FINAL ORDER/JUDGEMENT

SMT.   SUKLA SENGUPTA,   PRESIDENT  

The complainant filed a petition of complaint U/s 12 of CP Act, 1986.

The fact of the case in brief is that the complainant is residing under the jurisdiction of this commission and the OP-1 is also running his business under the jurisdiction of this commission. It is further case of the complainant that he purchased an AC machine (1.5 split Daikin AC) at a consideration of Rs. 33,500/- (Rupees thirty three thousand five hundred) only  and also paid additional installation charge of Rs. 2,000/- only on  27.06.2017.

 It is further stated that although the challan is of dated 27.06.2017 with an invoice No. RR/SA/BAI/1718/0140 was delivered to his residence. It is further stated that the professional mechanic for installation of AC machine in the house of the complainant has sent by the OP-2 on  07.07.2017. It is alleged by the complainant that the said ac machine was not installed properly by the man of the OP-2 but that mechanic demanded Rs.  2,000/- out of Rs.  4,285/- only for installation charge against a rough bill (Kacha Rashid). The complainant raised objection but the professional sent by the OP-2 assured the complainant that they will issue a proper bill and the AC was started and working regularly. Then the complainant refused to take any other document or bill from the people who came to install the AC because they did not issue proper document with stamped rather they refused to issue proper documents and misbehaved with the complainant. Having no other alternative, the complainant compelled to approach the Consumer Affairs Department but the negotiation made by the Consumer Affair Department dated 25.10.2017 was failed and the cause of action arose to file the case. The complainant finally alleged the purchased AC in question has not been working till the date of filing of the case.

Hence, the instant complaint is filed by the complainant with a prayer to direct the OP member to pay Rs. 15,000/- to the complainant as compensation for harassment mental pain and agony suffering by the complainant caused by the OP members.

The complainant has also prayed for replacement of the AC machine in its latest model  and/or refund the consideration money paid by the complainant at the time of purchasing AC machine and also installation charges along with litigation cost of Rs. 7,000/-.

Both the OP members have contested the petition of complaint by filing separate WVs denying all the material allegations levelled against them. The OP-1 has admitted in his WV that he sold the Daikin AC machine in question to the complainant as an agent of the OP-2. So, by the principle of vicarious liability the OP-1 is not responsible for any acts if done on his part. He further alleged in WV that the complainant made never made any allegation or complaint about the goods sold to him by the OP-1 on behalf of the OP-2. He denying the allegation of non installation of the AC machine by the man of the OP-1 or overcharging installation fees when it was the promise of the OP-1 that the sold ac machine would be installed in the house of the complainant at free of cost.

It is the further case of the OP-1 that the installation of AC machine in question was free of cost  but the charge was imposed for installation of accessories  as per contract and the same is/was still unpaid by the complainant in full. Hence, the petition of complaint is baseless, false, frivolous without any cause of action. Thus the case is liable to be dismissed with cost.

The OP-2 M/s Daiking Air Conditioning Pvt. Ltd. Kolkata has stated in their WV  that the commission i.e. Unit 2 Kolkata  has no territorial jurisdiction to  try the case because the registered address of office of the OP-2 is at 210, First Floor, Okhala, Industrial Area, Phase-3, Delhi-110020 which does not fall under the jurisdiction  of this commission.  So, the petition of complaint is suffering from cause of action as well as territorial jurisdiction of this commission.

It is the further case of the OP-2 that the AC in question was installed by unauthorised mechanic/agent having no technical acumen. Hence, the answering OP-2 is not otherwise liable for the acts/omission of the complainant at the same time the unauthorised installation is amounts to breach the terms and  condition of warranty as mentioned in the warranty card.  The service of the product in question must be installed only from DAIPL or by an unauthorised dealer or distributor of DAIPL and in the present case the product in question has not been installed by the authorised dealer or distributor of DAIPL. Hence, the petition of complaint is not tenable in the eye of law.

 It is the further case of the OP-2 that the petition of complaint is frivolous and vexatious and is liable to be dismissed U/s 26 of CP Act. On the other hand, the OP-2 is always ready to resolve the issue of its customer and if there is/was any fault in the AC in question. It would be resolved earliest by the OP-2. It is further case of the OP-2 that the demand of the complainant is baseless and unjustified. Thus, the case is liable to be dismissed with cost.

 In view of the above stated pleadings the points of consideration would be as follows.

1. Whether the case is maintainable in its present formed in law?

2. Whether the complainant has any cause of action to file this case or not?

3. Whether the complaint is a consumer within the ambit of CP Act?

4. Whether there is/was any deficiency in service on the part of OP members?

5. Whether the complainant is entitled to get relief as prayed for?

6. To what other relief or reliefs is the complainant entitled to get?

Decision with Reasons

All the points are taken up together for convenience of discussion and to avoid unnecessary repetitions.

On a close scrutiny of the materials on record, it appears that the case has been filed U/s 12 of CP Act 1986. As per provision of 1986 it is/was settled principle that if any of the OPs are residing or running its business or cause of action arises within the jurisdiction of this forum then the said would have territorial jurisdiction to try the case in spite of residing the other parities to this case outside of territorial jurisdiction of the forum. In the instant case from the material on record, it is revealed that the complainant and the OP-1 are residing and running his business within the territorial jurisdiction of this forum.   Admittedly the OP-1 is the agent or dealer of the OP-2 and the complainant has purchased the AC in question from the OP-1 on payment of full consideration money of Rs. 31,500/-.

From running Page No. 15 of the  materials on record as submitted by the complainant along with the petition of complaint, it is found that from voucher dated 05.06.2017  being No. A5110. The complainant paid Rs.  31,500/- to the OP-1 Rohit Refrigeration Company along with another cash memo dated  27.06.2017 being No. A5241.   He paid Rs.  2,000/-  in total amount Rs.  33,500/-.

So, admittedly the complainant purchased the AC machine in question on payment of Rs. 31,500/-  + Rs.  2,000/- additional charges in total Rs.  33,500/- from which it is held by this forum that the complainant is a consumer under the OP members and the OP members are the service provider

 it is the case of the OP-2 that the complainant is not a consumer and the petition of complaint filed by him cannot be entertained but from the materials and evidence on record, it appears that the matter was approached to the consumer affairs but it was filed on 25.10.2017 then the complainant forced to file the petition of complaint before this forum. So, it is palpably clear that the cause of action to file the case has arosed on and from 25.10.2017 and the complainant has filed the case on 25.06.2018 i.e. well within the limitation period. From which it is held by this forum that the complainant has/had cause of action to file this case before this forum. The OP-2 stated in so many words in WV and evidence in chief that the complainant never made any complaint regarding non functioning of the AC machine in question and if the complainant would inform the matter to the OP-2 then the OP-2 should take necessary action to the effect. It is the case of the OP-1 that he is registered dealer/agent of the OP-2 and it is also admitted by both the OPs that the complainant purchased the AC machine from the OP-1 and admittedly the said machine was installed by the man of the OP-2 and even after the same it is/was not functioning properly rather the man who went to install the AC machine in question took installation charge of Rs.  2,000/- whichever is the matter. It is the admitted fact that the complainant purchased an ac machine from the OP-1 on payment of Rs.  31,500/- and subsequently he paid additional charge of Rs.  2,000/- in total Rs.  33,500/-. if the AC machine in question is/was not functioned since inception properly then the complainant has/had no reason to come before this forum for getting relief but even on repeated request from the end of the complainant neither the OP-1 nor the OP-2 pay any heed to the request of the complainant and to replace the defective AC machine or refund the money which should be considered by this forum as the gross negligence and deficiency in service on the part of both the OPs Nos. 1 and 2.

Though the OP-1 tried to evade his responsibility by stating inter alia that he is mere agent/dealer under the OP-2. It is vicarious  liability of the OP-2 to pay compensation to the complainant if any or to replace the AC machine in question.

However, considering the above fact and circumstances as well as evidence on record, this commission is of view that both the OPs held responsible for the misdeed done by them and caused harassment mental pain and agony to the unfortunate complainant for which both of them should be liable to be compensated.

Hence,

In view of the discussions made above, this forum is of view that the complainant put be able to prove the case against the OP members beyond all reasonable doubt.

 The case is properly stamped.

All the points are decided in favour of the complainant.

Hence

Ordered

That the case be and the same is allowed on contest against the OPs 1 and 2 with cost.

The complainant do get the decree as prayed for.

Both the OPs are directed to refund the amount of Rs.  33,500/- to the complainant either jointly or severally or to replace the defective AC machine by a new one (latest model) within 45 (forty five) days from this date of order.

The OPs are further directed to pay compensation to the complainant of Rs. 15,000/- for harassment mental pain and agony along with interest @ 9 % on the amount from the date of fling of the case till realisation either jointly or severally along with litigation cost of Rs.  7,000/-.

The OP members are further directed to comply the direction of this forum as mentioned above within  45 (forty five) days from the date of this order i.d. the complainant will get further interest @ 6 % p.a. on the entire decreetal amount from the date of default till realisation.

 If the OP members will fail to comply the decree within stipulated period, the complainant would be at liberty to execute the decree through the court.  

Copy of the judgment be supplied to the parties free of cost as mandated by the CP Act, 2019. The Judgement be uploaded forthwith on the website of the commission for perusal of the.