Tamil Nadu

South Chennai

CC/150/2014

M/s.Sumaathy Mahendran - Complainant(s)

Versus

M/s.ETA General Pvt Ltd., - Opp.Party(s)

K.Premkumar

20 Feb 2020

ORDER

                                                                             Date of filing      : 09.04.2014

                                                                               Date of Disposal : 20.02.2020

                                                                                  

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^ND Floor, T.N.P.S.C. Road, V.O.C. Nagar, Park Town, Chennai – 3.

 

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.                    : PRESIDENT

TR. R. BASKARKUMARAVEL, B.Sc., L.L.M., BPT., PGDCLP.  : MEMBER

 

C.C. No.150/2014

DATED THIS THURSDAY THE 20^TH DAY OF FEBRUARY 2020

                                 

Mrs. Sumathy Mahendran,

W/o. Mr. Mahendran,

No.129, Kamaraj Nagar,

Mathur, Union Road,

Periya Mathur,

(Near Beloved School),

Manali,

Chennai – 600 068.                                                        .. Complainant.  

                                                                                                  ..Versus..

 

1. M/s. ETA General Pvt.  Ltd.,

Represented by its Managing Director,

No.71, Sterling Road,

Nungambakkam,

Chennai – 600 034.

 

2. M/s. AIRY Business Centre Pvt. Ltd.,

Represented by its Managing Director,

Nos.2 & 3, Dharma Tower,

No.88, Nelson Manickam Road,

Choolaimedu,

Chennai – 600 094.

 

3. M/s. Ogeneral Fujitsu General Limited,

Represented by its President / Chairman,

No.1116, Suenaga,

Takatsu-Ku,

Kawasaki 213-8502,

Japan.                                                                    ..  Opposite parties.

Counsel for the complainant           : M/s. K. Premkumar & others

Counsel for the 1^st opposite party  : M/s. V. Balasubramanian &  

                                                           others

Counsel for the 2^nd opposite party : M/s. S.K. Chandrakumar & 

                                                           another

3^rd Opposite party                             : Ex-parte

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite parties 1 to 3 under section 12 of the Consumer Protection Act, 1986 prays to replace the O. General 1.5 Ton Split AC with Stabilizer with one of the latest model and to pay a sum of Rs.1,00,000/- towards compensation for deficiency in service, mental agony, hardship and inconvenience caused to the complainant along with interest at the rate of 12% p.a. from the date of complaint till the date of payment with cost to the complainant.

1.    The averments of the complaint in brief are as follows:-

The complainant submits that she is the consumer of the product involved in this consumer dispute viz O General 1.5 ton Split AC with Stabilizer, the 1^st opposite party is the main dealer, 2^nd opposite party is the  retailer/seller of the said A/c and the 3^rd opposite party is the manufacturer of the said A/c.  Believing the representation / advertisement of the 2^nd opposite party the complainant approached the 2^nd opposite party on 20.05.2013 made an offer to purchase the above said Air conditioner of the year 2013 and the complainant paid the price amount of O General 1.5 ton Split AC with Stabilizer of Rs.45,300/- to the 2^nd opposite party vide invoice No.2132.   The complainant submits that the said A/c was installed in her residence on 21.05.2013 by the Service Engineer M/s. Deen Coolers, Chennai deputed by the 2^nd opposite party.   The complainant submits that from the date of installation, the A/c was not functioning properly and on 22.05.2013, the said A/c totally stopped functioning and the serviceman was called up on to inspect the unit, the serviceman found that the unit is of the year 2011.  Thereafter, the complainant contacted the 2^nd opposite party with request to either to refund with interest or replace with the latest model of A/c unit.   But the 2^nd opposite party bluntly refused to heal the request of the complainant.

2.     The complainant submits that the A/c again was malfunctioned and the Service Sngineer of M/s. Deen Coolers was called to the complainant’s residence on several occasions viz 27.05.2013, 25.11.2013, 26.11.2013, 03.01.2015 & 09.01.2014 and finally, it was found that the A/c was having the following defects:-

(i)  No cooling capacitor, Processor,

(ii) Capacitor Processor, Electrical  Problem,

(iii) Outdoor unit full, Service done

(iv) Not working, Compressor Problem,

Thereafter, it was taken to the service centre and the defects were rectified and the said AC unit was re-installed on 04.02.2014 in the complainant’s residence and was working with effect from 04.02.2014.  The complainant submits that after repeated visits and phone calls of the opposite parties 1 & 2 and there was no response.  The complainant issued legal notice on 08.02.2014 to the opposite parties 1 & 2 calling upon them either to replace the above said A/c unit with new model or refund a sum of Rs.45,300/- with interest at the rate of 24% p.a. from 20.05.2013 till date of payment and a compensation of Rs.1,00,000/-.  Again, the complainant issued another legal notice to the opposite parties 1 & 2 on 17.02.2014 for which, the 2^nd opposite party sent reply notice dated:21.02.2014 with untenable allegation.  The act of the opposite party amounts to deficiency in service and unfair trade practice which caused great mental agony.  Hence, the complaint is filed.

3.      The brief averments in the written version filed by 1^st opposite party is as follows:

The 1^st opposite party specifically denies each and every allegation made in the complaint and put the complainant to strict proof of the same.    The 1^st opposite party states that there is no specific allegation raised either against the 1^st opposite party or the 3^rd opposite party in the complaint by the complainant.  Therefore, the complaint has to be dismissed against the opposite parties 1 & 3 in limine.  The 1^st opposite party states that he is not aware about the transaction took place between the complainant and the 2^nd opposite party.   The 1^st opposite party states that the complainant has not produced any document evidencing that the 2^nd opposite party sold the Air conditioners of the year 2013.   The 1^st opposite party states that the series of service reports filed by the complainant itself proves that routine services were performed and whatever complaint was attended to as per the warranty terms and conditions which reads as follows:-

        “3 (a) Subject to the above clause, any part of the Air-conditioner found defective, due to faulty material or workmanship, during the warranty period, shall be repaired or replaced with functionally working equivalent part by the company or Authorised Sales and Service Dealer only”.

 

4.     The 1^st opposite party states that the A/c unit was fully serviced as per the terms of the warranty and the complainant herself stated that the unit is working with effect from 04.02.2014.  The 1^st opposite party states that the complainant never approached the 1^st opposite party directly and they received legal notice dated:17.02.2014 from the complainant’s Counsel and the allegation raised in that are totally unrelated to the subject matter and thus unable to fathom as to what the actual grievance of the complainant.  The 1^st opposite party states that the complainant has not purchased the A/c from the 1^st opposite party where in, the unit was purchased only from the 2^nd opposite party. The 1^st opposite party states that no allegation of manufacturing defect of A/c.  The 1^st opposite party states that the complaint is vexatious one, bereft of any specific allegation against the 1^st opposite party and no deficiency in service on the side of the 1^st opposite party and hence, the complaint has to be dismissed against the 1^st opposite party.   

5.      The brief averments in the written version filed by 2^nd opposite party is as follows:

The 2^nd opposite party specifically denies each and every allegation made in the complaint and put the complainant to strict proof of the same.    The 2^nd opposite party denied that the A/c unit sold as manufactured in the year 2011 model instead of 2013.   The year of manufacture is shown in the body of the box and that cannot be tampered or hide by the dealers from the customers.  The Air conditioners are being sold based on the model number and not by the year.  The 2^nd opposite party states that the complainant admitted in his complaint that the regular services were done by the authorized service agent, M/s. Deena Coolers and rectified the defects and also, the A/c was working from 04.02.2014 as per the terms of warranty. The complainant has chosen to issue a legal notice dated:08.02.2014 after the problems were rectified as per her own statement in the paragraph 7 and the AC is working properly from 04.02.2014 therefore, the question of replacement or the compensation or refund of the AC amount do not arise at all.  On receipt of the legal notice dated:08.02.2014, the 2^nd opposite party sent reply notice dated:21.02.2014 in which, they have clearly explained that the 2^nd opposite party is only a dealer and not a service provider eventhough  whenever, the complainant is called for servicing the A/c, the same was attended to the satisfaction of the customer as per the norms of the warranty under the purview of the manufacturer by the 2^nd opposite party.   Therefore, there is no deficiency in service on the part of the 2^nd opposite party and hence, the complaint is liable to be dismissed.

6.     In spite of receipt of notice, the 3^rd opposite party has not appeared before this Forum and hence, the 3^rd opposite party was set ex-parte.

7.     To prove the averments in the complaint, the complainants have filed proof affidavit as her evidence and documents Ex.A1 to Ex.A12 are marked.  Proof affidavit of the 1^st opposite party is filed and documents Ex.B1 & B2 are marked on the side of the 1^st opposite party.  Proof affidavit of the 2^nd opposite party is filed and documents Ex.B3 to B8 are marked on the side of the 2^nd opposite party.

8.      The points for consideration is:-

1. Whether the complainant is entitled to the replacement of the new AC unit as prayed for?
2. Whether the complainant is entitled to a sum of Rs.1,00,000/- towards compensation for mental agony, hardship and inconvenience with interest at the rate of 12% p.a. with cost as prayed for?

9.      On point:-

After receipt of notice, the 3^rd opposite party has not appeared before this Forum and hence the 3^rd opposite party remained ex-parte.  Both the complainant and 1^st opposite party filed their respective written arguments.  Heard the 1^st opposite party’s Counsel.  Perused the records namely; the complaint, written version, proof affidavit and documents.   The complainant pleaded and contended that he has intended to purchase O General 1.5 ton split A/c with stabilizer (herein called the said for short) from the 2^nd opposite party retailer /Seller of the said A/c.   Further the contention of the complainant is that the 3^rd opposite party is a manufacturer of the said A/c.   The 1^st opposite party herein is the main dealer.    Believing the representation / advertisement of the 2^nd opposite party the complainant approached the 2^nd opposite party on 20.05.2013 made an offer to purchase the above said Air conditioner of the year 2013 and the complainant paid the price amount of A/c Rs.45,300/- to the 2^nd opposite party as per Ex.A1, vide invoice No.2132.   Further the contention of the complainant is that the said A/c was installed in a residence on 21.05.2013 by the Service Engineer M/s. Deen Coolers, Chennai deputed by the 2^nd opposite party.  

10.    Further the complainant pleaded and contended that from the date of installation, the A/c was not functioning properly and on 22.05.2013 the said A/c totally stopped functioning and a serviceman was called up on to inspect the unit and the serviceman found that the unit is of the year 2011.   Ex.A3 is the service report.   On a careful perusal of Ex.A3, nothing was mentioned by the serviceman in that the A/c is manufactured in the year of 2011.   At the same time, no other document produced to prove that the unit is manufactured in the year of 2011.    Thereafter, the complainant contacted the 2^nd opposite party with request either to refund the price of the A/c with interest or replace with the latest model of A/c unit.   But the 2^nd opposite party bluntly refused the request of the complainant.

11.    The complainant further contended that the A/c again was malfunctioned and the Service Engineer M/s. Deen Coolers was called to the complainant’s residence on several occasions viz 27.05.2013, 25.11.2013, 26.11.2013, 03.01.2015 & 09.01.2014 as per Ex.A2 to Ex.A8 and finally found that the A/c was having the following defects:-

(i)  No cooling capacitor, Processor,

(ii) Capacitor Processor, Electrical  Problem,

(iii) Outdoor unit full, Service done

(iv) Not working, Compressor Problem,

Thereafter, taken to the service centre defects were rectified and reinstalled on 04.02.2014 in the complainant’s residence and it was working with effect from 04.02.2014 which is an admitted fact on the part of the complainant.   For the service availed by the complainant from the 2^nd opposite party no pleading as that of the service charge has been paid by the complainant.   Further the contention of the complainant is that after repeated visits and phone calls of the complainant, the opposite parties 1 & 2 has not shown any response. Thereafter, the complainant issued legal notice dated: 08.02.2014 as per Ex.A9 to the opposite parties 1 & 2 calling upon them either to replace the above said A/c unit with new model or refund a sum of Rs.45,300/- with interest at the rate of 24% p.a. from 20.05.2013 till date of payment and a compensation of Rs.1,00,000/- is proved to be after thought on the side of the complainant that too, the complainant herself admitted that after the service the A/c was working with effect from 04.02.2014.  Again, the complainant issued another legal notice to the opposite parties 1 & 2 on 17.02.2014 Ex.A10 for which, the 2^nd opposite party sent reply notice dated:21.02.2014 as per Ex.A12 with untenable allegation and no deficiency on the side of the 2^nd opposite party. Hence, the complainant has constrained to file this complaint.

12.    The learned Counsel for the 1^st opposite party would contend that there is no specific allegation raised either against the 1^st opposite party or the 3^rd opposite party in the complaint by the complainant.  Therefore, the complaint has to be dismissed against the opposite parties 1 & 3 in limine.  Further, the contention of the 1^st opposite part is that he is not aware about the transaction took place between the complainant and the 2^nd opposite party.  Further the 1^st opposite party contended that the complainant has not produced any document evidencing that the 2^nd opposite party sold the Air conditioners of the year 2013.   The 1^st opposite party contended that the series of service reports filed by the complainant itself proves that routine services were performed and whatever complaint was attended to as per the warranty terms and conditions which reads as follows:-

        “3 (a) Subject to the above clause, any part of the Air-conditioner found defective, due to faulty material or workmanship, during the warranty period, shall be repaired or replaced with functionally working equivalent part by the company or Authorised Sales and Service Dealer only”.

13.    Further the contention of the 1^st opposite party is that  the A/c unit was fully serviced as per the terms of the warranty and the complainant herself pleaded in the complaint that the unit is working with effect from 04.02.2014.   Ex.B1 is the warranty.  Further the contention of the 1^st  opposite party is that the complainant never approached the 1^st opposite party directly and they received legal notice as per Ex.B2 dated:17.02.2014 from the complainant’s Counsel and the allegation raised in that are totally unrelated to the subject matter and thus unable to fathom as to what the actual grievance of the complainant.  Further the contention of the 1^st opposite party is that the complainant has not purchased the A/c from the 1^st opposite party where in, the unit was purchased only from the 2^nd opposite party.   Therefore, there is no deficiency in service on the part of the 1^st opposite party and the 1^st opposite party is impleaded as unnecessary party.  No documents produced by the complainant to prove the allegation against the 1^st opposite party.  Further the contention of the 1^st opposite party is that no allegation of manufacturing defect of A/c in the complaint proves that there is no inherent defect in the A/c unit.   Further the contention of the 1^st opposite party is that the complaint is vexatious one, bereft of any specific allegation against the 1^st opposite party and no deficiency in service on the side of the 1^st opposite party and hence, the complaint has to be dismissed against the 1^st opposite party.    

14.    The 2^nd opposite party denied that the A/c unit sold as manufactured in the year 2011 model instead of 2013.   The year of manufacture is shown in the body of the box and that cannot be tampered or hide by the dealers from the customers.  The Air conditioners are being sold based on the model number and not by the year. On a careful perusal of Ex.A1, the manufacturing year is also not mentioned at the time of purchase.   Further the 2^nd opposite party contended that the complainant admitted in his complaint that the regular services were done by the authorized service agent, M/s. Deena Coolers and rectified the defects and also, the A/c was working from 04.02.2014 as per the terms of warranty Ex.B3 to Ex.B7 are the copy of Service Reports.   But the complainant issued a legal notice on 08.02.2014 after the problems are rectified as per her own statement in para No.7 of the complaint and the A/c is working properly from 04.02.2014 and claiming replacement and compensation or refund of the A/c amount is afterthought on the part of the complainant and therefore, there is no deficiency in service on the part of the 2^nd opposite party. Further the contention of the 2^nd opposite party is that they sent reply notice dated:21.02.2014 as per Ex.B8 clearly explained that the 2^nd opposite party is only a dealer and not a service provider eventhough  whenever, the complainant is called for servicing the A/c, the same was attended to the satisfaction of the customer as per the norms of the warranty under the purview of the manufacturer by the 2^nd opposite party proves that there is no deficiency in service on the part of the 2^nd opposite party.  Considering the facts and circumstances of the case, this Forum is of the considered view that the complaint is dismissed.

In the result, the complaint is dismissed.   No costs.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 20^th day of February 2020. 

 

MEMBER                                                                                                                                                                                                PRESIDENT

COMPLAINANT SIDE DOCUMENTS:-

Ex.A1	20.05.2013	Copy of invoice issued by the 2nd opposite party to the complainant
Ex.A2	21.05.2013	Copy of Service Report from the 2nd opposite party to complainant
Ex.A3	22.05.2013	Copy of Service Report from the Authorised Service Centre of the 2nd opposite party to complainant
Ex.A4	05.09.2013	Copy of Service Report from the Authorised Service Centre of the 2nd opposite party to complainant
Ex.A5	25.11.2013	Copy of Service Report from the Authorised Service Centre of the 2nd opposite party to complainant
Ex.A6	26.11.2013	Copy of Service Report from the Authorised Service Centre of the 2nd opposite party to complainant
Ex.A7	03.01.2014	Copy of Service Report from the Authorised Service Centre of the 2nd opposite party to complainant
Ex.A8	09.01.2014	Copy of Service Report from the Authorised Service Centre of the 2nd opposite party to complainant
Ex.A9	08.02.2014	Copy of notice of the complainant’s Counsel to the opposite parties with postal receipts
Ex.A10	17.02.2014	Copy of notice of the complainant’s Counsel to the opposite parties with postal receipts
Ex.A11	18.02.2014	Copy of acknowledgment cards from the opposite parties
Ex.A12	21.02.2014	Copy of reply notice of the 2nd opposite party to complainant

 

1^ST OPPOSITE PARTY SIDE DOCUMENTS:-  

Ex.B1		Copy of warranty
Ex.B2	17.02.2014	Copy of legal notice issued by the complainant’s Counsel to 1st opposite party

 

2^ND OPPOSITE PARTY SIDE DOCUMENTS:-  

Ex.B3	05.09.2013	Copy of Service Report No.5751
Ex.B4	25.11.2013	Copy of Service Report No.2158
Ex.B5	05.12.2013	Copy of Service Report No.2945
Ex.B6	03.01.2014	Copy of Service Report No.3189
Ex.B7	09.01.2014	Copy of Service Report No.2898
Ex.B8	21.02.2014	Copy of reply notice

 

 

MEMBER                                                                                                                                                                                                   PRESIDENT