ORDER NO. 25 DT. 17.01.2019
Facts of the complaint case in brief are that the complainant purchased one 1.5 ton Capacity Air Conditioner (Split Type) being Model No. HSU-18 LB2, HS 18LB2 101201167, Serial No. A 7ZD 6EOQOO AC A1 W 1116 from O.P. No.1 M/s. Shivam Electronics on 24.04.2010 at a price of Rs. 22000/-. The A.C. became out or order number of times within the warranty period. The complainant made several complaints to the Company’s Kolkata Office on 26.07.2010, 18.09.2010 and 21.09.2010 respectively and then a letter was sent to Delhi office on 05.11.2010 which was duly received by the O.Ps. Again a letter was sent to the Company’s Delhi Office on 28.07.2016 which was returned to the complainant on 12.08.2016. The complainant then reported the matter to the Directorate of Consumer Affairs and F.B.P, Malda Regional Office on 18.08.2016 and both parties were called there for hearing on 08.09.2016 at 12 hrs. and it was decided that the dispute to be resolved mutually. Subsequently a meeting was held on 14.09.2016 at Siddhant Smart Care Center, a local service center of the O.Ps and in the said meeting it was admitted by one Mr. Samar Rudra a Service Head of the Company’s Kolkata Office that the Service Center fitted 2 ton Capacity Compressor in place of 1.5. ton capacity by mistake and the company will repair the A.C. free of cost and thereafter on 30.09.2016 the petitioner was informed verbally by Mr. Sanjay Sharma Prop. of Siddhant Smart Care that his request to repair the A.C. free of cost is rejected by the Company and he demanded Rs. 11000/- for replacement of compressor of A.C. in question. Hence,this case.
In this case O.P. Nos. 1 and 3 neither appeared nor contested the case. Accordingly, the case is heard ex parte against them. O.P. No.2 entered appearance and contested the case by filing a written version wherein the material averments made in the complaint is denied and it has been contended inter alia that the present case is not maintainable. It has been further contended by the O.P. Nos. 2 that the case is hopelessly barred by limitation. It has been, further, stated by the O.P. No.2 that on receipt of complaint from the complainant this O.P. took the matter seriously and repaired the machine properly and duly replaced the machinery parts free of cost and as a result the A.C. machine was properly functioning. It has been further contended by the O.P. No.2 that the allegations brought against this O.P. being baseless the instant case is liable to be dismissed with cost.
Complainant has submitted Examination in Chief and following documents.
- A bill of purchased A.C. (Ext.-1)
- A letter to Company Head Quarter at Delhi and Shivam Electronics sent on 05.11.2010. (Ext.-2)
- Repeated letter dt. 28.07.2016 to Shivam Electronics (Ext.-3)
- Letter to Haier Office at Delhi Office (Ext.-4)
- Warranty sheet of Haier Prospects (Ext.-5)
- A complaint letter to Consumer Forum dated 18.08.2016 (Ext.-6)
- Memo No. 536 /C&F/ MLD dated 29.08.2016 of Consumer Forum (Ext.-7)
- Cash Memo / Bill No. 603 and 621 of Siddhant Smart Care (Ext.-8)
O.P. No.2 neither submitted any evidence nor any documents.
:POINTS FOR DECISION::
- Whether the complainant is a ‘Consumer’ within the meaning u/s. 2(1)(d) of the Consumer Protection Act, 1986.
- Whether the case is barred by limitation?
- Whether there is any deficiency of service on the part of the O.Ps
- Whether the complainant is entitled to get any relief / reliefs as prayed for?
::DECISION WITH REASONS::
Point No. 02
This issue is taken up for discussion for the sake of convenience and brevity.
This is admitted position that the complainant purchased one 1.5 Ton capacity Air Condition Machine (Split Type) being Model No. HSU-18 LB2, HS 18LB2 101201167, Serial No. A 7ZD 6EOQOO AC A1 W 1116 from O.P. No. 1 M/s. Sivam Electronics on 24.04.2010 at a price of Rs. 22000/-. From the facts of the case as well as Affidavit-in-Chief submitted by the complainant it appears that since after purchase the A.C. was not working properly and became out of order number of times within the warranty period. The complainant made several complaints to the O.Ps. and the dealer of the O.P. No.1 sent their serviceman /service technician on several dates but he did not succeed to cure the problem and the A.C. was still not functioning. The complainant again made complaint and finally demanded on 23.05.2012 for replacement of the A.C. and then the technician of the O.P. No. 1 changed the compressor of the A.C. in question and installed one 2 ton compressor in place of 1.5 ton compressor, as a result capacity of electric load became increased and caused damage to the motor of the fan, capacitor, lead terminals etc. and when the complainant reported the problem to the O.Ps the O.P. No.1 demanded Rs.11000- for replacement of the compressor.
According to the case of the complainant after repeated reminders the O.P. No.1 installed one 2 Ton compressor in the disputed A.C. instead of 1.5.Ton compressor but on which date the compressor was installed is neither mentioned in the petition of complaint nor in Affidavit-in-Chief submitted by the complainant. If we consider for argument’s sake that when the complainant finally demanded for replacement of the A.C. in question on 23.05.2012 the O.P. replaced one 2 Ton compressor in the A.C. so, it was probably replaced in the year 2012 but even after replacement of the alleged compressor if the problem of the A.C. was not resolved then it is not understandable why the complainant remained silent from the date of installation of the alleged 2 Ton compressor till 28.07.2016 i.e. for about four years. There is not a single iota of document to hold that after installation of alleged 2 ton compressor till 28.07.2016 the complainant made any correspondence with the O.P. claiming non-functioning of the A.C. in question nor he filed any case before this Forum within the period of two years from the date of non functioning of the A.C. even after installation of the alleged 2 Ton compressor. It is surprising that the complainant was remained silent for about four years i.e. from the installation of the alleged compressor till 28.07.2016 and thereafter one fine morning he sent a letter dt.28.07.2016 addressing to the O.P’s Delhi Office which was returned back to him. There is no hesitation to hold that the complainant has sent the letter dt.28.07.2016 to the Company’s Delhi Office only to make out a cause of action for filing this case after long gap of four years. In fact the complainant has failed to explain by sufficient cogent evidence as to why he made such inordinate delay in filing the complaint when he claims that even after installation of the alleged compressor in the A.C. in question the problem of the A.C. was not cured.
Again we find that the complainant lodged a complaint with the Directorate of Consumer Affairs and F.B.P. Malda Regional Office on 18.08.2016 and according to the complaint case the Director of the Consumer Affairs and F.B.P. called the parties for hearing on 08.09.2016 at 12 hrs. but here we do not find anything to hold that the O.Ps. appeared before the Affairs on the date of hearing. The complainant also failed to submit any paper regarding the result of hearing before this Forum. So, considering the facts and circumstances of the case with regard to the materials and the documents submitted on the side of the complainant this Forum is of the view that the complainant has made inordinate delay in filing the case before this Fourm which was not properly explained and accordingly, the case is barred by limitation U/S. 24A of the Consumer Protection Act, 1986.
This issue is accordingly decided against the complainant.
When the Issue No.2 is decided against the complainant this Forum is of the view that other issues are not required to be discussed.
In the result, the case fails.
Proper fee paid.
Hence, ordered
that the Consumer Case No. 70/2016 be and the same is hereby dismissed on contest without any order as to cost.
Let a copy of the order be given to each of the parties free of cost at once.
