KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION VAZHUTHACAUD, THIRUVANANTHAPURAM.
APPEAL No.570/2004
ORDER DATED: 28-02-2011
PRESENT:
SHRI. M.V. VISWANATHAN : JUDICIAL MEMBER
SHRI. M.K. ABDULLA SONA : MEMBER
1. M/s Cool Tech,
39/3854, S A Road,
Near Medical Trust Hospital,
Kochi.
: APPELLANTS
2. ETA General Pvt. Ltd.,
Seethakathi Chambers,
688, Anna Salai,
Chennai.
(By Adv.M/s Menon & Pai)
Vs.
P.J.Thomas,
Managing Partner,
Mahila Jewellers, : RESPONDENT
Broadway, Ernakulam.
(By Adv.Sri.P.U.Ziyad)
JUDGMENT
SHRI.M.V. VISWANATHAN:JUDICIAL MEMBER
Appellants were the opposite parties and respondent was the complainant in OP.798/02 on the file of CDRF, Ernakulam. The complaint therein was filed alleging deficiency of service on the part of the opposite parties in effecting sale of a defective Air Conditioner to the complainant/consumer. Thus, the complainant prayed for refund of Rs.85,368.49 which the complainant had incurred for getting the Air Conditioner installed at his premises. He also claimed compensation and cost for the deficiency of service on the part of the opposite parties.
2. The opposite parties entered appearance and filed joint written version denying the alleged deficiency of service. They contended that the Air Conditioner sold to the complainant and installed at his premises was a defect free Air Conditioner and it has been functioning effectively. They also denied the alleged manufacturing defect in the said Air Conditioner. Thus, the opposite parties prayed for dismissal of the complaint.
3. The complainant had also filed rejoinder refuting the contentions adopted by the opposite parties in their written version.
4. Before the Forum below, the complainant was examined as PW1. The Manager of the 1st opposite party was examined as DW1 and a witness was examined as DW2. Both the complainant and the 1st opposite party had also filed proof affidavits in support of their pleadings. From the side of the complainant 6 documents were produced. The Forum below failed to mark those documents. But the Forum below has referred to those documents in the impugned order passed in OP.798/02.
5. The complainant filed a commission application as i.A.192/03. The 1st opposite party filed objection to the said I.A. After hearing both sides, the Forum below allowed the said application for appointment of an expert commissioner. Both the complainant and opposite parties filed panel of experts and that the Forum below appointed Mr.M.Delep Mohammed, I.T.I, Cool Aid, Ernakulam as the expert commissioner. It is to be noted that the Forum below appointed expert commissioner from the panel of experts submitted by the complainant. The aforesaid expert commissioner submitted his report dated:9/12/2003. Both the complainant and the opposite parties filed objection to the said commission report stating that the expert commissioner omitted to note certain facts in his commission report. The Forum below has also referred to the commission report filed by the expert commissioner.
6. On an appreciation of the evidence on record, the Forum below passed the impugned order dated:10th June 2004 allowing the complaint and thereby the opposite parties are directed to take back the Air Conditioner from the complainant and pay Rs.68,405/- towards the price of the Air Conditioner and Rs.1000/- towards cost of the proceedings. It is against the said order, the present appeal is filed by the opposite parties therein.
7. We heard both sides. Learned counsel for the appellants/opposite parties submitted his arguments based on the grounds urged in the memorandum of the present appeal. He argued for the position that the Forum below failed to consider the fact that the expert commissioner has not reported any manufacturing defect in the Air Conditioner; but the only problem was due to the failure on the part of the complainant in providing proper door to his jewellery shop and also due to the defect in the piping given for connecting the out-door unit of the Air Conditioner. It was also pointed out that the 2 ton Air Conditioner provided for the jewellery shop was not adequate and an additional Air Conditioner is to be provided to get effective cooling. Thus, the appellants/opposite parties denied the alleged deficiency of service on their part. On the other hand, the learned counsel for the respondent/complainant supported the impugned order passed by the Forum below. He also relied on the report of the expert commissioner and argued for the position that the Air Conditioner installed by the appellants/opposite parties was not functioning effectively and that there was no cooling effect. Thus, the respondent prayed for dismissal of the present appeal.
8. There is no dispute that the respondent/complainant purchased 2 ton split Air Conditioner which was manufactured by the 2nd opposite party. The bills produced from the side of the complainant would also show that he had also purchased stabilizer, air curtain etc at a cost of Rs.16,963.49. The case of the complainant in the complaint in OP.798/02 was that the opposite parties effected sale of the Air Conditioner having serious manufacturing defect. It is also alleged in the complaint that the said Air Conditioner was having serious manufacturing defect and those defects could not be rectified. Thus, the complainant prayed for replacing the defective Air Conditioner with a defect free Air Conditioner or to refund the total price of the Air Conditioner and its accessories amounting to Rs.85,368.49 with 18% interest from the date of purchase till the date of payment. The complainant has also claimed refund of the excess electricity bill charges paid by the complainant on account of the installation of a defective Air Conditioner.
9. The opposite party in their written version totally denied the alleged manufacturing defect in the Air Conditioner. They also contended that the air curtain was purchased by the complainant at his own choice and that the said air curtain was not supplied by the opposite parties. The definite case of the opposite parties was that the Air Conditioner supplied to the complainant is an excellent one free of any defects. It was further contended that the opposite party has also attended to the complaint made by the complainant and had given necessary suggestions and carry out certain modifications in the placement of the outside unit of the Air Conditioner.
10. The complainant filed a rejoinder to the written version filed by the opposite parties. In the aforesaid rejoinder also the complainant reiterated his case regarding deficiency of service on the part of the opposite parties in effecting sale of a defective Air Conditioner and the inefficient functioning of the Air Conditioner and also defective piping and installation etc.
11. The expert commissioner filed the commission report dated:9/12/2003. It is reported by the expert commissioner that the Air Conditioner unit installed at the premises of the complainant/consumer is not adequate for the jewellery shop of the complainant. The expert commissioner suggested installation of an additional Air Conditioner unit and also for providing proper door at the entrance of the shop. It is categorically reported that the 2 ton Air Conditioner unit is not enough for the jewellery shop having 200 Sq.Ft. area. It is also reported that the standard efficiency rating of a normal 2 ton Air Conditioner is 24,000 BTU/hr. But the rating in the jewellery is 18,048 BTU/hr approximately. The commissioner has also reported about the electrical fittings in the jewellery shop and also the presence of 88 employees and an average of 8 customers in the shop room at a time. It is categorically reported that the heat load of the jewellery shop is 24,847 BTU/hr. It is pertinent to note at this juncture that the expert commissioner could not point out any manufacturing defect in the 2 ton Air Conditioner unit which was purchased by the complainant from the opposite parties. Thus, it can very safely be concluded that there was no manufacturing defect in the Air Conditioner unit supplied by the opposite parties to the complainant. So, the case of the complainant that the opposite parties effected sale of an Air Conditioner having manufacturing defect cannot be believed or accepted. On the other hand, the expert commission report would make it clear that there is no manufacturing defect for the split Air Conditioner supplied by the opposite parties and installed at the premises of the complainant/consumer. So, the complaint preferred by the complainant alleging deficiency of service is liable to be dismissed.
12. Appellants/opposite parties have got a case that the respondent/complainant is not a consumer as he purchased the Air Conditioner for commercial purpose. Admittedly the Air Conditioner was purchased for installing the same at the commercial shop of the complainant/consumer. It is to be noted that the complainant purchased the Air Conditioner on 31/5/2001. The aforesaid Air Conditioner was having 5 year warranty. The Air Conditioner was not giving sufficient cooling and the same was not working properly during the warranty period itself. The complaint in OP.798/02 was filed on 19/9/2002. So, the dispute regarding the deficiency of service with respect to the supply of the Air Conditioner had arisen within the warranty period itself. If that be so, the aforesaid dispute regarding the working of the Air Conditioner is to be treated as a dispute which had arisen within the warranty period itself. It is a settled position that warranty service is also service coming within the ambit of the Consumer Protection Act, 1986. It is also to be noted that service availed for commercial purpose was also considered as a consumer dispute and that a person who avails such service for commercial purpose was considered as a consumer as defined under Sec.2(1)d(ii) of the Consumer Protection Act, 1986. The aforesaid position continued till the amendment of Section 2(1)d(ii) of the Consumer Protection Act. The aforesaid amendment came into force on 15/3/2003. Thus, it can be concluded that the complainant in OP.798/02 was a consumer as defined under Sec.2(1)(ii) of the Consumer Protection Act, 1986. If that be so, the complaint in OP.798/02 is to be treated as a consumer dispute coming within the purview of the Consumer Protection Act, 1986. The Forum belo had the jurisdiction to entertain the complaint in OP.798/02.
13. The expert commissioner has also reported about the inefficiency of the Air Conditioner due to defective installation of the out door unit of the split Air Conditioner. It is come out in evidence that the piping of the Air Conditioner is 46 ft. in length with 8 bends. It is deposed by DWs1 and 2 that the length of the pipe and the bends will adversely affect the efficiency of the Air Conditioner. The expert commissioner has categorically reported that the length of the pipe will reduce the efficiency rating by 96 BTU for every one ft. length of the pipe and one bend of the pipe will reduce the efficiency by 192 BTU and the aforesaid length and bends ultimately reduced the cooling effect of the Air Conditioner. There is nothing on record to show that the out door unit of the split A/c was placed or installed at such a length because of the defective installation. It is the case of the opposite parties that no other space was available for installation of the out door unit and that is why the out door unit was installed with the piping of 46 ft. and also with 8 bends. So, the appellants/opposite parties who installed the Air Conditioner unit cannot be found fault with for the installation of the out door unit with such piping and bends.
14. The expert commissioner has also reported that the Air curtain provided for the jewellery shop has also reduced the effective functioning of the Air Conditioner. It is further reported that the Air curtain is causing hindrance in the working of the Air Conditioner. It is further suggested for fixing a proper glass door for the said jewellery shop. So, the respondent/complainant is to be found fault with for not providing proper glass door for his shop room. The commissioner has also reported about the lighting provided for the jewellery shop and due to such a lighting the heat bearing capacity of the Air Conditioner has been adversely affected.
15. The expert commissioner has also reported for providing an additional Air Conditioner unit as 2 ton Air Conditioner is not adequate for the jewellery shop having 200 sq.ft. area. Thus, it can be seen that the proper cooling will be getting to the jewellery shop by making necessary arrangements as suggested by the expert commissioner. The aforesaid defects can be rectified by doing the necessary alterations and additions as suggested by the expert commissioner. So, the Forum below cannot be justified in making the appellants/opposite parties guilty of deficiency of service.
16. The case of the respondent/complainant that he had to incur additional expenses for payment of electricity charges cannot be accepted as such. The Forum below rightly held that by using Air Conditioner there will be excess consumption of electrical energy. The complainant who enjoys the benefit of the Air Conditioner is bound to pay additional energy charges for the electricity consumed for running the Air Conditioner. The further case of the complainant that the air curtain was supplied by the opposite parties cannot be believed or accepted. The invoice produced by the complainant would show that the air curtain worth Rs.13,238/- was purchased from Almonard Limited. The said invoice dated:1/6/2001 would show that the said air curtain was purchased by the complainant. It is further to be noted that the disputed Air Conditioner was purchased in May 2001. The report of the expert commissioner would suggest that the respondent/complainant is using the aforesaid Air Conditioner at the time of his inspection in December 2003. It is also to be noted that 10 years have elapsed from the date of purchase of the said Air Conditioner unit. So, it is not just or fair on the part of Forum below in directing the opposite parties to refund the price of the Air Conditioner unit. The impugned order itself was passed on 10/6/2004. Moreover there is no justification in directing the opposite parties to refund the price of the Air Conditioner with cost of Rs.1000/-. So, the impugned order passed by the Forum below is liable to be quashed. Hence we do so.
17. The warranty and the service record provided for the Air Conditioner unit would show that the opposite parties are liable to provide free services to the Air Conditioner unit. Admittedly, the opposite parties had effected only one free service. It is the definite case of the opposite parties that the complainant did not permit them to carry out free service to the Air Conditioner unit and that the complainant was insisting for refund of the price of the Air Conditioner. So, the appellants/opposite parties are directed to render 3 free services to the Air Conditioner installed at the premises of the respondent/complainant. The appellants/opposite parties are also directed to cure the defect in the installation of the out door unit of the split Air Conditioner by reducing the length of the piping and the bends. The appellants/opposite parties are also directed to render necessary assistance in installing an additional Air Conditioner unit at the premises of the complainant provided the respondent/complainant bears the price of the additional Air Conditioner unit. Thus, the impugned order passed by the Forum below is modified to that extent.
In the result, the appeal is allowed. The impugned order dated:10/6/2004 passed by the CDRF Ernakulam in OP.798/02 is set aside. The appellants/opposite parties are directed to render 3 free services to the Air Conditioner installed at the premises of the respondent/complainant. The appellants/opposite parties are also directed to cure the defect in the installation of the out door unit of the split Air Conditioner by reducing the length of the piping and the bends. The appellants/opposite parties are also directed to render necessary assistance in installing an additional Air Conditioner unit at the premises of the complainant provided the respondent/ complainant bears the price of the additional Air Conditioner unit. Thus, the impugned order passed by the Forum below is modified to that extent. Considering the facts and circumstances of the case, the parties are directed to suffer their respective costs throughout.
M.V. VISWANATHAN: JUDICIAL MEMBER
M.K. ABDULLA SONA : MEMBER
VL.
