PRESENT:      Sh.Varinder Arora, Adv. for complainant

Ms.Renu Rishi Gautam., Adv. for OPs.

                              ---

PER LAKSHMAN SHARMA, PRESIDENT

          Smt.Kusum Thakur has filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein that OPs be directed  to :-

i)              To pay sum of Rs.21,900/- being the price of Air Conditioner.

ii)         To pay sum of Rs.1,00,000/- on account of deficiency in service.

iii)    To pay a sum of Rs.10000/- as litigation expenses.

2.        In brief, the case of the complainant is that she purchased a Voltas Spilt A.C. from OP-2 vide invoice No.5009 dated 16.04.2008 for Rs.21,900/- which was financed by ICICI Bank.  After service, the Air Conditioner started giving noise. On making complaint to OP-3, Engineer visited on 14.03.2009 and observed that the fan had some problem and the same was rectified. After a few days, the Air Conditioner again started giving the same problem. The engineer visited on 25.03.2009 and pointed out that there is problem in the stabilizer and the stabilizer was changed by OP-2. According to the complainant, she made repeated visits and calls to OPs for rectification of the defect. On 13.04.2009, the technician of OP-3 checked the air conditioner and said that there is problem in the motor of the fan. He removed the motor of the fan and took it away for probable replacement. While removing the fan and motor, he damaged the blade of Air Conditioner as a result of which it could not be assembled. The same is lying open since then. The complainant requested the OPs for rectification of the defects repeatedly but no effect. According to the complainant, she got served a legal notice dated 29.04.2009 upon OPs but to no effect. In these circumstances, the present complaint was filed seeking the reliefs mentioned above.

3.        In the reply filed by OPs, it has been admitted that the complainant had purchased the Air Conditioner in question from OP-2.  It has also been admitted that the complainant had lodged the complaint on 09.03.09, 14.03.09, 25.03.09 and 13.04.09 but on all the occasions there was no major defect in the air conditioner. It has been pleaded that being satisfied with the services of OPs, the complainant had signed the job sheets.  According to the OPs, on one occasion, the defect was found in the stabilizer  which does not fall under the purview of the product defect.  It has been pleaded that the noise perception varies from individual to individual and any electrical or electronic gadget when in operation makes the requisite noise and the functioning of air conditioner obviously would make operational noise as in the instant case. It has further been pleaded that OPs offered to replace the fan motor against the deposit of the old motor to which there was resistance on the part of complainant who refused to allow the deposit of the earlier motor to enable the OPs to replace it with a new one. In these circumstances, according to OP, there is no deficiency in service on its part and the complaint deserves dismissal.

4.        We have heard the learned counsel for the parties and have gone through the entire record including documents, annexures, affidavits etc. 

5.        Admittedly, the air-conditioner was purchased by the complainant from OP-2. This fact also stands corroborated from the invoice dated 16.04.2008. It is admitted the said air conditioner was under warranty.  The copies of the job sheets dated 09.03.2009, 14.03.09, 25.03.09 and 13.04.09 have been placed on record. From the perusal of the same, it is apparent that each time, some defect was found in the Air Conditioner and sometimes, the defects were removed. From the jobsheet dated 13.04.09, it is apparent that the engineer who visited the premises of the complainant found that there was some problem in the motor of the fan of Air Conditioner. So he took away the same for probable replacement of the same. The case of the complainant is that thereafter the fan motor has not been replaced despite repeated requests. Therefore, the complainant had to purchase another air conditioner.

6.        On the other hand, the case of OPs is that they offered to replace the fan motor against deposit of old motor to which there was resistance on the part of the complainant who refused to allow the deposit of old motor to enable the servicing staff to replace it with a new one. The above stand taken by OPs is contrary to the jobsheets placed on record. From the job sheets, it is apparent that the above fan motor was taken away by servicing staff for probable replacement. So there cannot be any resistance on the part of the complainant to allow to take the old motor of the fan.

          Admittedly, the fan motor has not been replaced as a result of which the complainant could not run the Air Conditioner and he had to purchase a new Air Conditioner.  The non-replacement of the fan motor within the warranty period amounts to deficiency in service.

7.        It was vehemently argued on behalf of the OPs that the complainant is not a consumer as the complainant is a commercial concern. This argument of the learned counsel for the OPs has no force. The complainant is not dealing in the business of Air Conditioners. So the transaction of purchase of Air Conditioner is not a commercial transaction. So the complainant is a consumer as defined under the provisions of Consumer Protection Act, 1986.  Therefore, the case titled as Singh Engineering Works Vs. S.K.Blumetal Works reported in 1(2007) CPJ-140 (NC) relied upon by the learned counsel for the OPs is not applicable to the facts of the present case.

8.        In view of the above findings, this complaint is allowed with a direction to OPs to replace the defective motor with a new one along with fresh warranty and make the Air Conditioner functional. OPs are directed to pay to Rs.5000/- as compensation for mental agony and harassment and Rs.5000/- as costs of litigation.

9.        This order be complied with by OPs within one month from the date of receipt of its certified copy, failing which OPs shall be liable to pay Rs.21,900/- being the price of the Air Conditioner to the complainant along with Rs.5000/- as compensation for mental agony and harassment along with penal interest @ 18% p.a. from the date of filing of the complaint till its realization besides costs of litigation  of Rs.5000/-.

10.       Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

28.01.2010