BEFORE THE A.P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION

AT HYDERABAD.

F.A. 609/2008 against C.C 1017/2006, Dist. Forum-I, Hyderabad.

Between:

1. S. Vijay Kumar, S/o. Late S. Appa Rao

Age: 57 years, Pvt. Service

Flat No. 304, Pattabhi Towers

RTC X Road, Hyderabad-20.

2. S. Srikanth, S/o. Vijaya Kumar

Age: 31 years, Advocate

Flat No. 304, Pattabhi Towers

RTC X Road, Hyderabad-20 *** Appellants/

Complainants

And

1. United Systems

Rep. by G. Ram Mohan

# 3-5-7/1/5, First Floor

Eden Apartment

Ramkote, Hyderabad-1.

2. M/s. Blue Star Ltd.

207, Sikh Road, Bantia Estate

Secunderabad-500 003. *** Respondents/

Opposite Parties

Counsel for the Appellant: M/s. G. Narasimha.

Counsel for the Resp: M/s. G. Vidyasagar.

CORAM:

HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT

&

SMT. M. SHREESHA, MEMBER

THURSDAY, THIS THE FIFTH DAY OF AUGUST TWO THOUSAND TEN

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

*****

1) The complainants preferred this appeal against inadequacy of compensation granted by the Dist. Forum.

2) The case of the complainants in brief is that on the advice of cardiologist complainant No. 1 having undergone bypass surgery on 22.2.2004 and purchased an air conditioner (a/c) for Rs. 19,700/- from R1 manufactured by R2. It was installed on 28.5.2005 after collecting Rs. 500/- towards installation charges and Rs. 250/- towards handling charges. Since the date of installation the a/c was not functioning up to the mark. Remote was not even functioning. On a complaint the remote was changed. Even then a/c was not working. They found sound emanating from the stabilizer. The stabilizer was not starting instantly and switching off randomly, burnt smell was emanating from it. Unbearable sound was coming from the compressor. Deflection in windows and water was pouring down from side of a/c due to defective installation. Instead of V.Guard 4 KV standard stabilizer, a sub-standard Real Guard stabilizer of inferior quality was installed. Since the a/c was not functioning well, from the date of purchase the very purpose of purchasing a/c was defeated. On that they issued legal notice on 27.4.2006 which did not evoke any response. Since there was manufacturing defect in a/c both R1 dealer as well as R2 manufacturer were liable either to replace a/c with a new one or refund the cost together with interest @ 24% p.a., replace defective stabilizer with new V-Guard stabilizer and compensation of Rs. 2 lakhs for causing mental agony besides Rs. 750/- towards installation and handling charges.

3) R1 dealer resisted the case. While admitting purchase of a/c ‘Blue Star’ manufactured by R2 from it for a sum of Rs. 19,700/-, it alleged that it did not demand Rs. 250/- towards handling charges. The quotation dt. 25.5.2005 filed by the complainant was tampered. Installation charges given in the note was Rs. 450/- while the quotation shows that it was Rs. 550/-. The said quotation is being disputed by them. There was no complaint between 3.6.2005 and 19.4.2006 and therefore it could be presumed that there was no problem. The phone calls that were made subsequent to 19.4.2006 were very much nearer to the warranty period. They have mis-used the a/c and handled improperly. The complaints alleged by them were not brought to its notice for about a year. The complaint was filed in order to make unlawful gain, and therefore prayed for dismissal of the complaint with costs.

4) R2 filed a memo adopting the counter of R1.

5) The complainants in proof of their case filed the affidavit evidence of complainant No. 2 and got Exs. A1 to A15 marked, while the respondents filed the affidavit evidence of R1 and did not file any documents.

6) The Dist. Forum after considering the evidence placed on record opined that the complainants complained about non-functioning of the a/c by issuing notices which were not even responded . R2 being the manufacturer ought to have sent a technical expert and got the same rectified, equally so with R1 dealer. Since it was within warranty period they were directed to replace the a/c with a new one in working condition with all accessories or in the alternative to refund the cost of window a/c with accessories together with interest @ 12% p.a., from the date of installation till the date of realization together with compensation of Rs. 5,000/- towards mental agony and costs of Rs. 2,000/-.

7) Aggrieved by the said decision, the complainants preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective. It ought to have seen that he got the a/c installed as he was suffering from heart ailment and due to non-functioning of a/c, the very purpose was defeated. In such cases awarding compensation of Rs. 5,000/- is very meagre, instead their claim of Rs. 2 lakhs ought to have been granted.

8) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

9) It is an undisputed fact that complainant No.2 is an advocate. He is son of complainant No. 1. In the quotation for sale of a/c, R1 the dealer mentioned that they would supply 1.5 TR Window Air Conditioner with remote, V-Guard stabilizer and standard installation with a warranty of one year on unit and five years on compressor under Ex. A3, and Ex. A5 it dispatched one 1.5 TR Window A/c price of which was Rs. 17,250/-, voltage stabilizer Rs. 2,000/- and installation charges Rs. 500/-, in all Rs. 19,750/-. It looks as though the complainant has been complaining about the working of the a/c and problems which they were facing in regard to working of the a/c evidenced from statement of phone calls under Ex. A7. No doubt there were no phone calls between 3.6.2005 and 19.4.2006. The fact remains that they were vexed with the functioning of the a/c. and issued legal notice under Ex. A8 dt. 27.4.2006 which they have received under Ex. A10 but did not give any reply. It is not the case of the respondents even that phone calls were not made nor legal notice was not received. One of the contentions was that there was no phone call between 3.6.2005 and 19.4.2006 which would show that there was no defect and it was in good working condition. Subsequent calls made from 19.4.2006 are very much nearer to warranty period in order to make unlawful gain. Assuming without admitting that such calls were made in order to have illegal gain, there is no reason why neither R1 nor R2 responded by sending a technical expert to find out whether the complaints made by the complainants were real or only to make unlawful gain. Except denying whatever the complainant alleged, the respondents did not bother to rectify the problem. Therefore the order of the Dist. Forum directing the respondents to replace the defective a/c with a new one with all accessories or refund the amount with interest @ 12% p.a., cannot be found fault with.

10) The only question that arises for consideration is whether the complainants are entitled to compensation of Rs. 2 lakhs?

11) At the outset, we may state that in fact a perusal of quotation Ex. A3 shows that they have taken quotation for two air conditioners. However, they have purchased only one a/c. When they could know that it was not functioning, there is no reason why they should persist in keeping it more so when complainant No. 1 was not keeping good health. There is no proof that the cardiologist had directed complainant to remain in a/c room. Assuming without admitting that it is true the complainant could not have kept the a/c with them when it is within the warranty period. They would have got it tested by taking it to R1 and see that a/c was replaced. The complainants did not allege that in view of non-functioning of the a/c complainant No. 1 had suffered ill-health. Obviously, he could have suffered some inconvenience. However, a compensation of Rs. 2 lakhs for the a/c worth Rs. 19,700/- cannot be granted. It would be highly disproportionate. The amount of Rs. 5,000/- which was awarded by the Dist. Forum cannot be said to be on lower side. It is modest and reasonable. We do not see any merits in the appeal.

12) In the result the appeal is dismissed. No costs.

1) _______________________________

PRESIDENT

2) ________________________________

MEMBER

Dt. 05. 08. 2010.

*pnr