Present     (1)   Sri Nisha Nath Ojha

                              District & Sessions Judge (Retd.)

                         President

                      (2)   Sri Sheo Shankar Prasad Singh,

                               Member

         Date of Order- 10.06.2015

                                                   ORDER

 Nisha Nath Ojha

1. The complainants have sought following reliefs:-

1. To pay Rs. 5,00,000/-(Five lakh only) nine thousand five hundred only) as damage for aforesaid Air Condition with panel interest @ 24% per annum.

1. The complainant has made following averment and              submissions in his complaint petition:-

1. The petitioner purchased a 1.5 ton Air Conditioner of Voltas Company from its authorized dealer, Opposite Party No. 1. The purchase was made on 30.04.2009 by paying entire payment for the machine and was requested that the installation of the machine by the mechanic of the company be made forthwith, along with all other required accompaniment, including adequate stabilizer. The petitioner being a non – technical man could not and did not know about capacity of the stabilizer. He was advised by Opposite Party no. 1 that a 4 K.V.A. stabilizer of Voltas Company will be sufficient to run his Air Conditioner.
2. However, the installation was not made on that day or the next day and on repeated telephonic persuasion it was made on 04.05.2009 at 8 P.M. by the man of Opposite Party no. 1 who granted a delivery challan which is annexed with the petition.
3. After installation, when the petitioner started to operate the Air Conditioner it was found that just after 5 to 15 minutes it went dead and stopped functioning. Again the petitioner made frantic calls to set the matter right. He even personally went there and approached the Opposite Party No. 1 and every time he gave assurance that today it will be looked and set right. The petitioner requested for receipt of the payment for machinery was not being given with assurance that he will be given machine. Ultimately on 18.05.2009 the Opposite Party No. 1 granted such a receipt but did not send the mechanic.
4. This situation prevailed for a month and thereafter the petitioner was forced to run from pillar to post and vesting money on the telephone calls and visit to the shop. Ultimately the mechanic of the Opposite Parties, whose name was Raju, come to the residence of the petitioner on 20.06.2009 and on examination of the machinery he reported that although the machine was in good running condition but the stabilizer was inadequate and that could be changed to 4 K.V.A. to 5 K.V.A.
5. Immediately after the visit of the mechanic on 20.06.2009, on the same day the petitioner went to Opposite Party No. 1 and requested him to change the stabilizer from 4 K.V.A. to 5 K.V.A. and he shall pay extra money if it is installed on that very day. The Opposite Party No. 1 put the matter off on the ground of non – availability of the 5 K.V.A stabilizer in his stock and he said that immediately he will be get it from the company and get it installed very soon. The petitioner kept reminding him every day on his telephone numbers 0612 – 6420815, 9934778468 and 9835053958 which was provided by the Opposite Party no. 1.
6. The petitioner called a toll free call no. 09Ju 223695 run and maintained by the company. Petitioner was allotted his customer I.D. No. C0001818. They assured the petitioner that needful will be done promptly preferably on the same day. Nothing was done and every day the petitioner continued to remind them i.e 28.06.2009, 29.06.2009 and 30.06.2009 getting the same kind of reply. In the meantime, being exasperated with epithetical attitude of the of the Opposite Parties, the petitioner sent a letter dated 24.06.2009 to Opposite Party no. 1 apprising him the aforesaid facts and repeating his requests to change the 4 K.V.A. stabilizer into 5 K.V.A. capacity and the differences of the cost would be paid by him after the receipt of the same, to his mechanic the letter was sent and served through the courier service.
7. Ultimately on 02.07.2009 the respondents/Opposite Parties sent their mechanic with a 5 K.V.A. stabilizer, he took away 4 K.V.A. stabilizer and realized the differences which was promptly paid to him. At that time the petitioner was absent from his clinic and only his employee was there who granted the receipt after making the payment.
8. From the facts and circumstances it is clear and apparent that the Air Conditioner which the petitioner purchased, finally made operative and workable after more than two months, i.e. 02.07.2009 after the monsoon brought in Patna. During the entire period of sweltering for these two months the petitioner was forced by the Opposite Parties by their aforesaid conduct to bear the agony, as also effecting health, body and mind, his efficiency at work, waste of time harassment and mental agony which is quantified by the petitioner at Rs. 5,00,000/-. However the petitioner files this application for a token damage of Rs. 5,00,000/- only for all aforesaid agonies, loss, inconvenience etc. caused to him by the Opposite Parties.
9. This amount of claim of damage and compensation is payable by the Opposite Parties jointly and / or severally for which they are liable in the eye of law.

2. The Opposite Party No. 1 in his written statement has submitted as follows :-
   1. It is submitted that the complainant is not entitled to raise any complaint or grievances before the Hon’ble Court as he has not come within the preview of bona fide customer of the opposite party and this fact would be clear from the annexure – 2 of the main complaint petition. The total price of the goods is                            Rs. 21,000/- only whereas till date the complainant has paid only Rs. 19,700/- to the opposite party no. 1 and on this score the present complaint is fit to be dismissed.
   2. From the perusal of the complaint petition, it would clear that the complainant as per desire approaches the Opposite Party no. 1 on 30.04.2009 and placed order for supply of one Air Conditioner of 1.5 ton capacity along with one stabilizer of 4 K.V.A. but on that he has not paid the price of goods to the Opposite Party no. 1. The Opposite Party no. 1 supplied the goods to the complainant in good faith without receiving the price of goods and on repeated demands of the dealer the complainant paid the amount in part on 18.05.2009 with an assurance to pay the balance amount later. The Opposite Party no. 1 installed the machine at the residence of the complainant. 
   3. After installation of Air Conditioner this Opposite Party No. 1 for the first time, on receipt of complaint from the complainant, Opposite Party No. 1 deputed his technician to verify the machine and after proper verification the said technician found that there was no any defect in the machine rather there was wiring problem in the electric line, the technician informed the complainant accordingly, after routine service of the machine the report was prepared by the mechanic in presence of the complainant which were counter signed by the complainant himself. This fact would be clear from Annexure 3 of the complaint petition.
   4. Again, on 24.06.2009 the Opposite Party no. 1 received a letter of the complainant in which he requested to change the stabilizer of the Air Conditioner from 4 K.V.A. to 5 K.V.A. but the opposite party no. 1 is not position to provide the required 5 K.V.A. stabilizer to the complainant as the same was out of stock and not available with him but the opposite party no. 1 arranged the 5 K.V.A. stabilizer from the company and handed over within one week i.e. 02.07.2009 to the complainant. This fact would be clear from Annexure 4 and 5 of the main complaint petition.
   5. It is further submitted that there is no any latches or negligent attitude on the part of either the petitioner as well as the Opposite party no. 2 and 3 and the question does not arise with regard to any manufacturing defect in the machine or the stabilizer nor there is any deficiency on the part of the opposite parties of this case including opposite party no. 1.
   6. It is further submitted that whenever this opposite party no. 1 requested with the complainant to pay the balance amounts of the goods which was due from the date of purchase the complainant always avoided the opposite party no. 1 and later on with ulterior motive filed the present complaint only with a view to give undue pressure upon the opposite party no. 1 so that this opposite party no. 1 may not raise his demands with the complainant.
   7. The above facts and circumstances the present complaint is fit to be dismissed and the complainant is not entitled to any relief, as mentioned in Para 11 and 12 of the complaint petition.
3. The Opposite Party no. 2 and 3 in their written statement has submitted as follows :-

1. These Opposite Parties have / had neither any knowledge or information with regard to the allegations as alleged in the complaint petition nor have these opposite parties received any letter or information from the side of the complainant. It is submitted that these opposite parties have come to know, for the first time. On receipt of notice and the copy of complaint petition issued by the Court.

8. It is submitted that on receipt of notice as well as copy of complaint petition the authorities of these Opposite Party enquired the matter from the dealer i.e. Opposite Party no. 1 and then they came to know about the real facts and misconduct of the complainant and the same would be clear from the letter dated 16.08.2009 issued by the opposite Party no. 1.
9. It is submitted that the complainant is not entitled to raise any complaint or grievances before this Hon’ble Court as he has not come within the preview of bonafide customer of the Opposite Parties and this fact would be clear from the main complaint petition, filed by the complainant, that total price of the goods is Rs. 21,000/- only whereas till date the complainant has paid only Rs. 19,700/- only to the Opposite Party no. 1.
10. From the perusal of the complaint petition filed by the complainant, the complainant as per desire approaches the Opposite Party no. 1 on 30.04.2009 and placed order for supply of  one Air Conditioner of 1.5 ton capacity along with one stabilizer of 4 K.V.A. but on that he has not paid the price of goods to the Opposite Party no. 1. The Opposite Party no. 1 supplied the goods to the complainant in good faith without receiving the price of goods and on repeated demands of the dealer the complainant paid the amount in part on 18.05.2009 with an assurance to pay the balance amount later. The Opposite Party no. 1 installed the machine at the residence of the complainant. 
11. After installation of Air Conditioner this Opposite Party No. 1 for the first time, on receipt of complaint from the complainant, Opposite Party No. 1 deputed his technician to verify the machine and after proper verification the said technician found that there was no any defect in the machine rather there was wiring problem in the electric line, the technician informed the complainant accordingly, after routine service of the machine the report was prepared by the mechanic in presence of the complainant which were counter signed by the complainant himself. This fact would be clear from Annexure 3 of the complaint petition.
12. Again, on 24.06.2009 the Opposite Party no. 1 received a letter of the complainant in which he requested to change the stabilizer of the Air Conditioner from 4 K.V.A. to 5 K.V.A. but the opposite party no. 1 ( dealer ) is not position to provide the required 5 K.V.A. stabilizer to the complainant as the same was out of stock and not available with him but the opposite party no. 1 ( dealer ) arranged the 5 K.V.A. stabilizer from the company and handed over within one week i.e. 02.07.2009 to the complainant. This fact would be clear from Annexure 4 and 5 of the main complaint petition.
13. It is further submitted that there are no any latches or negligent attitude on the part of either these Opposite Parties as well as the Opposite party no. 1 and the question does not arise with regard to any manufacturing defect in the machine or the stabilizer nor there is any deficiency on the part of the Opposite Parties of this case.
14. The above facts and circumstances the present complaint is fit to be dismissed and the complainant is not entitled to any relief, as mentioned in Para 11 and 12 of the complaint petition.

From the perusal of the above written statements given by the Opposite Party Nos. 1, 2 and 3 are same.

We have heard the learned counsel for the parties at length and also narrated the facts asserted by the parties in complaint as well as written statement in brief. On behalf of complainant supplementary affidavit as well as written argument has also been filed. And on behalf of opposite parties rejoinder to supplementary affidavit filed by the complainant, rejoinder to reply dated 19.05.2010 etc have been filed which are on the record. Besides that evidence of the complainant by way of affidavit under order 18 Rule 4 of CPC is also in the record. We have perused the entire record carefully. However we are bound to narrate certain facts even at cost of repeatation for the purpose of recordings our findings.

It is the case of the complaint that he had purchased 1.5 ton Air Conditioner from opposite party no. 1 on 30.04.2009 opposite party no. 1 advised him to install 4 K.V.A. stabilizer of voltas company. On repeated request installation was done by opposite party no. 1 on 04.05.2009 and when the machine did not work then on 20.06.2009 he visited opposite party no. 1with request to change the stabilizer from 4 K.V.A. to 5 K.V.A. as suggested by him. Thereafter complainant contacted callcenter and when no action was taken then he sent letter to opposite party no. 1 on 24.06.2009 ( vide annexure – 4 ). Thereafter mechanic of opposite party no. 1 came on 02.07.2009, took away stabilizer of 4 K.V.A. in absence of the complainant ( vide annexure – 5 ). In supplementary affidavit, the complainant asserted that on 31.03.2010 when Air Conditioner could not be started then he informed opposite party and on 03.04.2010 mechanic came and found defect in compressor ( vide annexure – 6 ). He accepted that free service was also not provided as appear from annexure – 8. From annexure 7 it appears that the opposite party was ready to change compressor but complainant did not co – operated. The complainant alleaes that when he lodged complaint then on 14.04.2010 opposite party asked to withdraw the case and when he refused then annexure -8 was issued ( vide annexure – 9 ). The opposite parties have jointly filed reply to supplementary affidavit denying the allegation of supplementary affidavit. The complainant has also filed reply to written statement filed by opposite parties denying their allegation. We have also perused evidence filed by the complainant by way of evidence in which he has broadly repeated the same facts. We have also gone through the cross examination by opposite parties.

The parties have filed multiple petitions repeating the same facts again and again resulting in voluminous record.

The crux of this case is that the complainant purchased the Air Conditioner on 30.04.2009 but the same could not be made functional for want of stabilizer of 5 K.V.A. till 02.07.2009.

From bare perusal of annexure 1 it is crystal clear that the opposite party no. 1 has handed over the Air Conditioner and stabilizer of 4 K.V.A. on 30.04.2009 to the complainant. In annexure 1 only rate is mentioned but the fourth column of amount is blank which shows that no price was paid but vide annexure – 2, the payment of Rs. 19,700/- has been received by opposite party out of Rs. 21,000/-. This means that the opposite party no. 1 has received the amount on 18.05.2009 and thus the complainant comes in the category of consumer. If a seller sells any item in less amount, despite this fact the buyer will come in the category of consumer. Hence we reject the submission of the learned counsel for the opposite party that complainant is not consumer because he has not paid full price. Then complainant has asserted that he has paid full price but opposite party no. 1 did not provide him proper receipt. It is alleged by the complainant that he had purchased stabilizer of 4 K.V.A. on the advise of opposite party no. 1. This fact is amply proved by annexure 1 and 2. Vide annexure – 3 dated 20.06.2009, it is crystal clear that when mechanic of opposite party no. 1 visited the complainant he found some problem but machine was good and he advised. Thereafter on 20.06.2009 again mechanic visited and advised him to change the stabilizer vide annexure – 4 and thereafter it appears that on 02.07.2009 the stabilizer of 5 K.V.A. was supplied as will appear from annexure – 5. At this juncture it is worth mentioned that it must be in the knowledge of the opposite party no. 1 that Air Conditioner will not function with stabilizer of 4 K.V.A. and hence he would not had supplied the same but he supplied deliberately because in written statement of opposite party is mentioned that when a request for supplying stabilizer of 5 K.V.A. was made then at the time the stabilizer of 5 K.V.A. was out of stock and hence it was supplied after delay from other source. From annexure 7,8 and 9 it appears when again in 2010 the Air Conditioner did not properly work then complainant was asked to withdraw this case when complainant refused to withdraw the case then the opposite parties only offered to change the compressor of the Air Conditioner which shows that after 2^nd year of purchase the Air Conditioner was not working properly due to defect in the compressor.

We have also minutely gone through the evidence adduced by the complainant and cross examination and we found no cogent material on the record to disbelieve the version of the complainant. We therefore found deficiency on the part of opposite parties who have supplied defective Air Conditioner with stabilizer of 4 K.V.A. deliberately due to which the complainant had to face intense heat from 30.04.2009 to 02.07.2009 despite the installing of the Air Conditioner and ultimately the Air Conditioner has developed defect due to fault in the compressor.

We therefore direct the opposite party no. 2 and 3 jointly and severally to replace the Air Conditioner with New one of same model with fresh warranty within a period of two months from the date of receipt of this order and prior to that the complainant will have to return the old Air Conditioner.

In case the Air Conditioner is not replaced within the period aforesaid then in that case the price of old Air conditioner have to be refunded to the complainant after a month thereafter with interest @ 10% per annum and this interest will be levied till final payment be made.

Since the complainant has suffered too much We therefore further direct the opposite party nos. 1,2 and 3 jointly and severally to pay Rs. 10,000/- ( Rupees ten Thousand only ) to the complainant by way of compensation and litigation cost.

Thus this complaint stands allowed to extent referred above.

                  Member                                                 President