Delhi

North East

CC/49/2018

Shri Amit Saxena - Complainant(s)

Versus

MTK Electronic - Opp.Party(s)

11 Oct 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 49/18

In the matter of:

	Shri Amit Saxena S/o Shri Ram Swaroop Saxena 1003, LIG Flats East of Loni Road,Shahdara Delhi-110093	Complainant
	Versus
1         2	MTK Electronics C-495, Main 100 Foot Road Chajjupur Colony Shahadra, Delhi-110032   Carrier Midea India Pvt. Ltd. 1st Floor, Pearl Global Tower Plot no. 51, Institutional area Sector-32 Gurugram-122004	Opposite Parties

 

DATE OF INSTITUTION:     JUDGMENT RESERVED ON:               DATE OF DECISION :

20.03.2018 11.10.2019 11.10.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Brief facts of the present complaint are that the complainant had purchased a window Air Conditioner (AC) of Carrier 18K Estralla 3 Star 7245 manufactured by OP2 from OP1 on 04.06.2017 for a sum of Rs. 24,500/- vide invoice no. RI-698/2017-18. The said AC  carried 1 year manufacturing warranty thereon and 5 years warranty on the compressor for defects in material and workmanship. The said AC was installed in the living room of the house of the complainant for his minor son suffering from Thalassemia but the said AC was defective and never gave proper cooling from day one of its purchase which problem the complainant apprised OP1 of on his visit to its showroom on 10.06.2017 and asked OP1 to replace the same but the request was outrightly declined. The complainant thereafter contacted OP2 which sent its service engineer on 11.06.2017 who did not repair the said AC and rather broke its stick vent which regulates the air outlet. The said AC thereafter started making a lot of noise and water leakage problem from its base and started giving foul smell from the compressor and water sprinkling from its fan. The complainant lodged several complaints with the customer care of OP2 between June to August 2017 but none were attended to and lastly the AC was attended to by a service engineer in February 2018 who told the complainant that the AC is defective and that there is no cooling gas in its compressor and demanded Rs. 2,000/- for its repairing. The complainant objected to such demand since the said AC was still under warranty. Therefore, having no other option and feeling aggrieved at having suffered mental harassment due to the act of the OPs of having sold an AC suffering from manufacturing defect in act of deficiency of service and having failed to provide after sales service to either repair or replace the same, the complainant was constrained to filed the present complaint before this Forum for issuance of directions against the OPs to refund the cost of the AC i.e. Rs. 24,500/- with interest @18% p.a. alongwith compensation of Rs. 50,000/- towards mental harassment and Rs. 21,000/- towards cost the litigation.

Complainant has attached copy of invoice alongwith warranty terms and conditions, copy of photograph of the AC, copy of Field Failure Cum Service Report dated 27.02.2018 issued by Fast Cool Sale and Service with respect to the said AC and copy of CD with respect the condition of the said AC at the time of filing of the complaint alongwith certificate under Section 65B of Indian Evidence Act.

2. Notice was issued to the OPs on 20.04.2018. Both OPs appeared on 22.05.2018 and were handed over copies of the complaint with annexures. However written statement was filed only by OP1 and OP2 did not appear thereafter and therefore its right to file the same was closed and it was proceeded against ex-parte vide orders dared 30.07.2018 and 28.08.2018 respectively. In the written statement filed by OP1, it took the preliminary objection that the complaint was bad for mis-joinder of parties since the OP1 was only retailer of OP2 which had all the responsibilities regarding repair and replacement of the AC in question and the same did not lie with OP1 which has been unnecessary made a party to the present proceedings though it has no concern with rectification of goods since it was the duty of the manufacturer i.e. OP2 and urged that there is no deficiency on its part as the subject AC was working perfectly at the time of its sale to the  complainant and therefore prayed for dismissal of the complaint on grounds of non entitlement of any relief to the complainant qua OP1.
3. Rejoinder to the written statement of OP1 and evidence by way of affidavit was filed by the complainant in reiteration of his grievance against the OPs and exhibited the documents relied upon and submitted that the OP1 had sold defective AC and OP2 failed to  provide after sales service of the AC suffering from manufacturing defect.

OP1 failed to appear after filing written statement in August 2018 and was therefore proceeded against ex-parte vide order dated 26.04.2019.

4. Written arguments were filed by the complainant praying for the relief claimed in light of OPs having sold the defective AC and having failed to provide after sales service with respect thereof.
5. We have heard the arguments advanced by the complainant counsel for the complainant and have carefully perused the documents and CD placed on record.  The subject AC can be seen as suffering from water dripping problem which gradually increases in velocity from its back vent.

In the absence of rebuttal by OPs by way of any cogent / substantial documentary evidence of allegations leveled by the complainant against the OPs of having sold the defective AC, we are inclined to allow the present complaint.

As regards fastening of liability of the seller in such cases, the Hon’ble National Commission in the judgment of Prabhat Kumar Sinha Vs Nitish Kumar III (2016) CPJ 239 (NC) had held that the petitioner being the seller of a defective computer under warranty, in our considered view, was under obligation either to rectify the defects or to replace the computer or refund the consideration amount received. So far as the liability of the manufacturing company is concerned, it is the issue between the manufacturing company and the dealer for which the respondent cannot be made to suffer. The Hon’ble National Commission in Kirloskar Oil Engineers Ltd Vs M. Lokesh 2003 (1) CPR 192 (NC) upheld the concurrent findings of Hon’ble State Commission and District Forum holding manufacturer and dealer jointly and severally liable for deficiency of service in failure to rectify the defects in the generators manufactured by OP. The Hon’ble National Commission in the judgment of JNP Agro Systems Pvt Ltd Vs K.K.Jose 2001 (3) CPR 53 (NC) held that complainant could not be made to suffer for problems between dealer and manufacturer. Therefore in light of the settled proposition of law, this contention/ arguments/ defence of OP1 is unsustainable in law and the liability towards the complainant of dealer and manufacturer is joint and several.

OP1 has nowhere specifically denied the defects alleged by the complainant in the AC in question and the defence was limited to wriggling out of its liability. After due appreciation of the facts of the case we are of the considered view that both the OPs are guilty of deficiency of service in having sold a defective AC and failed to provide after sale service or attended to repair calls of the complainant. The Hon’ble National Commission in the judgment of Rellech Bio Chemical System Vs Amulya Kumar Behara (Dr.) (2007) IV CPJ 388 (NC) had in a similar case upheld the order of the lower Fora holding the OPs guilty of deficiency of service in having failed to render service within warranty period. The Hon’ble National Commission in the judgment of R.Kesava Kumar Vs Sonovision and Ors I (2016) CPJ 675 (NC) had upheld the order passed by the District Forum, not interfered by Hon’ble State Commission Lucknow in case of manufacturing defects in case of fridge in which the District Forum had directed OP to refund the cost of fridge alongwith compensation as reasonable and justified.

6. We therefore allow the present complaint and direct the OP1 and OP2 jointly and severally to refund sum of Rs. 24,500/- to the complainant towards the cost of the AC. We further direct the OPs jointly and severally to pay a sum of Rs. 5,000/- towards compensation for harassment and mental agony inclusive of litigation expenses to the complainant. Let the order be complied by OPs within 30 days from the date of receipt of copy of this order. 
7. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
8.   File be consigned to record room.
9.   Announced on  11.10.2019

(N.K. Sharma)     President

(Sonica Mehrotra)  Member