.3 has appeared through its counsel and filed written statement contesting the complaint by raising preliminary objections. It is submitted that as per clause 17 of warranty conditions, courts at Delhi alone have exclusive jurisdiction in the event of any dispute. It is submitted that there is no expert report in favour of the complainant as required as per provisions of C.P. Act. It is submitted that as per warranty conditions, only replacement of the defective parts is permissible and not the replacement of the entire unit or the refund of the purchase price of product. It is admitted that the complainant on 22.05.2018 had purchased two air conditioners i.e. GTL50TV16U2 Daikin 1.5 TR 3 Star serial no.0000689-000681 & GTL50TV16U2 Daikin 1.5 TR 3 Star serial no.0002389-0002426, which are manufactured by the OP No.3. The warranty of the said AC had expired on 21.05.2019. It is submitted that first complaint for one AC was received from the complainant on 28.06.2018, which was attended properly by the team of qualified and trained technician. After thorough inspection of the air conditioners, the technician of the OP No.3 found that there was minor leakage in the flair nut. It is submitted that “Flair Nut’ is a joint, which connects outdoor unit with the copper pipe carrying the refrigerant. There are various circumstances, where an issue like leakage in the flair nut, can happen like wind, environmental conditions, animal etc. The technician conducted the nitrogen testing, which is required to encounter any internal leakage and filled the refrigerant to make the unit functional again. It submitted that, during the entire year 2018, no complaint was received from the complainant, which clearly proves that the ACs were working in proper condition. The complainant again registered another complaint in the month of April 2019 but upon inspection, no leakage/internal defect was found. On 31.05.2019, the ACs were checked and found correct. On 2^nd July 2019 again, the technician checked the AC and found the same in proper condition and within permitted operational parameters. It is submitted that the complainant had sent email on 03.07.2019 alleging incorrect facts. There is no defect in the ACs as the same were found working properly during the visits by its technical persons. On merits, pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OP No.3 and as such, the complaint of the complainant is liable to be dismissed.

3.             The learned counsel for complainant has tendered the affidavit as Annexure C/A along with documents Annexure C-1 to C-20 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OP No.1 has tendered the affidavit Annexure R1/A along with documents Annexure R1/1 and closed the evidence. The evidence of OP No.2 is closed by court order vide order dated 13.01.2023. The ld. counsel for the OP No.3 has tendered the affidavit Annexure R-3/A along with documents Annexure R-3/1 to R-3/3 and closed the evidence.

4.             We have heard learned counsels for the complainant and OP No.1 as well as OP No.3, considered the written arguments filed by learned counsels for OP No.1, OP No.3 and gone through the record minutely and carefully.

5.             The question that falls for consideration, is, whether the ACs in question, were having manufacturing defects in them.

6.             The OP no.1 has denied its liability on the ground that it has no role in the installation as well as manufacturing of the product in question. The learned counsel has vehemently argued that the OP No.1 has just acted as an agent of OP No.3, while selling the ACs in question. It is contended that the seller of the product cannot be held liable under the product liability action and thus, the learned counsel has prayed for dismissal of the complaint qua OP No.1.

7.             There is no appearance on behalf of the OP no.2 after 03.02.2022 in the case. Even no documentary evidence has been submitted on its behalf and accordingly, its evidence was closed by the Commission on 13.01.2023.

8.             The OP No.3 has contested the complaint, apart from merits, by raising the issue of territorial jurisdiction of this Commission. The learned counsel on behalf of the OP No.3, relying upon Clause 17 of the warranty terms, has contended that Courts at Delhi alone have the exclusive jurisdiction in the event of any dispute. It is contended that as per ouster clause i.e. 17 of the warranty terms, the present complaint is not maintainable before the Commission at Panchkula. Reliance has been placed on the following case laws:-

1. ABC Laminart P Ltd Vs. AP Agencies MANU/SC/0001/1989 (AIR 1989 SC 1239)
2. Swastik Gases P Ltd. Vs. Indian Oil Corporation Ltd. MANU/SC/0654/ 2013(2013) 9 SCC 32).

 

Further, it is contended that there is no expert report in favour of the complainant and thus, the complaint is liable to be dismissed. In this regard, reliance has been placed on the following caselaws:-

1. Tata Eng. And Locomotive Co. Ltd. Vs. Sunil Bhasin II (2008) CPJ 111(NC)
2. Rakesh Kumar Vs. Parkshit Tractors [2014(3) CPR 670(NC)].

 

Further, it is further contended that the complicated question of facts and laws are involved, which cannot be adjudicated in a summary trial.

9.             The objections raised qua territorial jurisdiction of the Commission are rejected in view of the fact that the ACs in question were purchased from OP No.1 and the same were installed by OP No.2 at the residence-cum-office of the complainant, which is within the jurisdiction of this Commission. Further, the office/shop of Ops No.1 & 2 are admittedly located at Panchkula and thus, the objection qua territorial jurisdiction carries no merits in it. The law laid down in the cases(supra) as relied by the counsel for the OP No.3 is not applicable to the facts of the present case being distinguishable on facts.

10.            Now, coming to the plea of non availability of the expert report, it may be mentioned here that there are several job-sheets on record and thus, there is no need of having any extra report from any outside expert. Further, the plea taken that the complicated facts are involved is also rejected as complaint can be disposed of on the basis of documentary evidence placed on record by the parties.

11.            On merits, the learned counsel has contended that there was no manufacturing defect in the ACs in question as per the reports of its technical persons. It is contended that ACs were got checked from qualified and trained technician, who had reported no defects in the ACs in question and thus, the complaint is liable to be dismissed.

12.            After hearing the rival contentions of the learned counsel for the complainant as well as the learned counsel on behalf of the OP no.1 as well as OP No.3, it is found that the technical person of OP no.2 visited the residence-cum-office of the complainant on several dates and checked the defects in the AC’s as alleged by the complainant. For the sake of convenience and clarity, the details of the visits of the technical persons along with their remarks are tabulated as under:-

Sr. No.	Date of visits	Name of technical person	Report as per job-sheets	Annexure
1	28.06.2018	Gurpret Singh	Gas leakage	C-3
2	30.06.2018	Sehazad Ali	Nitrogen gas changing	C-4
3	10.04.2019	Sandeep Saini	Gas leakage	C-5
4	23.05.2019	Avinash	Gas refilling	C-6
5	25.05.2019	Avinash	Flairs repaired & gas filling	C-7
6	28.05.2019	Avinash	Gas Charging	C-8
7	29.05.2019	Avinash	Gas Top- up	C-9
8	31.05.2019	Sandeep Saini	Gas Top-up	C-10
9	11.06.2020	Harvinder Singh	Gas Charging	C-19

 

13.            A bare perusal of above table would reveal that the complainant was facing the issue of gas leakage in both the ACs in question since the installation of the same. The technical persons as deputed by OP no.2, who is Service Centre of OP no.3, filled up the gas on their every visits and made the ACs functional. As per above table, it is found that refilling of the gas was necessitated on several occasions, which clearly indicates towards some basic defects in the ACs. Even the OP no.3 has admitted in its written statement as well as affidavit (Annexure 3/A) that there was leakage in flair nut, which connects outdoor unit with the copper pipe carrying the refrigerants. Pertinently, the defects in the ACs had begun soon after their installation on 22.05.2018 as refilling of gas was done on 31.05.2018. It is relevant to mention here that refilling of gas, generally, is necessitated  after a  long usage of ACs but in the present case, the refilling was necessitated after a very short interval, which clearly indicates towards certain basic defects in the ACs. In view of the serious gas leakage issue, which the complainant was facing continuously since the installation of ACs in question, it was imperative upon the OPs No.2 & 3 to get the ACs in question inspected from a team of highly qualified engineers, having wide experience. However, the Ops No.2 & 3 had preferred not to get the ACs in question inspected from a team of qualified engineers, having wide experience. Even the affidavits of the said technical persons, namely, Sh.Gurpreet Singh, Sehajad Ali, Sandeep Saini, Avinash and Harvinder Singh, who had inspected the ACs in question on several dates, have not been placed on record by Ops No.2 & 3 in evidence in support of their contentions. The OP No.2, as stated above, has preferred not to file any evidence in support of its contentions. Furthermore, the grievances of the complainant qua defects in the ACs was not resolved despite the fact that a payment of Rs.9,000/- was made by him to Air Conditioning Solution, Mohali, vide job-sheet (Annexure C-19), which is authorized service centre of OP No.3. The aforestated factual position speaks volumes qua the lapses and deficient services rendered by the Ops No.2 & 3, for which they are liable to compensate the complainant. The present complaint is dismissed qua OP No.1 as no deficiency has been found on its part.

14.            Coming to the relief, it is found that the complainant has prayed for replacement of the ACs in question with new one in addition a compensation of Rs.50,000/- on account of mental agony and harassment and a compensation of Rs.22,000/- have also been claimed. In our considered opinion, it would meet the ends of the justice if the OP No.3 is directed to refund the amount of Rs.66,800/- i.e. the purchase price of the ACs along with interest to the complainant. In addition to it the complainant is also entitled to be duly compensated on account of mental agony and harassment suffered by him as well as litigation charges.

15.            As a sequel to the above discussion, we partly allow the present complaint with the following directions against OPs No.2 & 3:-

1. The OP No.3 is directed to refund the amount of Rs.66,800/- along with interest @9% per annum(S.I.) to the complainant w.e.f. the date of filing of the complaint till its actual realization subject to return of the ACs by the complainant  to it(OP No.3).

The OP No.3 is directed to get the ACs in question picked up from the complainant. The complainant is directed to return the ACs to the authorized representative of OP No.3 against proper receipt. 

2. The OPs No.2 & 3 are directed to pay a sum of Rs.10,000/-each i.e. total Rs.20,000/-, to the complainant on account of mental agony and harassment suffered by him.
3. The OP No.3 is further directed to pay an amount of Rs.5,500/- to the complainant on account of litigation charges.

 

16.            The OPs No.2 & 3 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, 2019 against the OPs No.2 & 3. 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 on: 14.07.2023

 

 

 

     Dr.Barhm Parkash Yadav           Dr.Sushma Garg          Satpal

                  Member                        Member                         President

 

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

 

                                             Satpal

                                            President