IN THE COURT OF THE LD. DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT SILIGURI.
CONSUMER CASE NO. 24/S/2019. DATE OF FILING: 02-04-2019.
BEFORE PRESIDENT : SRI KANHAIYA PRASAD SHAH,
President, D.C.D.R.C., Siliguri.
MEMBERS : SRI TAPAN KUMAR BARMAN &
SMT. MALLIKA SAMADDER .
COMPLAINANT : SMT. SHILA GUPTA,
Wife of Sri Jai Prakash Gupta,
Resident of R.C.M. Road, P.O. & P.S.- Kalimpong,
Dist.- Darjeeling- 734301.
O.Ps. 1. : M/S. SANJAY KUMAR GUPTA,
22, Shiv Mandir Road, P.O.-Sevoke Road,
P.S.- Siliguri, Dist.- Darjeeling-734001.
2. : HAVELLS INDIA LTD.,
904, 9th Floor, Surya Kiran Building K.G. Marg,
Connaught Place, New Delhi- 110001.
3. : HAVELLS INDIA LTD.
Branch Office Galaxy House, 2nd Floor,
Sevoke Road, P.O. & P.S.- Bhaktinagar,
Dist.- Jalpaiguri- 734001.
FOR THE COMPLAINANT : Sri Janmejay Ganguly, Advocate.
FOR THE OP No. 1 : Bijoy Saha, Advocate.
FINAL ORDER/J U D G E M E N T
Date: 08.01.2021.
Briefly stated the facts relevant for the disposal of this complaint are that the complainant purchased one Lloyd AC, SAC, 1.5 Ton Hot & Cold – LS 18AOOOHC on 09.06.2018 from OP No1 at a consideration of Rs. 30,000/- including GST. At the time of installation of the said A.C. machine at the residence of the complainant, she noticed that it was producing unwanted sound and on enquiry, the installation personnel said that such sound is usual for the new installation and the sound will gradually go away after use for some days.
But as the days passed, the complainant had noticed that there was no sign of the sound’s being reduced, rather, the sound was increasing day by day, causing disturbance to the sleep of her family members. The complainant lodged a complaint to the service centre of the OPs and the service engineers came as many as 03 times at the residence of the complainant to make the installed Air Condition machine good but could not resolve the issue.
However, on a visit of 28.09.2018, the service technician prepared a report and remarked therein that “customer set is minor sound,
Contd….P/2.
-:2:-
customer want replacement, it is not acceptable, so call cancelled”. As the service Engineers of the OPs could not remove the sound problem, the complainant asked the OP No.1 to replace the A.C. but the OP No. 1 denied to do so.
On 04.11.2018, the husband of the complainant wrote online to the National Consumer Helpline (NCH) who in turn, advised the complainant’s side to register a grievance with the concerned company and wait for their response. Subsequently, the NCH informed the complainant on 26.12.2018 about the Consumer Forum process. The OP-Company informed the NCH on 10.11.2018 that the Redressal of the grievance is in process. Finally finding no response from the OP-Company, the National Consumer Helpline advised the complainant on 15.01.2019 to file a case in the concerned Consumer Forum.
The Digital-I service Manager of the OP informed the complainant by a letter dtd. 11.12.2018 that as per diagnosis of the technical engineer, the product could not show any defect and unless the product has some technical fault, replacement/repair or refund of price is not permissible.
It is further alleged that the OP sold her the said defective A.C. Machine intentionally under impression that the complainant hailing from Kalimpong would not be able to come down to Siliguri time and again asking for replacement of the faulty A.C.
Hence the consumer filed this case to get her grievance redressed.
The OP No. 1, being the seller, entered his appearence personally and filed a petition on 22.05.2019 praying for time to file written version. As the OP No. 1 received summon 27.04.2019, he was allowed a time till 10.06.2019 to file w/v. As the OP No. 1 could not filed w/v within the statutory period by rightly utilizing the time he himself prayed for, the case proceeded ex-parte against him.
From the Track Consignment report filed by the complainant, it is seen that the notice to the OP No. 2 has been delivered on 29.04.2019 and the record reveals that this OP, being the manufacturer of the product in question appeared on 10.06.2019 since the OP No. 2 failed to submit w/v within the statutory period ending on 13.06.2019, the case proceeded ex—parte against the OP No. 2.
The OP No. 3 received notice on 30.04.2019 as per A/D and as such the OP No. 3 being the Branch/local office of the manufacturing company (OP No. 2) was supposed to file w/v on or before 13.06.2019. But instead of filing w/v on that date, filed a petition praying for time to file w/v and such prayer was, of course, rejected and as such the case proceeded ex-parte against OP No. 3 also.
Thus the case proceeded ex-parte against all the OPs.
To prove her case, the complainant filed the following documents:-
- Bill of the AC dtd. 09.06.2018.
- Technician remark.
- Letter from the end of Ops dtd. 11.12.2018.
Contd….P/3.
-:3:-
- E-mail communications between complainant and the Ops.
- Grievance details submitted online to National Consumer Office.
On the basis of the above discussion, the following points come up for determination:-
- Whether the complainant falls within the definition of Consumer or not?
- Whether the OPs committed any unfair trade practice at all?
- Whether there was any deficiency in service on the part of the OPs?
- Whether the complainant is entitled to get any relief as prayed for?
DECISION WITH REASONS
All the 04 (four) points are taken up for discussion as follows:-
Points No. 1.
From the document as Annex- 1, i.e. tax-invoice dtd. 09.06.2018 issued by the seller, i.e. OP No. 1 to the complainant, it appears that the complainant purchased one A.C. Machine at a price Rs. 30,000/- including GST. As per Sec.-2 (1)(d) of the Consumer Protection Act, 1986, Consumer means person who buys any goods or hires/avails of any service for a consideration. Here in the instant case the complainant purchased the AC in question from the OP No. 1 at a price of Rs. 30,000/-. This document was not challenged by any of the 03 (three) OPs. Hence, the complainant falls obviously within the meaning of Consumer as per the C.P. Act.
Point No. 2 & 3.
At the time of attending the call on 28.09.2018 in response to the complaint ID No. HIL2609181 222220 dtd. 26.09.2018, the OP’s Technician, one Biplab, noted a remark- “customer set is minor sound problem, customer want replacement, it is not acceptable so call cancel”. The date of purchase by the complainant is 09.06.2018 while the date of visit was 28.09.2018. Therefore, it is within the warrantee period that the sound problem was attempted to be removed. The OPs’ technician could not, however, remove the sound problem of the AC machine, on the contrary remarked in writing that the customer’s want for replacement is not acceptable. The OPs’ technician also remarked “Not acceptable” against the “warranty status” particular. Commonsense tells that a technician’s responsibility is limited to passing comment from technical point of view only and whether the warranty status is applicable or not (in spite of being within prescribed period thereof) is purely a decision of managerial/administrative nature. Similarly, whether customer’s want for replacement is acceptable or not is not also a technician’s function. Such type of remark on the part of a technician is his extra jurisdictional one and hence one-sided, partial and hence not valid.
Contd….P/4.
-:4:-
By a letter dtd. 11.12.2018, the OP side informed the complainant that as per the diagnosis by the technician, the product has no defect and unless the product has any technical fault, repair/replacement or refund of price is not possible as per warranty policy. Therefore, the technical report left with the complainant and the technical diagnosis submitted to the Digital-1 service Manager do not tally with each other.
Thus point No. 2 and 3 is answered in positive/affirmative.
Point No. 3.
From the report of the technician left with the complainant during the visit of her residence on 28.09.2018 to attend the complainant ID HIUL2609181 222220 as well as letter dtd. 11.12.2018 of the Digital-I Service Manager, it is crystal clear that the OPs are not treating the sound, though minor, of the A.C. Machine while in work as technical/manufacturing fault. This Forum is of the considered view that minor sound problem is invariably a technical/manufacturing defect in as much as the technical support Engineer could not remove the sound problem through any repair and the irreparable sound problem is, of course, a manufacturing defect. The purchase date being 09.06.20018 the product, i.e. A.C. Machine is, as on 11.12.2018, certainly open to warranty policy. Viewed from this angle, the OPs violated the warranty policy of themselves.
In the result, the case succeeds. Hence, it is,
O R D E R E D
that the consumer case being no. 24-S-2019 be and the same is allowed on ex-parte against the OPs.
The OPs shall, either severally or collectively, refund the price of the A.C. Machine, i.e. Rs. 30,000/- with 5% interest thereon from the date of purchase OR replace the defective A.C. Machine by a workable and serviceable one of the same, brand, model and make and of same standard. The OPs are also liable to pay compensation of Rs. 50,000/-.
The OPs are further directed to pay Rs. 7,500/- as a cost of litigation to the complainant.
Payment should be made through an A/c payee cheque in the name of the complainant and be completed within 45 (forty five) days from the date of this order, failing which the total amount of Rs. 87,500/- (eighty seven thousand five hundred rupees) so awarded shall carry an interest @9% per annum from the 46th day of the order till realization in full.
In case of default, the complainant will be at liberty to put this order into execution through this Forum as per provision of law.
Plain copy of this judgment/final order be supplied to the parties free of cost.
