The case of the complainant is that complainant purchased one Hitachi Make 1.5 ton air-condition machine (M RAU 518 LTDA/13, OD 130 D 06194, SE 130D 01203) from the op on full payment price of Rs. 47,000/- and receipt of the payment of the said machine from the complainant  the air-condition machine was delivered and installed at the residence of the complainant’s address and warranty period of the said machine was for one year and validity of the warranty of the said machine was up to 28.04.2014.  But unfortunately on 02.03.2014 the said air-condition machine became out of order and immediately a complaint was lodged by the complainant to the op vide complaint No. 14032200705 requesting the op to make necessary repairing of the same at the earliest opportunity and pursuant to such complaint of the complainant and on 08.04.2014 one technician attached to the op company paid a visit to the residence of the complainant and detected the fault or defect of the said air-condition machine and assured that such fault or defect of the machine in question would be cured at free of cost by the op company.

          Although a considerable period of time has already been expired but despite repeated requests and persuasion of the complainant, the op did not take any step to repair the fault or defect and as a result of which complainant and their family have faced a lot of sufferings for non-availability of the said air-condition machine especially during this scorching summer and finding no other alternative complainant lodged a complaint to the Battala Police Station for proper relief in the matter and thereafter one lawyer’s notice was sent on 05.05.2014 by the complainant to the op with request to make necessary repairing of the fault or defect of the above air-condition machine or replace the same by installing a similar new machine in its place at free of cost within 7 days from the date of receipt of the said notice.

          After receiving the said lawyer’s notice on 08.05.2014 op did not respond and purposely avoided the service of the said lawyer’s notice and for which for negative attitude of the op and for not discharging their liability as per warranty period they have adopted unfair trade practice and at the same time complainant suffered harassment mentally and physically and financially as he has been lost of Rs. 47,000/- purchased of such new one and in the above circumstances, complainant has prayed for replacement of the said air-condition machine or refund of the same and also compensation.

          On the other hand op by filing written statement submitted that the entire allegation is false and fabricated and it is specifically mentioned that as per complaint made by the complainant one engineer of the manufacturing company visited the premises of complainant on 08.04.2012 where the said air-condition machine was installed and found that due to shortage of gas, the said air-condition machine was not functioning properly and as such assured the complainant that they will communicate the said problem to their company and will solve the problem as early as possible.

          Op further stated that as per advice of one engineer, one technician also visited on 10.05.2014 to the complainant’s house to serve their service for repairing but it was found that there was no leakage.  So, machine is required to be taken into workshop.  But it was not possible for the engineer to overcome the problem and engineer requested the Mrs. Mousumi Ghosh the daughter of the complainant who was present at that time to bring the said alleged air-condition machine.  But the said Mousumi Ghosh the daughter of the complainant deliberately and intentionally refused to give and to handover the said alleged air-condition machine on the plea that her father is out of station and after coming back from Chennai to Calcutta his father will contact with the op and as such due to willful and deliberate refusal to handover the air-condition machine which was beyond the control of the service provider.  So, there was no negligence on the part of the op.  Further it is submitted that even after 10.05.2014 another service provider again went to the complainant’s premises on 20.05.2014 to bring the said air-condition machine but the complainant refused to deliver the said machine by mentioning that he sent a demand notice so he was unable to deliver the said machine for repair.  So, service provider returned back without repairing the same.  But it is fault of the complainant.  But all other allegations are denied by the op and thereafter no notice dated 05.05.2014 was ever served either upon the op or the manufacturer company.  So, in the above circumstances, op has prayed for dismissal of this case.

Decision with reasons

          After proper study of the complaint including the written version and also the materials documents as produced by the complainant and also considering the arguments advanced by the Ld. Lawyers of both the parties, it is found that op put 36 questions to the complainant.  But complainant in fact has not answered the question line by line.  But conjoining the question Nos. 1, 2 &4 one answer is given and conjoining of question Nos. 05 to 16 another answer is given and further again conjoining question Nos. 17 to 18 answer was given and in respect of question Nos. 20 to 25 another answer is given and considering that answers of the complainant, it is clear that complainant only to avoid to give the proper answer made by the op adopted such procedure to answer conjointly not specifically for which we have gathered that there was some fault on the part of the complainant and no doubt against such questions, complainant has not denied that op’s engineer visited thrice and that is proved.

          But fact remains for some reasons or otherwise only to get back the money or to get the fresh air-condition machine such type of objective answer has been given which is not clear in nature and in fact complainant has not answered all the questions specifically for which we are convinced to hold that there was laches on the part of the complainant for which they did not permit the engineers of the manufacturing company to take back the same for proper repairing etc. 

          Truth is that engineers of the manufacturing company went there.  Fact remains there was fault and that could not be cured in the house of the complainant.  So, the manufacturing company’s engineer requested the complainant’s daughter to permit them to take back, but the daughter of the complainant did not permit and subsequently then after return from Chennai to Kolkata, complainant did not go to the op to report for taking back the same.  It indicated that there was fault on the part of the complainant.

          But truth is that there is defect in the said machine.  In the above situation we are convinced to hold that there is such provision for giving the op a chance to take back the said machine and to make it free from all defects and to install the same again at the place where it was fixed by the op after purchase of the complainant.  But in the meantime the critical situation is created on the ground that complainant already purchased another air-condition machine for not getting service of the disputed air-condition machine.  So, invariably the Ld. Lawyer for the complainant submitted that they had no desire to get back such air-condition machine after repairing because not getting any service even after new purchase they were compelled to purchase another machine and which is evident from the document, which is purchased by the complainant in such a critical situation so we feel that if op installs the said air-condition machine in that case it shall be the burden of the complainant.

          So, to satisfy the complainant and also considering the dissatisfaction of the complainant we are directing the op and their manufacturing company to refund the entire amount of Rs. 47,000/- and to remove the present disputed air-condition machine at once on proper receipt and that would be the best procedure for implementing the vital theorization satisficing already a theorization of Nobel Laureto Arthur Simon.

          In the light of the above observation we are directing the op and their manufacturing company to refund the entire amount of Rs. 47,000/- after removing the disputed air-condition machine from the house of the complainant at their own cost.  Considering the dissatisfaction of the complainant for getting no such service just after purchase of the same at a cost of Rs. 47,000/- no doubt it is deficient manner of service and fact remains owner and manufacturer are equally responsible for that.

          Accordingly, the complaint succeeds.

          Hence, it is

ORDERED

          That the complaint be and the same is allowed on contest with cost of Rs. 2,000/- against the op.

          Op is hereby directed to repay the price amount of the said air-condition machine that is Rs. 47,000/- within 15 days from the date of this order failing which for non-compliance of the Forum’s order, op shall have to pay penal interest  at the rate Rs. 200/- per day and if it is collected same shall be deposited to the Forum’s account.

          Op is directed to comply the order very strictly within the stipulated period failing which penal action u/s 27 of C.P. Act shall be imposed for which he shall be liable to pay further penalty and fine.