IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated, the 25^th day of September, 2024

Present: Sri. Manulal V.S. President

  Smt. Bindhu R.  Member

 Sri. K.M. Anto, Member

C C No. 193/2023 (Filed on 21.06.2023)

O R D E R

Sri. Manulal V.S. (President)

This is a complaint filed under section 35 of Consumer Protection Act 2019.

The case of the complaint is as follows:-

On 08.04.2021 the complainant purchased an air conditioner which is manufactured by the 3^rd opposite party for an amount of ₹ 34,990/- (Rupees thirty four thousand nine hundred and ninety only) from the first opposite party. The first opposite party has installed the air conditioner on the same day of the purchase. From the very first month of installation the air conditioner started showing some complaints. The complainant has always operated the air conditioner as per the instruction given in the user manual and has also carried out the periodic services of the air conditioner through the opposite parties. In the month of May, 2023 the air conditioner started showing error in the digital board and now it has no cooling effect. When the complainant complained with the first opposite party they made the complainant believe that they shall intimate the matter to the customer care of the 3^rd opposite party and would do the needful so that the air conditioner is repaired in warranty. The first opposite party made the complainant believe that the product is having 4 years warranty for the equipment and 9 years warranty for the compressor.

Though it was agreed that the first opposite party would do the needful to get the air conditioner warranty, they did nothing. It was after repeated calls made to the first opposite party an executive of the first opposite party came to the premises of the complainant and informed that they have raised the grievances of the complainant before the 3^rd opposite party and they would repair the air conditioner within 1 week. But no one turned up to repair the air conditioner. The act of the opposite parties in not considering the complaints of the complainant and not handing over a defect free air conditioner to the  complainant even after such a long period amounts to deficiency in service and unfair trade practise on the part of the opposite parties. Hence, this complainant is filed by the complainant praying for an order to direct the opposite parties to repair the air conditioner at free of cost or in the alternative, replace the air conditioner with a new one having the same price or in the alternative to refund ₹ 34,990/- (Rupees thirty four thousand nine hundred and ninety only) along with ₹ 20,000/- (Rupees twenty thousand only) and ₹ 5,000/- (Rupees five thousand only) as cost of this litigation.

After the admission of the complaint, the notice was duly sent to the opposite parties. Notice to the first opposite party, seen served on 08.08.2024. Notice to the second opposite party returned with an endorsement that intimated on 09.05.2024. Hence, it is considered as deemed service of notice. Despite the receipt of the notice from this commission, the first and second opposite parties did not care to appear before this commission or to file version within the statutory period. The third opposite party appeared before this commission and file version contenting as follows:

On 30.05.2023 a call bearing number 30052321961472 was logged by the complainant with the third opposite party. Upon inspection it was found that the PCB of the air conditioner needed to be replaced. The technician of the third opposite party replaced the PCB in few days and the product was working fine since then and no service request has been reported after that. The third opposite party duly provided the service and air condition has been repaired by replacing the part free of cost in component warranty. In case there is still any issue in the air conditioner 3^rd opposite party can check the air conditioner and repair it to replace its parts as per warranty terms. As on the date the standard one year warranty has expired but as per  warranty scheme applicable on this date of purchase air conditioner is covered in component warranty and compressor warranty. The call logged by the complainant was duly addressed and resolved and thereafter, the product was working fine, as per standards and no further service request has been logged with the 3^rd opposite party. In such a scenario, the third opposite party cannot hold liable for deficiency in service and unfair trade practices.

Complainant filed proof affidavit in lieu of chief examination and marked Exhibits A1 to A4 from his side. Harsh Agarwal who is the senior General Manager, legal of the  3^rd opposite party filed the proof affidavit for and on behalf of the 3^rd opposite party. There is no documentary evidence from the side of the 3^rd opposite party.

We would like to consider the following points on the evaluation of the complaint, version and evidence on record.

1. Is there any deficiency in service or unfair trade practice on the part of the opposite parties?
2. If so, what are the relief and costs?

Points number 1&2

There is no dispute on the fact that the on 08.04.2021 complainant had purchased GLSI2I56WBELSAC 1 ton 5 star Lloyd air conditioner which is manufactured by the 3^rd opposite party from the first opposite party for an amount of ₹ 34,990/- (Rupees thirty four thousand nine hundred and ninety only). It is proved by Exhibit A1, tax invoice issued by the first opposite party that the complainant had paid, ₹ 34,990/- (Rupees thirty four thousand nine hundred and ninety only) to the first opposite party being the price of the air conditioner. According to the complainant he used the air conditioner in accordance with the instruction given in the owner’s manual and had also carried out the periodic service of the air conditioner through the opposite parties.

The specific case of the complainant is that in the month of May 2023 the air conditioner started showing error in the digital mode and has no cooling effect then he complained the same with the first opposite party over phone. Although the first opposite party assured him that they would inform the third opposite party's customer care and arrange for the air conditioner to be repaired under warranty, it was only after repeated calls from the complainant that a technician from the first opposite party inspected the unit. The technician informed the complainant that a complaint had been raised with the third opposite party and the air conditioner would be repaired within a week. However, no technician arrived to carry out the repair.

The complaint was resisted by the third opposite party stating that on 30.05.2023, the complainant registered a service request with the third opposite party under the reference number 30052321961472. Upon inspection, it was found that the air conditioner's PCB needed to be replaced. A technician from the third opposite party replaced the PCB within a few days and the unit has been functioning properly since then with no further service requests reported. The third opposite party provided the service promptly, repairing the air conditioner by replacing the part under the component warranty, free of charge.

It is pertinent to note that the complainant did not adduce any evidence to substantiate his case that the defect of the air conditioner is persisting. He did not take any steps to get the air conditioner inspected with by an expert to prove that the air conditioner in dispute is now having defect. The onus to prove the defect is on the complainant and the same should be proved by expert evidence. In the absence of this we cannot conclude that the defect of the air conditioner is persisting after the replacement of the PCB by the 3^rd opposite party. In the absence of evidence regarding the defect, no liability can be attributed to the manufacturer or the dealer of the product to compensate the complainant. Since no expert evidence or report was produced by the complainant regarding the defect in air conditioner, the question of deficiency in rendering service or unfair trade practice on the part of the opposite parties did not arise at all.

Another contention of the complainant is that there is a delay in rectifying the defect of the air conditioner by the opposite parties. Though the complainant in complaint as well as in proof affidavit alleges that in the month of May, 2023 the air conditioner showed error in the digital board and no cooling effect, in exhibit A2 lawyers notice which was issued to the first opposite party it is stated that from 28.05.2023 the air conditioner showed error in the digital board and has no cooling effect. It is admitted by the third opposite party that on 30.05.2023 that is two days after the date on which the defect occurred they received a complaint from the complainant. Therefore we are of the opinion that the contention of the complainant that there is a delay and rectifying the defect of the refrigerator, is not sustainable.

In SGS India Ltd v. Dolphin International Ltd., has held that "The onus of proof that there was deficiency in service is on the complainant. If the complainant is able to discharge its initial onus, the burden would then shift to the respondent in the complaint. The rule of evidence before the civil proceedings is that the onus would lie on the person who would fail if no evidence is led by the other side. Therefore, the initial burden of proof of deficiency in service was on the complainant. "  

Based on the above discussions, we are of the opinion that the complainant has failed to prove any unfair trade practice or deficiency on the part of the  opposite parties. In the result the complaint is dismissed.

Pronounced in the Open Commission on this the 25^th day of September, 2024

 Sri. Manulal V.S, President   Sd/-

    Smt. Bindhu R.  Member      Sd/-   

   Sri.K.M.Anto, Member          Sd/-   

APPENDIX :

Exhibits from the side of the Complainant :

A1     -         Copy of purchase invoice dated 08.04.2021 issued by the 1st

opposite party.

A2     -        Copy of lawyers notice dated 02.06.2023.

A3     -        Postal receipt dated 02.06.2023.

A4     -        Postal acknowledgement card dated 03.06.2023

Exhibits from the side of the Opposite Parties :

NIL

      By Order,

   Sd/-

 Assistant Registrar