BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

 Complaint No.291 of 2021

      Date of Instt. 31.08.2021

      Date of Decision: 12.12.2022

Guru Kirpa Trading, Mata Rani Chowk, Jalandhar through its Prop/Owner/Partner-Deepak Kumar S/o Gurcharan Lal, H. No.194, New Suraj Ganj, Jalandhar.

..........Complainant

Versus

Neelkanth Refrigeration & Electrical, Shop No.37, Bedi Complex, Phagwara Gate, Jalandhar City-144001 (Mobile No.76268-80003, 92164-16661), through its Owner/Manager/Partner/Prop.

….….. Opposite Party

          Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)   

Present:       Sh. M. P. Nayyar, Adv. Counsel for Complainant.

Sh. Inderpaul Suri, Auth. Rep. on behalf of OP.

Order

Dr. Harveen Bhardwaj (President)

1.                This complaint has been filed by the complainant, wherein alleged that the complainant is running small trading business to earn livelihood. The complainant has purchased one compressor 1.5 ton vide bill dated 25.01.2021 for Rs.4915/- in cash from OP. It was assured to complainant by the OP that the said compressor belongs to good reputed company and it will work properly and will not create any trouble. In case any trouble be arisen, the OP will remove the defect or otherwise, OP will replace the compressor. The complainant started to use the said compressor with very carefully as per his requirement. From very beginning, the said compressor started to create trouble while working and started to give problem of auto switched off, not cooling etc. It is worthwhile to mention here that after running some times its struck of. In the month of July, 2021 it stopped working, the complainant visited with OP about its problem of compressor and the OP after inspecting and checking the compressor that the aforesaid compressor contains internal manufacture defect. After keeping the compressor with it, the OP has replaced the compressor and illegally charged Rs.500/- as transportation charges. It is pertinent to mention here that the said compressor is having one year warranty/guarantee as given by the OP. After lapse of sometime, the said compressor started to create problems and in the month of August, 2021 the complainant, immediately visited with the respondent and narrated its entire problem, who after keeping the said compressor and again illegally demanded Rs.500/- as transportation charges which is unfair trade practice and deficiency in service as the said compressor is in under warranty/guarantee period. Few days ago in the second week of month of August 2021, the complainant approached to OP and requested to solve his problem and requested to OP that if OP is unable to solve the problem of complainant, then, OP shall replace the compressor free of costs as the aforesaid compressor is still under warranty. But with malafide intention to harass the complainant, the OP refused to admit the claim of complainant and started to postpone the matter under one excuse of other. Even though, the compressor contains manufacturing defect, the OP has handed over it to the complainant unlawfully & committed deficiency in service. The complainant purchased and thereafter replaced the compressor, but the said compressor never worked properly from very beginning to till the date & it has not been repaired/replaced by the OP, and it never worked properly and the OP has also miserably failed to remove the internal/manufacturing defect of the said compressor. It is very much cleared that the said compressor is having manufacturing defect. The aforesaid compressor is in warranty period and the defective piece consisting of manufacturing defect, has been delivered to complainant by the OP unlawfully. The aforesaid fact is well within knowledge of the OP. The OP is duty bound to replace the aforesaid defect of the said compressor and to keep it in working position and remove its manufacturing defect or to replace the same. The complainant has made many requests to the OP to keep the aforesaid compressor in the working position or to replace the same, but all in vain. The OP is very negligent in the providing their services to the complainant. Due to aforesaid reason, the compressor of complainant remained un-functional. So the complainant has never enjoyed his compressor. Due to this reason, the complainant has suffered from great mental agony & tension and feeling be cheated by the OP. That the complainant contacted and requested verbally many times to the OP to remove/repair the defect of the aforesaid compressor and to keep it in proper working position or to replace it. Two days ago again, the complainant approached the OP and requested to admit his legal and genuine claim, but the OPs intentionally ignored the requests of the complainant and flatly refused to admit the legal and genuine claim of the complainant & further, refused to resolve the matter unlawfully and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OP be directed to refund his price money of compressor alongwith interest. Further, OP be directed to pay a compensation of Rs.50,000/- for causing mental tension and harassment to the complainant and also be directed to pay Rs.15,000/- as litigation expenses.

2.                Notice of the complaint was given to the OP, who filed reply and contested the complaint by taking preliminary objections that the present complaint against OP is absolutely false, frivolous and vexatious even to the knowledge of the complainant himself, is an abuse of the process of law. Therefore, the present complaint is not at all maintainable against the OP and is liable to be dismissed with special, heavy and exemplary costs. It is further averred that the complainant does not fall within the definition and parameter of a ‘consumer’ as defined and envisaged under the provision of Section 2 (5) and Section 2 (7) of the Act ibid. Therefore, the present complaint is liable to be dismissed with special, heavy and exemplary costs. The transaction which took place, vide Invoice 92 dated 25.10.2021 is clearly a commercial transaction, wherein the complainant had purchased the product/compressor for commercial purpose that is for resale and not for his personal use. Therefore, the complainant is forbidden to seek relief under the provisions of Consumer Protection Act. Therefore, the present complaint is liable to be dismissed with special, heavy and exemplary costs. The complaint is bad for non-joinder of necessary parties and the complainant has not impleaded the manufacturer and stockists of the product who manufactured and supplied the product to the OP. Therefore, the present complaint is liable to be dismissed with costs. As per the terms conspicuously mentioned on the Invoice there is absolutely no mention of any guarantee and or warranty as alleged in the body of the present complaint. As the guarantee or warranty is not applicable on the product being purchased by the complainant. Therefore, the present complaint is liable to be dismissed against the OP. It is amply clear from the facts and circumstances that the Opposite Party/Neelkanth Refrigeration & Electricals has excellently extended its services only as a goodwill gesture and only for satisfaction of the Complainant. The Opposite Party/Neelkanth Refrigeration & Electricals entertained the Complaints raised by the Complainant, only as a matter of goodwill gesture. The product in question, in fact was manufactured by the Company at Mumbai and was supplied by the stockists situated at Ambala. The Opposite Party/Neelkanth Refrigeration & Electricals had no option, but to send the product to the stockist for replacement for putting it in order by transport and the naturally the Complainant either had to take the product to Ambala himself or the same was to be sent through Transport and the expenses for the same were to be borne by the Complainant. Thus, there is absolutely no question to illegal charge as alleged. The Opposite Party in no way is responsible for any deficiency in service. Therefore, the present Consumer Complaint is liable to be dismissed against the Opposite Party/Neelkanth Refrigeration & Electricals. On merits, it is admitted that the complainant has purchased a compressor from the OP, but the other allegations as made in the complaint by the complainant are categorically denied and lastly submitted that the complaint of the complainant is without merits and the same may be dismissed.

3.                Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement. 

4.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.   

5.                We bestowed our thoughtful consideration to the submissions made by learned counsel for the complainant as well as Auth. Rep. of OP and have also gone through the case file as well as written arguments submitted by counsel for both the parties very minutely.

6.                It is admitted that the complainant has purchased a compressor, vide Invoice dated 25.01.2021 Ex.C-1. The complainant has alleged that the OP assured the complainant that the compressor of good reputed company and it will work properly and will not create any trouble, but it started giving problem in the very beginning and it started to give problem of auto switched off, not cooling etc. It is admitted fact that the complainant visited the OP regarding the problem of compressor and the OP found that there was internal manufacturing defect and the compressor was replaced. The grudge of the complainant is that the OP charged illegally the transportation charges of Rs.500/- for the replacement. The receipt has been proved by the complainant as Ex.C-2. It has further been alleged by the complainant that even the other compressor started giving problem in the month of August, 2021 and he again went to the OP who kept the said compressor and illegally demanded Rs.500/- as transportation charges illegally. The OP is bound to replace the new compressor free of cost as the compressor was under warranty.

7.                The OP has denied all the allegations and alleged that there was no warranty/guarantee for the compressor. Earlier the compressor was replaced by the OP. The complainant himself opted for the compressor in question, which was available for Rs.4915/- and was without warranty/guarantee. Therefore, the OP is not liable for the refund nor he is liable to replace the second compressor. The OP has further alleged that the compressor was replaced from Ambala, therefore, the transportation charges of Rs.500/- were charged rightly.

8.                The complainant has alleged that the product was within warranty/guarantee and the complainant has produced on record the copy of warranty card. Perusal of this warranty card, nowhere shows about the specifications of the compressor purchased by him, even the entire warranty card nowhere shows that it relates to any compressor nor the name of the complainant nor the date of the purchase of compressor has been mentioned on this warranty card. Perusal of Ex.C1 shows that it bears the serial number originally purchased by the complainant and the serial number of the compressor which was later on replaced on 01.02.2021 by the OP, but the warranty card nowhere shows any particulars or any fact to tally that the compressor purchased by the complainant was under warranty. Perusal of Ex.C-1 further shows that there is no reference of any warranty period in this invoice also. So therefore it cannot be said that the product was under warranty. Earlier the compressor was replaced by the OP despite there is a condition on Ex.C-1 that goods once sold cannot be taken back. No name of the company or manufacturer of the compressor has been mentioned. It has been alleged by the OP that stockiest was at Ambala, therefore the same was to be replaced from Ambala and he asked the complainant to go to Ambala and get it replaced, but the complainant did not agree. Since, the warranty/guarantee card has not been proved, therefore, the OP cannot be directed to replace or refund the money without any warranty or guarantee. It is proved that the complainant has charged Rs.500/- as transport charges for replacement of the compressor, but he has alleged that the compressor was to be replaced from Ambala. No document has been filed on record by the OP to prove that the compressor was got changed from Ambala nor there is any document to show from which shop/factory or company, the same was got changed. So, the complainant is entitled for the transport charges i.e. Rs.500/- alongwith interest.

9.                In view of the above detailed discussion, the complaint of the complainant is disposed off with the direction to the OP to pay Rs.500/- as transportation charges to the complainant alongwith interest @ 6% per annum from the date of transport till its realization within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

10.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated         Jaswant Singh Dhillon      Jyotsna      Dr. Harveen Bhardwaj     

12.12.2022         Member                           Member             President