Delhi

North East

CC/182/2014

Sh. Hari Shankar Shukla - Complainant(s)

Versus

O. General A.C. - Opp.Party(s)

05 Oct 2018

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. 182/14

 

In the matter of:

 

	Hari Shankar Shukla S/o Shri Ram Lagan Shukla R/o House No. K-301, Street No.1 Near Pandit Medical Store, west Ghonda, Shahdara, North East, Delhi-110053.	Complainant
	Versus
1.           2.       3.	O. General A.C. Through its Manager Office: 221, first floor Okhla Industrial Area, Phase-3 Okhla, New Delhi-110020.   Sterling Aircon 156, Complex Cycle Market Jhandewalan Extn. New Delhi-110055.   Cool Weather India J-13, Gurudwara Road, Laxmi Nagar, New Delhi-110092.	Opposite Parties

 

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

17.05.2014 04.10.2018 05.10.2018

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Succinctly put, the case of the complainant is that on 06.09.2010 he had purchased General 2.0 ton split Air Conditioner from OP2 manufactured by OP1 for a sum of Rs. 48,000/- inclusive of cartage and Vat charges vide invoice no. 1558. The said AC carried a warranty of five years. However, the subject AC started given cooling problem soon after purchase due to defective compressor about which the complainant had made oral complaints to OPs on 17.03.2011 and OP2 assured the complainant that they will send the mechanic for repairs but did not sent any till July 2011 when a mechanic sent by OP2 inspected the subject AC and informed the complainant that the compressor of the AC needed to be changed. Thereafter, the complainant continuously followed up OP1 and OP2 with repeated request to replace the compressor but no action was taken by the OPs and the complainant was forced to use the defective AC without proper cooling. After six months, a mechanic from OP3 (service centre of OP1) visited the premises on 06.02.2013 and did wet service and charged Rs. 350/- from the complainant vide invoice no. 557. Thereafter again the OP3 mechanic visited the complainant’s premises on 19.03.2013 and 27.02.2014 for PCB repairing and gas filling for which the complainant was charged Rs. 2,000/- and Rs. 2,650/- respectively vide invoice numbers 204 and 983. However despite repeated repairs the subject AC could not repaired and did not give proper cooling to the complainant even though the said AC was covered under warranty but is still lying in defective state. Therefore, being aggrieved by the actions of OP1 and OP2 of having manufactured and sold (respectively) inherently defective AC to the complainant and OP3 having provided defective services to the complainant, the complainant was constrained to file the present complaint before this Forum alleging deficiency of service and unfair trade practice against the OPs causing him mental, economic and physical harassment and prayed for issuance of directions to the OPs to replace the defective AC with a brand new one or in the alternate refund the cost of the subject AC i.e. Rs. 48,000/- with interest alongwith Rs. 70,000/- as compensation towards mental harassment and Rs. 15,000/-  towards cost of litigation in favour of the complainant.

         Complainant has attached copy of retail invoice no. 1558 dated 06.09.2010 for purchase of the AC in question and repair                           invoices/cash memo dated 06.02.2013, 19.03.2013 and 27.02.2014 issued by OP3 alongwith the complaint.

The complainant was directed to place on record original warranty card however he was not in the possession of the same and instead filed an affidavit on 28.05.2014 on directions of this Forum to the effect that he was given warranty of five years on the subject AC by OP2 at the time of purchase and was confirmed by OP1 i.e. its manufacturer from the bill date but was not given any warranty card with respect thereto.

2. Notices were issued to the OPs. OP1 entered appearance on 13.06.2014. Notice to OP2 was received back with postal remark ‘refused’  which was deemed service and was therefore proceeded against ex-parte on the said date i.e. 13.06.2014. OP3 was served on 02.06.2014 however failed to appear and was therefore proceeded against ex-parte vide order dated 30.06.2014.
3. Written statement was filed by OP1 on 30.06.2014 in which it took the preliminary defence that the present complaint was not maintainable against OP1 in terms of replacement of the subject AC or refund of its cost since the complainant had neither purchased the AC from the authorized dealer of the OP1 nor the said AC purchased by the complainant was manufactured or marketed by OP1 and therefore the same was not under any warranty or guarantee and also there was no privity of contract between the complainant and OP1. OP1 further took the objection that the complainant was admittedly using the subject AC for commercial purpose since he had installed the same in the godown for bananas for cooling them which can be corroborated by the service report form dated 21.04.2014 of the technician of OP3 which clearly mentions the address of the AC installed. The OP1 denied the complainant having ever visited its office at any point to lodge a complaint about his allegedly defective AC and stated that he had availed services of the OP3 i.e. franchisee of OP1 for the first time on 06.02.2013 for wet service of the AC against payment of Rs. 350/- and thereafter on 19.03.2013 for repairing of PCB and 27.02.2014 for gas charging against payment of Rs. 2000/- and Rs. 2,650/- paid by complainant to OP3 after which the AC was working OK to the utmost satisfaction of the complainant. Lastly OP1 urged that the complainant is not entitled for any replacement of AC or refund of its cost or compensation for mental harassment or litigation charges since there was no deficiency of service on its part. OP1 has attached copy of report of the technician of authorized service franchisee dated 21.04.2014.

         On direction by this Forum issued vide order dated 04.09.2014 to OP1 to file the list of its authorized dealers, OP1 filed the list of             its authorized dealers on 25.09.2014 in which OP2 does not feature.

4. Evidence by way of affidavit was filed by the complainant in reiteration of his grievance alongwith the operating manual booklet of O General AC.

          Evidence by way of affidavit was filed by OP1 in reinforcement of its defence with willingness to rectify the defects or replace the            compressor of the AC against payment by the complainant.

5. Written arguments were filed by both the parties to buttress their respective grievance / defence. The complainant argued that if the subject AC was not purchased from the authorized dealer of OP1, the same would not have been repaired repeatedly by either the franchisee or service centre of OP1 i.e. OP3. The complainant denied having purchased the subject AC of commercial purpose and urged that it was suffering from inherent manufacturing defect and OP1 is liable to replace the same. Per contra OP1 argued that the complaint was time barred under Section 24A of CPA since the cause of action, if any arose in 2010 whereas the complaint was filed in 2014. Further OP1 argued that it provided one year guarantee on the AC as against five years claimed by the complainant and OP1 never gave assurance to the complainant to replace the same since it was neither manufactured nor marketed by it and was therefore not covered any guarantee or warranty for which reason all three services / repairs undertaken by OP3 at the behest of OP1 were of chargeable nature and the charges for the same were paid by the complainant without any protest. OP1 further argued that the subject AC was purchased by the complainant from Grey market. Lastly, OP1 argued that the complainant had been admittedly using the subject AC for commercial purpose since it had been installed in his godown of bananas for cooling them which can be establish from report of technician of OP3 dated 21.04.2014.
6. We have heard the rival contentions of both the parties and have carefully perused the documentary evidence placed on record by both the sides.

The complainant has not filed the warranty card with respect the subject AC nor does his complaint have any iota of whisper of protest against payments made by him thrice between February 2013 to February 2014 towards AC repairs made to OP3 despite averring on one hand that the subject AC was covered under warranty. On the other hand the list of dealers filed by OP1 does not contain the name of OP2 as its authorized dealer/ seller which corroborates and proves its averment that the subject AC was not purchased by the complainant from its authorized dealer. Secondly, as per the OP3’s technician report dated 21.04.2014, the subject AC was installed at the godown of the complainant for cooling bananas which the complainant admitted before this Forum on specific question put to him in this regard which establishes another defence of OP1 that the subject AC was being used for commercial purpose.

The Hon’ble National Commission in the judgment of Ajitha Chit Funds (P) Ltd Vs. Tata Engineering & Locomotive Co. Ltd, (2007) I CPJ 204 (NC) found that there was absence of evidence of expert to state that car was having manufacturing defects as alleged by the complainant and further the same was purchase for commercial purpose and held that the complainant was not a consumer.

In light of the settle proposition of law we find force in the arguments forwarded by OP1 in view of conclusive and fool proof documentary evidence placed on record and by complainant’s own admission that the subject AC was been used for commercial purpose, we find no merits in the present complaint since as per the amendments brought about in CPA in 2002 vide explanation dated 15.03.2003, all transactions coming within the ambit of commercial category are ousted from the purview of consumer complaint as per Section 2 (1) (d) (ii) of the Act and therefore the complainant is not a consumer within the meaning of section 2 (1) (d) (ii) of the Act. Hence the complainant is dismissed with no order as to costs.

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  05.10.2018

 

(N.K. Sharma)     President

(Sonica Mehrotra) Member