Delhi

North

CC/142/2018

MUKESH YADAV - Complainant(s)

Versus

M/S. WHIRLPOOL INDIA LTD. & ORS. - Opp.Party(s)

09 Sep 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

Consumer Complaint No.142/2018

In the matter of:     (As per Amended Memo of Parties)

Mukesh Yadav

S/o Sh.Jai Singh Yadav

R/o H.No.251, Gali No.3

Block A-1 Exn. Sant Nagar

Burari, Delhi-110084                                                         …Complainant

Versus

1. M/s.Whirlpool India Ltd

Regional Corporate Office

Whirlpool House

Plot No.40, Sector-44

Gurugram-122002 (Haryana)...Opposite Party-1

2. Key Tek Solution

B-54, Badli Extension

Main Road, Delhi-110042

(Authorised Franchise/Partner of OP-1)...Opposite Party-2

 

ORDER

09/09/2024

Harpreet Kaur Charya, Member

The present complaint has been filed by Sh.Mukesh Yadav, the complainant against M/s Whirlpool India Ltd. as OP-1(Manufacturer) and Key Tek Solution as OP-2 (authorised service centre of OP-1) with the allegations of deficiency in services and unfair trade practice.

1. During the course of proceedings as OP-2 could not be served, on 28/04/2022 the complainant stated that OP-2 is only the Service Centre of OP-1 and even without the service to OP-2, the complaint can continue particularly in the view of the fact that AMC, which is a subject matter of this complaint was issued by OP-1 and the Service Centre is only the agent of OP-1. Hence, they were not served. 

2. Briefly stated, facts as per the complaint are: on 25/05/2016, the complainant purchased a Whirlpool Air Conditioner (Window AC 1.5 MT Magicool 5S 40022) S.No.INM162000689 for Rs.26,900/- . It has been alleged by the complainant that there were several problems in the AC right from the beginning.  For the first time a complaint was registered with OP-1 on 20/04/2018.  Service technician from OP-2 visited on the same day and charged Rs.2350/- for gas refill vide receipt No.114. 
3. On 21/05/2018, the complainant paid Rs.3,915/- vide cheque No.200723 to OP-1 on account of Annual Maintenance Charge (AMC) under AMC Plan HP77850563 for period of one year from 21/05/2018 to 20/05/2019 bearing service request No.DL051817942.  It was informed to the complainant that said plan covered all parts for one year and the requisite documents will be provided within 10 days but the same have not been supplied despite repeated visits and requests. 
4. Again on 30/05/2018, vide complaint No.DL0518028961, the service technician of OP-2 detected that there was leakage from the cooling coil which required replacement. It was further informed by the said technician that the cooling coil was not available with them and took Rs.530/- as visit charges.
5. The complainant has alleged that OPs have failed to provide the cooling coil and repair the AC despite the fact that it was covered under Annual maintenance due to which, the complainant has been forced to live without AC in the scorching heat of summer .  This is deficiency in services and wilful negligence on the part of OPs.
6. A letter/notice dated 15/06/2018 was served to OPs. However, despite service the said notice was neither replied nor complied with.  Feeling aggrieved by the act/omission on part of OPs the complainant has prayed for direction to direct OPs to replace the Whirlpool Air Conditioner (Window AC 1.5 MT Magicool 5s 40022) with similar and same kind with a extended warranty of one year; compensation alongwith litigation expenses of Rs.50,00/- or any other relief which the forum deemed fit and proper.
7. The complainant has annexed the Retail invoice dated 25/05/2016 as      Annexure-A, Temporary Cash Receipt dated 20/04/2018 as Annexure-B, Screen shot of SMSes dated 20/04/2018 and 30/05/2018 as Annexure-C, Temporary Cash Receipt dated 30/05/2018 as Annexure-D, letter/notice dated 15/06/2018 to OP-1 as    Annexure-E, with the complaint.   
8. Notice of the present complaint was issued to OP-1 and OP-2 only.  The seller Jwala Electrical & Home Appliance, initially impleaded as OP-2 (Seller) was deleted from the array of parties vide order dated 30/07/2018 and thereafter Amended Memo of parties was filed by the complainant.
9. Written statement was filed by OP-1.  It was submitted thatOP-1 never denied to provide services under warranty and the complaint registered by the complainant has been attended by the engineer of the OP-1.  The AC was out of comprehensive warranty and the same cannot be replaced as the complainant has not placed on record the warranty card.
10. It has been submitted that as a goodwill gesture and being the customer centric company OP offered replacement by deducting 40% value as the complainant has used the AC for more than two years and the same is out of comprehensive warranty.       
11. The complainant has neither alleged any specific manufacturing defect nor has claimed that the alleged defect cannot be rectified.  No expert report has been filed by the complainant in support of his allegations.  Rest of the contents of the complaint have been denied with the prayer for dismissing the complaint with cost.   
12.  Rejoinder to the written statement was filed by the complainant. It has been submitted that OP-1 is trying to shield OP-2 and is in collusion with OP-2 to usurp and dupe the AMC money from the consumer.  It has been reiterated that OP-2 never removed the defect despite the product was covered under AMC and OP-1 even failed to provide the requisite documents.   Rest of the contents of the complaint have been reaffirmed and those of the written statement have been denied.
13. Evidence by way of affidavit was filed by the complainant, deposing the contents of his complaint and rejoinder.  He has relied upon the annexure filed with the complaint. 
14. Sh.Karan Kohli, Manager (Legal) has been examined on behalf of OP-1, stating that the contents of the reply filed by OP-1 may be read as part of his affidavit.   They have annexed the Power of Attorney dated 07/09/2018 with the affidavit. 
15. We have heard the submissions made by the Ld. Counsel for OP-1 and perused the material placed on record, as the complainant has stopped appearing.  We have also gone through the written arguments filed by the parties.  The date of purchase on 25/05/2016 is not in dispute and so is AMC. The complainant has alleged that OP failed to repair the Air Conditioner despite the fact that it was covered under AMC which is supported by Annexure-B (SMS dated 30/05/2018) &      Annexure C (Service request dated 21/05/2018). 
16. The complainant has alleged that he registered a complaint bearing No.DL0518028961 on 30/05/2018; same has been admitted by the OP.  OP has also admitted that the cooling coil was leaking and the engineer charged Rs.530/- from the complainant as visit charges. Further, in the said para 5 of the written statement, the OP-1 has submitted that they were ready to replace AC as a goodwill gesture and offered the complainant to replace the AC by deducting the 40% value as the complainant had already used the AC for more than two years and the same was out of comprehensive warranty.  The said offer was declined by the complainant.  OP-1 has not filed any document to show that the said offer was made to the complainant before filing of present complaint. It is only in the written statement the OP-1 has come up with this defence and seems to be an afterthought.
17. At the same time this fact also cannot be ignored that complainant though has alleged that right from the beginning there were issues in the working of Air Conditioner, however, the same is not supported by any document.   It is seen from para 3 of the complaint ,the first complaint is made on 20/04/2018, this implies that the complainant has used the Air Conditioner for almost two years without any complaint/issue.
18. Since, existence of AMC is not in dispute, the complaint is only with respect to non delivery of services as represented by OPs at the time of entering into Annual Maintaince Contract.  As observed by Hon’ble Delhi State Consumer Disputes Redressal Commission in FA No./18/2022 M/S Eureka Forbes Ltd. Vs. Ms. Neelam Upmanyu  D.O.D. 15.03.2023 that :-
    1. “9. It is pertinent to note here that Annual Maintenance Contracts are common in several industries, including healthcare, information technology, and retail. Across all sectors, it is a generic idea that can be used to meet a variety of needs for maintenance of an article purchased. AMC provides satisfaction and peace of mind to the customers during the contract duration because, the contract contains maintenance, regular check-ups, and routine work to regulate the performance of the device. In the present case, it is clear from the material on record that there were recurrent issues in the purifier which the Respondent was made to face and pay for, even during the subsistence of the AMC period, thus defeating the whole purpose of availing an AMC.”

19.The complainant has relied on the judgment of Hon’ble Consumer Disputes Redressal Commission  in FA No.30/2004  titled as Interocean Shipping India Limited vs Kirloskar Oil Engines Ltd. D.O.D. 29/08/2008 states :-

“So far as the charge of deficiency in service is concerned it has not been effectively controverted as the defects pointed out by the appellant in the generator could not be removed. This certainly amounts to deficiency in service as even if after the expiry of warranty, the generator had developed defects does not mean that the respondent was absolved from the liability of removing the defect as and when approached. For this limited deficiency in service, we allow the appeal with the direction to the respondent to pay Rs.10,000/- as compensation and Rs.5,000/- as cot of litigation.”

20. Thus, in the light of above judgements and discussion, sale of AMC to the complainant by OP-1 by falsely representing that the services are of a particular standard, quality or grade but failure to fulfil their part of obligations under the contract amounts to unfair trade practice on part of OP-1. Further, OP-1 despite charging AMC amount, has also failed to repair the AC definitely amounts to deficiency in services. This, act/omission on the part of OP-1 has caused mental agony and harassment to the complainant.
21. Regarding the prayer of the complainant for the replacement of the AC with extended warranty, we feel ends of justice will meet if refund is directed instead of replacement.  We are relying on the judgment in the matter of “Jugnu Dhillon Vs. Reliance Digital Retail Ltd. II (2014) CPJ 17 (Del.)” passed by Hon’ble SCDRC, Delhi, wherein it has been held that:-

 “14. Taking overall view of the matter, we are of the opinion that in the above mentioned circumstances where the AC have become defective immediately after purchase (in this case because for three months AC remained un-operational due to winter season) in that circumstances the agony of the consumer cannot be imagined when the consumer had purchased something for making its life better and instead of making her and family members life comfortable the consumer is put into much harassment and mental agony.

15. This Commission on number of occasions have reiterated that in the event when a product is found to be defective at the very beginning, it is always better to order for the refund of the amount because replacement of the product will never satisfied the consumer because the consumer had lost faith in that company’s product and if the repaired product is again returned to the consumer and if develops the defect again then the consumer will be put to much larger harassment because he had to fight another bond of litigation which will be highly torturous.”

22. As the complainant has already used the Air Conditioner for a period of two years and considering the expected life of an Air Conditioner as 8-10 years. We are taking the depreciation @ 12.5% per annum. Therefore, in the facts and circumstances of the present complaint and in the interest of justice, we direct OP-1 as follows:

1. To refund Rs.20,175/- being the 75% of the depreciated value of the Invoice amount of Rs.26,900/-
2. To pay compensation of Rs. 15,000/- on account of mental harassment and agony.
3. We also direct the complainant shall return the AC to OP-1 upon receipt of Rs. 35,175/- from OP-1 .It is further clarified that any cost of de-installation and carriage shall be borne by OP-1.
4. The order be complied within a period of 30 days from the date of receipt of this order. In case of non-compliance OP-1 shall be liable to pay interest @7% per annum from the date of order till realisation.

     Office is directed to supply the copy of this order to the parties as per rules. Order be also uploaded on the website.  Thereafter, file be consigned to the record room.

 

 

(Harpreet Kaur Charya )         Member

(Ashwani Kumar Mehta)                Member

 

                                               (Divya Jyoti Jaipuriar)

                                                                                                         President