Delhi

North

RBT/CC/313/2022

MOHIT SINGHAL - Complainant(s)

Versus

M/S VIJAY SALES - Opp.Party(s)

14 Aug 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

RBT/Consumer Complaint No.:313/2022

In the matter of

Sh. Mohit Singhal , Advocate,

S/o Sh. Rajender Parshad,

23, Kewal Park, Tagore Marg,

Azadpur, Delhi-110022.                                                    …         Complainant       

                                                          Vs

 

M/s Vijay Sales

H-2, Ring Road, Next to ICICI Bank,

Model Town III, Delhi-110009.                                   …        Opposite Party No.1

         

M/s Tekcare India Pvt. Ltd./ Electrolux,

15 Km Stone,

Aurangabad- Paithan Road,

Aurangabad-435105, Maharashtra                          …          Opposite Party No.2

ORDER

14/08/2024

Ashwani Kumar Mehta, Member:

 

1.       The Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 before Hon’ble DCDRC-V Shalimar Bagh and was assigned the Consumer Complaint No.789/2018 and it was further transferred to this Commission by the Hon’ble Delhi State Consumer Disputes Redressal Commission vide its order dated No.F.1/SCDRC/Admn/Transfer/2022/330 dated 16.04.2022 and accordingly, this complaint was registered as RBT/CC No.313/2022.

 

2.       The brief details of facts, as alleged by the Complainant in the Complaint in hand, are that:-

1. the Complainant purchased an Electrolux Split Air Conditioner of 1.5 Ton bearing Model No.ES18F3C-CMSMW purchased on 01.04.2017 from the OP-1 for his home use. The price of the Air Conditioner was Rs.22,990/- on which one year complete warranty was provided by the Opposite Parties. The Complainant was suggested by the executives of the OP-1 that an extended warranty VS+ scheme for further 2 years on the product is also provided on behalf of the company/ Opposite Parties on an additional payment of Rs.1,923/- in which the product shall be completely covered for the full value without any depreciation for further 2 years after one year of the purchase wherein if the product get mal functioned/ break down, then the Opposite Parties will repair/ replace it without any costs. The extended warranty scheme also suggested that it replicates and extends the manufacturer’s warranty.
2. Product was installed by the Opposite Parties and in the month of June 2017 i.e. within 3 months of use, the product started malfunctioning. The remote of the AC did not direct the product accordingly on pressing the desired buttons. The display of the remote also got half invisible. The cooling air from the product diminished. Water started leaking from the indoor unit. Accordingly, the Complainant made a complaint to the Opposite Parties for fixing the same on which the executives visited to the house of the Complainant for 3-4 times on different occasions but not on the time agreed between the Complainant and executives of the Opposite Parties. Still half of the complaint of the Complainant got serviced by the OPs and the remote was not corrected.
3. The product again got malfunctioned in the month of September-October 2017. To this, the Complainant made a complaint to the Opposite Parties again and also got emailed to the Opposite Parties at its email address vscaredelhi@vijaysales.com on 16.11.2017 but without any result or reply from the OPs. However, the product got partially fixed.
4. The product started malfunctioning in the summer of the year 2018 by non-cooling, water leakage, oil leakage from indoor unit. The Complainant complained to the Opposite Parties number of times and also asked for the replacement of the product with a new one since the product is repeatedly malfunctioning leading to wasting of the time and energy of the Complainant.
5. Every complaint was answered on the part of the Opposite Parties on several confirmation calls/ Reply SMSs by them and also 2-3 visits of the executives, but without any satisfactory solution.
6. Within 3-18 months of use, the product was got serviced/ repaired for 4-5 times by the Opposite Parties, despite the replacement request from the Complainant, twice the cooling Gas was refilled in it, thrice the indoor unit got serviced, once the indoor unit got Chemical washed by removing it completely. Once the coil leakage in indoor unit got serviced, also the indoor unit Fan Noise also got fixed. Lastly the product got serviced in the month of September 2018.
7. After some days of the use from las servicing of the AC in the month of September 2018, the product again started malfunctioning. The cool air from the product went off and the Complainant was could not use the Air Conditioner during the acute pollution days nearby Diwali festival 2018.

 

3.       It has further been alleged that it is the modus operandi of the Opposite Parties to provide faulty products and charge money in terms of providing extended warranty and then not fulfilling the terms as mentioned in it. A consumer is allured by showing the above such wasteful extended warranty scheme on the faulty & substandard quality products which raise questions in mind as to whether the life of a product covered under warranty remains until the warranty remains or whether the companies/ service providers are allowed to be liable only for the warranty period of the substandard qualitied products?”

 

4.       It is further alleged that the Complainant has suffered a lot due to the deficient services and the negligent behaviour of the OPs in terms of loss of money, mental trauma, agony, wastage of time, home security issues, etc. for which the Complainant is liable to be compensated by the OPs. The Complainant is entitled to recover the full price of product with interest, penalties, damages on account of harassment, monetary  loss, wastage of time, etc. in terms of following:-

(i)	Price of the Air Conditioner	Rs.22,900/-
(ii)	Extended Warranty Charges	Rs.1,923/-
(iii)	Other charges i.e. installation, file charge etc	Rs.1,690/-
(iv)	Compensation/ damages	Rs.20,000/-
(v)	Litigation expenses	Rs.30,000/-
	Total:-	Rs.76,513/-

 

5.       The Complainant has also filed copies of bill of the split air conditioner, original service report dated 20.06.2018 and 16.09.2018 on its back side, email dated 16.11.2017 sent by Complainant to the OP, extended warranty certificate VS+ of the OP and communication between the parties.

 

6.       Accordingly, notices were issued to the OPs and in response OP-1 has filed reply whereas the representative of OP-2 (Sh. Rizwan Ahmad) appeared on 06.03.2019 and sought time to file the reply but no reply was filed. In fact, thereafter, OP-2 neither appeared nor filed any reply, as such, was proceeded ex-parte. The OP-1 has filed its reply stating that:-

 

1. The OP-1 is a dealer/Agent. If the complaint is received from the consumer, every dealer informs the manufacturing company and service centre who have right to check and remove the defect. Accordingly, the OP-1 sent the complaint to the Service centre which was received from the Complainant. The Complainant pressurized the answering OP to replace the same. There is no deficiency in service and unfair trade practice is on the part of the OP-1. The Complainant is not entitled to recover any amount from the OP.
2. There is a warranty given by the company i.e. Tekcare India Pvt. Ltd./ Electrolux/OP-2. Thereafter, OP-1 is not liable for warranty and extended warranty of the product as alleged by the Complainant.
3. The warranty has been given by the OP-2 i.e. Tekcare India Pvt. Ltd./ Electrolux, and if there is any deficiency in service then it is the liability of the manufacture Company/ Tekcare India Pvt. Ltd./ Electrolux.
4. OP-1 does business from principal to principal which means that the products which is brought by the manufacturer is passed on to the consumers. It has been held in judgments of the Hon’ble Supreme Court of India in the matter of Hindustan Motors Ltd. Vs. N. Siva Kumar and Another-2000(10) SCC 654 and also of Hon’ble National Consumer Disputes Redressal Commission, New Delhi, in the matter of Classic Automobiles V/s Leela Nanad Mishra & Anr- (2010) CPJ 235 (NC) that the dealers cannot be held liable for defective product. Therefore, OP-1 has not provided any deficiency of service to the industries limited.
5. The Hon’ble State Commission of Punjab & Haryana in the matter of A.B. Motors Pvt. Ltd. Vs. Yogesh Jain in First Appeal No.260/2017 dated 13.07.2017 and M/s Hyundai Motors India Ltd. & Anr. Vs. Harpal Singh & Ors. (2018) UTS CDRC-083, has followed the judgment of Supreme Court of India in Hindustan Motors Vs. N. Siva Kumar and Anr.  Holding that dealers are not liable for manufacturing defects.

 

7.       Though the OP-2 has been proceeded ex-parte, it would be relevant to note that the on 06-03-2019, the representative of the OP-2 (Sh. Rizwan ahmad) has received a copy of order sheet, directing OP-2 to visit the premises of the Complainant to inspect the AC within 10 days after contacting the Complainant on his mobile no.9971612342. Thereafter, service engineer of OP-2 shall file inspection report along with an Affidavit of service engineer who visited the premises but the OP-2 did not comply the orders and right to file reply was also closed. Thereafter, on 10.03.2021, Complainant moved an application seeking interim relief stating that the AC installed at his residence has stopped working and despite repeated requests to the OPs for the repair of the said AC, the AC has not been repaired. At the onset of the summers, the AC requires immediate repair and therefore, interim directions be given to the OPs to repair the AC in question. Therefore, in the interest of justice and also in view of the ensuing summers, this commission issued directions to  OP-2 on 16-03-2021 to repair the AC of the Complainant within 7 days of receipt of copy of the order. It was also directed that the service engineer and the technician visiting the premises of the Complainant for the repair shall also file their respective affidavits indicating the status of the AC and the repairs conducted on or before the next date of hearing. It was also clarified in order dated 16-03-2021that if OP-2 fails to repair the AC in question within the stipulated time frame, then the Complainant shall be at liberty to get the AC in question repaired by any  third party mechanic/ agency and file the details of the repair and bills indicating cost incurred, to this Forum on or before next date of hearing. It has also been seen that the OP-2 did not comply this order and stopped appearing before this commission. The OP-2 has also not filed any WS and has been proceeded ex-parte which is considered as deemed acceptance of the allegations levelled in the complaint.

 

9.       The complainant and the OP-1 have filed evidence by way of affidavits and have also filed written arguments with judgments in support of their contentions. The OP-1 has cited following judgments:-

1. Classic Automobiles Vs Lila Nand Mishra & Anr.-(1) 2010 CPJ 235 NC.
2. M/s. Hyundai Motors India Ltd. & Anr. Vs Harpal Singh & Ors.-UT-SCDRC Chandigarh-FA No. A/27/2018 .
3. Hindustan Motors Ltd. and Anr. V/s N. Siva Kumar and Anr. (2000)10 SCC 654
4. A.B. Motors Pvt. Ltd. V/s Yogesh Jain Punjab SCDRC FA No.260 of 2017.

 

10.     The Complainant has also cited following judgments:-

1.  the Hon’ble State Consumer Disputes Redressal Commission, Maharashtra, Mumbai in the matter of  Mr. Vikas V. Pathree Vs. Vijay Sales Mahim Branch and Ors., in First Appeal no. FA/18/690 dated 30 September 2022, has held as under:

“It is necessary to mention that OP nos. 1 to 3 who had sold the product namely air conditioner to the Complainant are under bounden duty to supply a good quality air conditioner free from all defects which was not done in the present case. Furthermore, they have also not rectified the defect in the air-conditioner which has continued to emit great noise. As such, we are of the view that since the opponent nos. 1 to 3 had committed deficiency in service by supplying inferior quality of air-conditioner they must be directed to replace the air-conditioner with new air-conditioner and also to pay compensation for the mental and physical agony caused to the complainant. As such, it is necessary to modify the order passed by the Learned District Consumer Commission dated 5 (FA/18/690 in CC/17/230) 12/07/2018.”

 

2. Hon’ble National Consumer Disputes Redressal Commission in Revision Petition No.1890 of 2015 (Against the Order dated 30.12.2014 in Appeal No.895/2012 of the State Commission West Bengal) in the matter of  Manager, Rohit Refrigeration Co. & ors. vs Sudarsan Kumar Dey on 04 August, 2015  observed and held that:

“the District Forum allowed the complaint and directed the OP to refund Rs.29,700/- being the cost of air-conditioner machine and also to pay to the complainant/ respondent Rs.20,000/- as compensation and Rs.5,000/- as litigation cost with interest @ 9% p.a. The OP preferred an appeal before the State Commission. The State Commission modified the order and directed the OP/appellant to pay Rs.10,000/- instead of Rs.29,700/-. The other directions regarding the cost and compensation in the sum of Rs.25,000/- were kept intact. It is surprising to note that the air-conditioner cannot work at a particular area. It is also surprising to note that within a period of five months, the Complainant had to complaint for three times. Each of his visit or complaint also entails extra amount of compensation. Peope of this country have no time to burn. Remember that time is money. It is also surprising to note that the petitioner/ OP instead of setting the air-conditioner machine in correct position, still wanted to investigate the same and gain more time. The air-conditioner is not such a huge machine that it would take number of days to repair. It should have been repaired in a jiffy. All this tantamount to harassment and mental agony. The report further shows that technical men visited the house time and gain, but could not remove the inherent defect.

The State Commission was correct in having its heart at the right place, did not commit any irregularity or illegality and reduced the compensation because the complainant had used the air-conditioner for a good period. There is no merit in this revision petition. Hence, the same is dismissed”.

 

11.     Accordingly, the complaint has been examined in view of the facts of the case and averments/documents/Evidence put forth by the complainant & OPs and it has been observed that:-

1. The product was purchased on 01-04-2017 with one year complete warranty which was  extended under VS+ scheme for further 2 years on an additional payment of Rs.1,923/-.
2. within 3 months of installation, the product started malfunctioning and repaired number of times for various faults/defects till the date of filing the complaint.
3. Till date, it is lying not working and OP-2 has not bothered to make it operational inspite of the directions of this commission twice, during the pendency of the case as an interim relief to the complainant. it is sufficient to corroborate that the product was having problems immediately after the day of installations and where the AC have become defective immediately after purchase, in that circumstances the agony of the consumer cannot be imagined when the consumer had purchased something for making its life better and instead of making her and family members life comfortable, the consumer is put into much harassment and mental agony.

 

11.     In this case, the judgment in the matter of Jugnu Dhillon Vs. Reliance Digital Retail Ltd. [FA No.359/2012  decided     on 11.02.2014] passed by Hon’ble SCDRC, Delhi is relevant in this case wherein it has been held that:-

“14. Taking overall view of the matter, we are of the opinion that in the above mentioned circumstances where the AC have become defective immediately after purchase (in this case because for three months AC remained un-operational due to winter season) in that circumstances the agony of the consumer cannot be imagined when the consumer had purchased something for making its life better and instead of making her and family members life comfortable the consumer is put into much harassment and mental agony.

​15. This Commission on number of occasions have reiterated that in the event when a product is found to be defective at the very beginning, it is always better to order for the refund of the amount because replacement of the product will never satisfied the consumer because the consumer had lost faith in that company’s product and if the repaired product is again returned to the consumer and if develops the defect again then the consumer will be put to much larger harassment because he had to fight another bond of litigation which will be highly torturous.”

 

12.     In view of the above observations, we are of the considered view that the complainant has suffered directly due to deficient service of the OP-2 (M/s. Tekcare India Pvt. Ltd.) in terms of the deficiency defined in the Act which includes  any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained in relation to any service and includes any act of negligence or omission or commission by such person which causes loss or injury to the consumer. Besides, deficiency of service on the part of OP-2 has also caused mental agony and harassment to the complainant. However, no deficiency in service has been observed on the part of OP-1.

13.     Therefore, we feel appropriate to direct the OP-2 to pay:-

a.         Rs.22900/-(Rupees twenty Two Thousand Nine Hundred Only), cost of the AC, to the complainant along-with simple interest @9% from 20/11/2018 till the date of payment within 30 days from the date of receipt of this order;

b.       Rs.3613/-(Rupees Three Thousand Six Hundred thirteen Only), extended warranty charges/installation charges etc. to the complainant along-with interest @9% from 20/11/2018 till the date of payment within 30 days from the date of receipt of this order;

c.       Rs.20,000/- (Rupees Twenty Thousand  only)  to the complainant towards the harassment, mental agony and hardship caused due to the deficiency in service.

d.       Rs.15,000/- (Rupees Fifteen Thousand  only)  to the complainant towards litigation charges.

 

14.     It is clarified that the aforesaid amount shall be paid by the OP-2 to the Complainant within 30 days failing which OP-2 shall be liable to pay interest @12% per annum on the entire awarded amount from the date of expiry of 30 days period. The complainant shall return the product in question, to the OP-2 on receipt of the amount as ordered above.

15.     Order be given dasti to the parties in accordance with rules. Order be also uploaded on the website. Thereafter, file be consigned to the record room.

 

                     ASHWANI KUMAR MEHTA                                         HARPREET KAUR CHARYA        

                                    Member                                                                                Member       

                            DCDRC-1 (North)                                                                   DCDRC-1 (North)

         

                                                           

DIVYA JYOTI JAIPURIAR

President

DCDRC-1 (North)