Punjab

Ludhiana

CC/19/225

Sarita Dhir - Complainant(s)

Versus

M/s Onida MIRC Electronics Ltd. - Opp.Party(s)

Jishu Dhir Adv.

25 Apr 2024

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:  225 dated 13.05.2019.                                                       Date of decision: 25.04.2024. 

 

Savita Dhir @ Savita Dheer aged 63 years wife of Sh. Inder Jit Dhir, Resident of Villa No.171, Eldeco Estate One, G.T. Road, Beside Malhotra Resorts, VPO Hussainpura, Ludhiana (Mob. No.94633-94632)                                                                                                                              ..…Complainant

                                                Versus

1. M/s. Onida MIRC Electronics Ltd., Onida House, G-1, M.I.D.C., Mahakali Caves Road, Andheri (E), Mumbai-400093 India, Through its Director/Managing Director.
2. M/s. Novelty Air Conditioners, Bank Road, Shop No.2, Near Kailash Cinema, Civil Lines, Ludhiana, Punjab through its Proprietor/Partner.
3. M/s. Onida Service Centre, 3761/1, Bindra Complex, Jawaddi Road, Model Town Extension, Ludhiana-141001, Punjab, through its Director/Managing Director.

…..Opposite parties 

Complaint Under Section 35 of the Consumer Protection Act, 2019.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Jishu Dhir, Advocate.

For OP1                         :         Sh. Shashi Kant Verma, Advocate.

For OP2 and OP3          :         Exparte.

 

 

 

ORDER

PER MONIKA BHAGAT, MEMBER

1.                In brief, the facts of the case are that the complainant purchased one Air Conditioner Make Onida-S AC bearing HSN/SAC No.8415 from OP2 vide invoice No.1570 dated 24.06.2018 for Rs.25,625/-. OP1 is the manufacturer of the air conditioner. While purchasing the air conditioner, OP2 allured the complainant that the AC is of high quality, having no match with any other AC or company in the market and also assured to provide best after sale service for AC for a period of five year with money back warranty from 24.06.2018 to 24.06.2019. OP2 also issued warranty certificate along with terms and conditions. The complainant stated that she started using the AC but she noticed that the AC has a defect as it stopped working completely just after sometime. She called the OPs for having technically critical defect due to which the AC was not working properly and it was not adequate and also lodged complaint with OP2 vide complaint No.807E406380234.  The technician detected the defect of leakage of gas and took away some interior parts of AC and after sometime reinstalled the parts in the Act but the defect was not detected by authorized technician/engineer of service station. The complainant further stated that she approached the OPs due to said defect and OP2 took photographs of the AC along with photocopy of bill and asked her to come after one week but OP2 did not give proper response and after one month told the complainant that they cannot repair the AC as it is not in position to repair as it has manufacturing defect which is responsibility of the company to replace the same. The complainant got registered several complaints to Onida Service Station telephonically and personally but no action was taken. Rather OP3 showed its incapability to remove the defect stating that “Gas leakage issue is the responsibility of dealer and not the service station.” The complainant time and again requested the OPs to remove the defect or to replace the AC but they did not accede to her genuine request which amounts to deficiency in service on their part due to which the complainant suffered mental pain, torture and agony etc.  The complainant sent legal notice dated 03.04.2019 upon the OPs but to no effect. Hence this complaint whereby the complainant has prayed for issuing direction to the OPs to give fresh air conditioner and also to pay compensation of Rs.4,50,000/-.

2.                Upon notice none turned up on behalf of OP2 and OP3 and as such, OP2 and OP3 were proceeded against exparte vide order dated 18.07.2019 and 09.06.2022 respectively.

3.                However, OP1 appeared and filed written statement and assailed by complaint by taking preliminary objections on the ground of maintainability; lack of cause of action; non-joinder and mis-joinder of parties; lack of limitation; suppression of material facts etc.

                   On merits, OP1 reiterated the crux of averments made in the preliminary objections and facts of the case. However, OP1 stated that after lodging the complaint with their call centre, the independent after sales service provider caused an technician to attend the premises of the complainant, who inspected the product and on inspection found that gas was required to be refilled and consequently gas was refilled by the technician and the product was demonstrated to be working fine but the complainant refused to sign the job sheet. Even a fitting reply was sent by manufacturing company i.e. MIRC Electronics Ltd. and the complainant has suppressed this fact. OP1 stated that it has committed no deficiency in service and prayed for dismissal of the complaint.

4.                In evidence, the complainant tendered her affidavit as Ex. CA and reiterated the averments of the complaint. The complainant also placed on record documents Ex. C1 tax invoice dated 24.06.2018, Ex. C2 is the copy of legal notice dated 03.04.2018, Ex. C3 to Ex. C5 are the postal receipts and closed the evidence.

5.                On the other hand, the counsel for OP1 tendered affidavit  Ex. RA of Sh. Mandeep Garhwal, Area Service Manager of MIRC Electronic Limited, Andheri (East), Mumbai along with documents Ex. R1 is the copy of Authority Letter, Ex. R2 is the copy of job sheet and closed the evidence. 

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, affidavit and annexed documents and written reply along with affidavits and documents produced on record by both the parties. We have also gone through written arguments submitted by the complainant as well as OP1.

7.                It is an admitted fact of this case that on 24.06.2018, the complainant purchased an air conditioner Onida-S 1.5 Ton from OP2 vide invoice Ex. C1. The said air conditioner is manufactured by OP1 and OP3 is an authorized service station of OP1 company. It is further an admitted fact that the said air conditioner developed some snags which were rectified by the OPs from time to time after receiving complaints from the complainant. However, as per the averments of the complainant mentioned in the complaint, there is manufacturing defect in the air conditioner in question which the OPs failed to remove/rectify the same as such, she has prayed for replacement of the defective air conditioner in question with new air conditioner. The complainant has not produced any record regarding lodging of complaints through Emails, messages etc. Rather OP1 in its evidence has produced job sheet Ex. R2, in which the detail of complaints attended by their technician is given. As per Ex. R2 the very first complaint was lodged on 24.06.2018 by the complainant. The extract of detail of the complaints as per job sheet Ex. R2 is reproduced as under:-

Sr. No.	Customer name	Complaint registration date	Call status	Pending reason	Tech. remarks
1.	Mrs.Savita Dheer	24.06.2018	Cancelled	Complaint cancelled	Complaint forwarded to main branch
2.	Mrs.Savita Dheer	24.07.2018	Closed	Feedback through mobile app	Call attended by main branch
3.	Mrs.Savita Dheer	08.10.2018	Closed	Feedback through mobile app	Gas leakage problem ok
4.	Mr.Pardeep	08.11.2018	Closed	Feedback through mobile app	Gas change set done
5.	Mrs.Savita Dheer	04.02.2019	Closed	Set O.K.	Evaporator coil replaced set OK
6.	Mrs.Savita Dheer	24.06.2019	Closed	Feedback through mobile app	Call closed as instruction sumit ji legal case under
7.	Mrs.Savita Dheer	27.06.2019	Cancelled	Complaint Cancelled	Set ok call on phn
8.	Mrs.Savita Dheer	05.01.2020	Closed	Feedback mobile app	Wire arjest set dune
9.	Mrs.Savita Dhir	05.01.2020	Closed	Feedback through mobile app	Wire arjest set dune
10.	Mrs.Savita Dhir	05.01.2020	Closed	Feedback through mobile app	Wire arjest set dune

 

8.                Perusal of Ex. R2 shows that the complainant lodged 4 (four) complaints in the year 2018, 3 (three) complaints in the year 2019 and 3 (three) complaints in the year 2020. The last complaint regarding defect in the air conditioner was lodged by the complainant on 05.01.2020. Moreover the complaint was filed on 13.05.2019 and only complaints on three occasions i.e. on 24.06.2019, 27.06.2019 and 05.01.2020 i.e. during pendency of the complaint were lodged but thereafter, no complaint regarding working of the air conditioner was lodged by the complainant till date and this fact shows that the air conditioner in question is working properly. Further the details of Ex. R2 shows that each and every time the complaints lodged by the complainant were duly attended and rectified by the technician/mechanic of the OPs free of costs and  to the satisfaction of the complainant.

9.                The counsel for OP1 contended that the complainant got installed the air conditioner in question from some local dealer/mechanic. Even the complainant refused to sign the job card despite the rectification of defects in the air conditioner to her satisfaction.

10.              The complainant has failed to produce any record regarding lodging of complaints with the OPs nor she has produced the warranty card. Further these complaints in the air conditioners appears to be normal wear and tear which were promptly attended and redressed by the OPs as and when the complainant raised any complaint. Even otherwise, the initial burden to the defect in the product was on the complainant, which she has failed to prove.

11.              In this regard, reference can be made to SGS India Ltd. Vs Dolphin International Ltd. in Civil Appeal No.5759 of 2009 decided on 06.10.2021 (LL 2021 SC 544) by the Hon’ble Supreme Court of India whereby it has been held as under:-

’19.  The onus of proof of deficiency in service is on the complainant in the complaints under the Consumer Protection Act, 1986. It is the complainant who had approached the Commission, therefore, without any proof of deficiency, the opposite party cannot be held responsible for deficiency in service.

In the above cited case, the Hon’ble Supreme Court of India has placed reliance on its own judgment reported as Ravneet Singh Bagga v. KLM Royal Dutch Airlines & Anr. whereby it has been held that the burden of proving the deficiency in service is upon the person who alleges it. “6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent.”

‘20. This Court in a Judgment reported as Indigo Airlines v. Kalpana Rani Debbarma & Ors. (LL 2021 SC 544) held the initial onus to substantiate the factum of deficiency in service committed by the opposite party was primarily on the complaint. This Court held as under:-

“28. In our opinion, the approach of the Consumer Fora is in complete disregard of the principles of pleadings and burden of proof. First, the material facts constituting deficiency in service are blissfully absent in the complaint as filed. Second, the initial onus to substantiate the factum of deficiency in service committed by the ground staff of the Airlines at the airport after issuing boarding passes was primarily on the respondents. That has not been discharged by them. The Consumer Fora, however, went on to unjustly shift the onus on the appellants because of their failure to produce any evidence. In law, the burden of proof would shift on the appellants only after the respondents/complainants had discharged their initial burden in establishing the factum of deficiency in service.”

In the given facts and circumstances, the complainant has failed to prove the deficiency in service on the part of the opposite parties by any cogent and convincing evidence.

12.              As a result of above discussion, the complaint is hereby dismissed being devoid of any merits. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.        

13.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

 

(Monika Bhagat)                              (Sanjeev Batra)               Member                                         President  

Announced in Open Commission.

Dated:25.04.2024.

Gobind Ram.