Sh.Anoop Sharma, Presiding Member

1.       Sh.Rajinder Dhir has brought the instant complaint under the Consumer Protection Act, on the allegations that after the death of his brother-in-law (Jija Ji), the complainant  solemnized the marriage of his niece (Bhanji) with Mr.Mohit Kundra son of Raman Kundra on 16.12.2014 according to Hindu rites. In the marriage, the complainant  gifted a Split AC ISI 5 after purchasing from Opposite Party on 14.11.2014 for Rs.36,000/-, but however, due to spare AC in the In-laws of my niece, they did not use the AC in dispute in the summer season of 2015. In the month of June 2016, at the time of installing the said AC, the mechanic of Opposite Party told that the unit of the AC in dispute was already working and it was old one. The niece of the complainant immediately told the complainant regarding the old AC sold by Opposite Party and also astonished to see that the seals of AC in dispute were already opened. Photographs of AC Unit snapped on the spot are enclosed herewith. The complainant immediately contacted  Opposite Party regarding the selling of old AC in dispute to the complainant and after seeing this, the Opposite Party assured that the AC in dispute would be replaced, but till date the Opposite Party is lingering on the matter on one pretext or the other. Vide instant complaint, the complainant has sought the following reliefs:-

a)       Opposite Party  may be directed to replace the AC in dispute with new one.

 b)     Opposite Party  may also be directed to pay Rs.50,000/- as compensation for mental sufferings, harassment and humiliation suffered by the complainant.

Hence, this complaint.

2.       Upon notice, Opposite Party appeared through counsel and filed the written reply contesting the claim of the complaint taking preliminary objections inter alia that the complaint is not maintainable under the law as the same is out of warranty of the AC in dispute regarding which the complaint has been filed and as such, the same is liable to be dismissed. The present complaint  is bad for misjoinder and non joinder of the necessary parties. The manufacturer of the product in question has not been made as a party in the present complaint. On merits, it is alleged that the warranty of the AC in dispute  has already been elapsed from the date of purchase of the product. It is submitted that the said AC in dispute was purchased by the complainant from Opposite Party vide bill dated 14.11.2014 for a sum of Rs.36,000/-. The present complaint being out of warranty period of one year of the product is liable to be dismissed. It is submitted that as per the inspection of the mechanic/ expert of the Opposite Party, it has come to the notice that the said AC in dispute  remained running and its seals were also broken. In fact, the complainant remained using the said AC in dispute  and a concocted story is made out by the complainant in the complaint under reply. The present complaint is bad for mis joinder and non joinder of the necessary parties. The manufacturer of the said product has not been made as a party in the present complaint. It is submitted that the said AC was purchased by the Opposite Party being new Branch from Chopra Radio & Electric Works vide invoice dated 12.11.2014 for Rs.34,700/- and the same was sold to the complainant vide invoice dated 14.11.2014 for a sum of Rs.36,000/-. The complainant has purchased the Air Conditioner in question after inspection of the same and also after satisfying himself in all respect.  Remaining facts narrated in the complaint are denied being incorrect and a prayer for the dismissal of the complaint.  

3.       In his bid  to prove the case, complainant tendered  his duly sworn affidavit Ex.C1 in support of the allegations made in the complaint and copies of documents Ex.C2 to Ex.C4 and Ex.C6 and closed the exparte evidence.

4.       On the other hand, after filing the written version, none appeared on behalf of the Opposite Party, hence Opposite Party was proceeded against exparte vide order dated 16.2.2017 of this Forum.

5.       We have heard the ld.counsel for the complainant and have carefully gone through the evidence on record.

6.       From the perusal of the evidence on record, it becomes evident that in the marriage, the complainant  gifted a Split AC ISI 5 after purchasing from Opposite Party on 14.11.2014 for Rs.36,000/-, but however, due to spare AC in the In-laws of my niece, they did not use the AC in dispute in the summer season of 2015. In the month of June 2016, at the time of installing the said AC, the mechanic of Opposite Party told that the unit of the AC in dispute was already working and it was old one. The niece of the complainant immediately told the complainant regarding the old AC sold by Opposite Party and also astonished to see that the seals of AC in dispute were already opened. Photographs of AC Unit snapped on the spot are enclosed herewith. The complainant immediately contacted  Opposite Party regarding the selling of old AC in dispute to the complainant and after seeing this, the Opposite Party assured that the AC in dispute would be replaced, but till date the Opposite Party is lingering on the matter on one pretext or the other. On the other hand, though at initial stage, Sh.Gaurav Vinayak Advocate appeared on behalf of the Opposite Party and also filed written version, but at the time of evidence, none appeared on behalf of the Opposite Party and in this way, the Opposite Party was proceeded against exparte.  As such, the evidence produced by the complainant has gone unrebutted on record. In this way, the Opposite Party has impliedly admitted the correctness of the allegations made in the complaint. It also shows that Opposite Party has no defence to dislodge the complaint. So in such a situation, the  Opposite Party is  definitely liable to replace the Air Conditioner in question with new one of same make and model.

7.       Consequently, the instant complaint succeeds  and the Opposite Party is  directed to replace the Air Conditioner in question with new one of same make and model within one month from the date of receipt of copy of this order, failing which the Opposite Party is liable to   refund the price value of Air Conditioner in dispute of Rs.36,000/- to the complainant  alongwith interest @ 6% per annum from the date of passing of the order until full and final payment. Opposite Party is  also directed to pay Rs.2000/- to the complainant on account of compensation for causing mental tension and harassment besides Rs.1000/- as litigation expenses.  The complaint stands allowed accordingly. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

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