Punjab

Faridkot

CC/14/93

Amar Nath - Complainant(s)

Versus

National sales Corp. - Opp.Party(s)

Neeraj Maheshwari

13 Feb 2015

ORDER

      DISTRICT  CONSUMER  DISPUTES  REDRESSAL  FORUM,  FARIDKOT

 

Complaint No. :        93

Date of Institution :  14.07.2014

Date of Decision :    13.02.2015

Amar Nath age about 68 years s/o Sh Budh Ram, Prop Amar Karyana Store, Kotkapura, Tehsil Kotkapura, District Faridkot.                                                                                                              

  .....Complainant

Versus

1           National Sales Corp. Rama Bazar, Kotkapura-151204, Tehsil Kotkapura Distt Faridkot through proprietor/Partner/Authorised person.

2            Samsung India Electronic Pvt Ltd 2^nd, 3^rd, 4^th Floor, C-Tower, Vipul Tech Square, Golf Course Road, Sec 43, Gurgaon (Haryana) through MD, Director, Manager, Authorised person.

3      Samsung Service Centre, Adev Electronics, Krishana Market, Near Krishana Continental Hotel, Barnala Road, Bathinda through its Manager/Incharge/Authorised person.

....Opposite Parties(Ops)

 

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum:          Sh. Ashwani Kumar Mehta, President,

Smt Parampal Kaur, Member,

Sh P Singla, Member.

Present:       Sh Neeraj Maheshwary, Ld Counsel for complainant,

 Sh Jatinder Bansal, Ld Counsel for OP-1 & 2,

 OP-3 Exparte.

(A K Mehta, President)

                                                 Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against National Sales Corp etc/ Ops for not replacing the Split Air Conditioner make Samsung 1.5 Ton as per guarantee and warrantee and has prayed for directing Ops to pay Rs 20,000/- as compensation on account of mental agony and harassment and Rs 10,000/- as cost of litigation besides replacing the Split Air Conditioner in question.

2                                          Briefly stated, the case of the complainant is that complainant visited the shop of OP-1 and purchased Split AC 1.5 Ton of Samsung for Rs 29,500/- vide bill no. 1218 dt 17.07.2013 and it was used about one and half months in the year 2013 as there was no need of AC in the month of September and thereafter, complainant closed the AC; that in April 2014, complainant restarted the AC, but he was surprised and shocked at the working of AC as it was not giving the cooling as assured by Ops at the time of sale; that complainant alongwith his son approached OP-1 and complained about problem of AC and also made complaint bearing no. 8445973753 in April-May, 2014 through his son Vinod Kumar, but Ops ignored the complainant; that complainant also approached through mobile to Mr Rajan, Mr Raja and Mr Tejinder on their mobile numbers 98881-14177, 97803-97376 and 96460-76080 respectively, but all in vain; that after these complaints, officials of Ops visited the shop of complainant and tried to mend the AC for three four times and also detached the AC unit and took some parts of AC to their workshop and said that it is not possible to find fault at the spot as they have other modern equipments in the workshop to find the fault and after checking AC properly, they again visited the shop and fixed the AC Unit and restarted the AC for checking, but all efforts failed and then they admitted that there is a major defect in the AC unit, which is not repairable and also said that there is manufacturing defect in the AC and thereafter, they assured the complainant that they would replace the unit as it is under the guarantee period and thereafter complainant kept waiting, but Ops totally ignored the genuine claim of complainant; that complainant visited the shop of OP-1 many times and made several requests to replace the said AC, but OP-1 refused to replace the AC and told him to do whatever he like; that  company officials told and assured the complainant about the reputation of company and represented before complainant that their company is very fast, honest and genuine in giving the claim and also assured about the quality and chilling effect of AC and also assured about the transparency in the working of company through wide network of service centres, but they did not replace the AC of complainant and this act and conduct of complainant has caused humiliation and harassment to complainant without any fault on the part of complainant, which amounts to deficiency in service on the part of OPs; that complainant is entitled to compensation of Rs.20,000/- for mental tension and harassment besides Rs10,000/- as costs of the complaint along with main relief. Hence,  the complaint.

3                                             Ld Counsel for complainant was heard with regard to admission of the complaint and vide order dated16.07.2014, complaint was admitted and notice was ordered to be issued to the opposite party.

4                                                  On receipt of the notice, the opposite party no. 2 filed reply taking preliminary objections that complaint is bad for mis-joinder of parties and no cause of action arises against OP-2 and 3 and complaint filed by complainant is liable to be dismissed; that complainant has not taken permission for institution of complaint within territorial jurisdiction of this Forum and hence, further proceeding in the instant case is bad in the eyes of law and complaint is filed on false, frivolous and baseless allegations; that as per facts in complaint, the Split AC allegedly suffered problem in May 2014, when he lodged complaint with service centre on 6.05.2014 i.e after 9 months of purchase of said AC, which was purchased on 17.07.2013 and there is no inherent defect in the AC; that when the Service Engineer visited the site of complainant in May 2014, he found that Unit cover of indoor unit was open as complainant tried to get it repaired from some other mechanic and Service Engineer took photograph of the indoor unit and on inspection of outer unit, Service Engineer found that rats have damaged the wiring and fan motor and as the damage was due to external facts and same is not covered under warranty; that Service Engineer told complainant that repair would be on chargeable basis and gave estimate of repairs, but complainant refused to get the AC repaired from the Service Centre of answering OP; that complainant has concealed the necessary information that the obligation of answering OP under warranty is to set right the AC by repairing or replacing the defective part within one year of its purchase as per terms of warranty and warranty is only for one year from the date of purchase subject to terms and conditions mentioned in warranty card and as per warranty condition no. 7 “ In case of any damage to the product/misuse detected by the authorized Service Centre personnel, the warranty conditions are not applicable and repair will be done subject to availability of parts and on chargeable basis only”; that estimate for repair was given by Service Engineer, but complainant refused to get the AC repaired from the answering OP, thus, there is no deficiency in service on the part of answering OP; that complainant has not set out any legitimate ground for replacement or refund of price of AC as there is no expert evidence given by complainants and complaint filed by complainant is a gross misuse of process of law as no cause of action has arisen in favour of complainant and there is no deficiency in service on the part of Ops. However, on merits, OP-2 has denied all the allegations levelled by complainant being false, frivolous and wrong and asserted that defect caused by household pets, rats, cockroaches or any other animal or insects are not covered under warranty as per condition no. 11 mentioned in warranty card and fault in AC is due to negligence of complainant by not protecting the unit from rats and thus, there is no deficiency in service on the part of  OP-2 and said AC is not liable to be changed as there is no fault in the AC unit because the damage has been done by rats and complainant himself has been negligent in taking care of AC unit; that this Forum has no jurisdiction to entertain and try the present complaint against answering OP as answering OP has no branch or office within the jurisdiction of this Forum and present complaint is liable to be dismissed; that there is no deficiency in service on the part of answering opposite party; that all other allegations and allegation with regard to relief sought too were refuted with a prayer that complaint may be dismissed with costs against the answering opposite party and prayer for dismissal of complaint alongwith cost against OP-2  is made.

5                                           OP-3 also filed reply and took preliminary objections that complainant has no locus standi to file the present complaint and has not disclosed any cause of action against the answering OP and complainant is using the said AC for commercial purpose, therefore, complaint filed by complainant is not maintainable and is liable to be dismissed; that answering OP is authorised Service Centre for Bathinda District only and the complainant never visited or contacted the answering OP regarding alleged complaint in question and OP-3 has been wrongly impleaded as party and necessary party in this complaint is Samsung Authorized Service Centre at Faridkot, but complainant has not impleaded the said Service Centre as party to the present complaint, therefore, complaint filed by complainant is liable to be dismissed against answering OP-3. However, on merits, ld counsel for OP-3 has denied all the allegations levelled by complainant being incorrect and wrong and asserted that there is no deficiency in service on the part of OP-3 and all the other allegations are refuted and prayed for dismissal of complaint with costs against OP-3. During pendency of complaint, none appeared on behalf of OP-3 and consequently, OP-3 was proceeded against exparte vide detailed order dated 19.01.2015. Sh Vijay Kumar/Proprietor National Sales Corporation/OP-1appeared in the complaint but did not file reply to the complaint.

6                                            Parties wanted to lead evidence to prove their respective pleadings and proper opportunity was given to them.  The complainant tendered in evidence his affidavit Ex.C-1 and documents Ex C-2 to C-6 and then, closed the evidence.

7                                               In order to rebut the evidence of the complainant, Counsel for OP-2 tendered in evidence affidavit of Shriniwas Joshi Ex OP-2/1 and documents Ex OP-2/2 to OP-2/5 and closed the evidence on behalf of OP- 2.

8                                                             We have heard learned counsel for parties and have very carefully perused the affidavits & documents placed on the file by complainant as well as opposite party.

9                                                     Ld Counsel for complainant contended that complainant purchased Split Air Conditioner make Samsung of 1.5 ton for Rs 29,500/- from OP-1 on 17.07.2013, which was manufactured by OP-3/Company vide bill dt 17.07.2013 Ex C-2. He contended that there was over all warranty of one year on the split air conditioner purchased by the complainant and it was also so mentioned on the bill Ex C-2. He contended that after the purchase of the split air conditioner, complainant used the same only for 1 ½ months and thereafter, stopped the AC as it was not required in the month of September and then started the AC in the next season in April 2014, but it was not giving proper cooling as was assured by the OP-1 at the time of its sale. He contended that a complaint was filed to OP-2, who is the Service Provider of the Company and also requested the OP-1 many times, but with no result. He contended that later on, mechanic of the OP came to the shop of the complainant and tried to mend the AC, but with no result as the said mechanic could not find the fault in the AC and fault in the AC continued. He contended that even some parts of the AC were taken to the workshop of OP, but even after repair of some parts of the AC, working of the AC was not proper and as such, the AC was having manufacturing defect and is required to be replaced, but inspite of many requests, the OP did not replace the AC which amounts to deficiency in service on the part of the AC and conduct of Ops also caused harassment and mental agony to the complainant for which he is also entitled to compensation and as such, complaint is required to be allowed and complainant is entitled to replacement of AC alongwith compensation and litigation expenses as mentioned in the complaint.

   10                                       Ld Counsel for Ops admitted that complainant purchased Split AC of 1.5 ton from OP-1 on 17.07.2013 for Rs 29,500/-. He also admitted that the warranty of the AC was for one year. He contended that there is no force in the contentions of the complainant that the air conditioner has a manufacturing defect because even as per complainant, the AC worked properly for 1 ½ months after the purchase of AC and even as per allegation of the complainant, the AC did not work properly when it was restarted in the next season in April 2014 and it clearly shows that the AC in question have no manufacturing defect. He contended that the complainant reported the fault first time to the Ops on 6.05.2014. He contended that it is mentioned in the terms and conditions of the warranty card of the AC Ex OP-2/2 that if defect is caused by cockroaches, house hold pets, rats within warranty period, then warranty condition is not applicable. He contended that service order prepared by OP-2 clearly shows that there was no power in the air conditioner as the wires were damaged by the rats and in this eventuality, the warranty condition is not applicable. He contended that if the damage is caused due to misuse of the product within warranty, then warranty condition is not applicable and Ops are not liable for the defect and as such, complaint is without merits and is liable to be dismissed. He contended that even the warranty condition shown in Ex OP-2/2 states that if the damage is caused due to misuse of the product then, warranty is not applicable and as the damage in this case is caused by rats, therefore, warranty condition is not applicable and Ops are not liable for the defect and as such, complaint is without merits and is liable to be dismissed.

  11                                            After going through the record of the case, evidence and documents produced on file, this Forum finds force in the contentions of the complainant. It is admitted fact in this case that complainant purchased air conditioner in question from OP-1/dealer and it is manufactured by OP-3/Samsung Company and OP-2 is the Service Provider of the Samsung Company. It is also admitted fact in this case that air conditioner in question was having one year over all warranty. Complainant alleged that air conditioner worked properly only for 1 ½ month after its purchase on 17.07.2013 and thereafter, it was closed due to change of season and when it was restarted in April 2014, it did not work properly as the cooling was less. Even the Ops admitted that first report was given to the Ops regarding defect in the air conditioner on 6.05.2014 i.e within one year from the date of purchase of the air conditioner i.e within warranty period and as such, Ops are duty bound to repair and set the AC in question right during the warranty period. There is only lame assertion from the Ops that the defect has been caused by the rats and photographs Ex OP-1,2/5 proved on the file in this regard but this evidence is of no help to the OP as the OP admitted that Engineer of the Company visited the shop of the complainant for repairing the air conditioner and it is the case of the Ops that some parts of the air conditioner were taken out and were taken to the workshop of Ops for repair and in this eventuality, the Ops must have opened the air conditioner and photographs Ex Op-1,2/5 could be the result of the repair of the AC by the Engineer. Otherwise also, the first report about defect was made within warranty period by the complainant and in this eventuality, Ops are duty bound to repair the air conditioner. The Ops even refused to repair the air conditioner even on the repeated requests of the complainant and this conduct of the Ops must have caused harassment and mental agony to the complainant and as such, complainant is also entitled to compensation on this account.

12                                                          In the light of above discussion, the complainant succeeds in proving his case on the file. Therefore, complaint is allowed against Ops with costs and Ops are directed to repair the air conditioner in question and set it right within one month from the date of receipt of the copy of the order. Complainant is also entitled to Rs 3000/- as compensation on account of harassment and mental agony and Rs 2000/-as litigation expenses and Ops are directed to comply with the order within one month from the date of receipt of the copy of the order or notice to this effect if given by the complainant. Copy of the order be supplied to parties free of cost as per law. File be consigned to the record room.

Announced in open Forum:

Dated: 13.02.2015

Member                Member             President         (Parampal Kaur)           (P Singla)         (A K Mehta)