Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 256.
Instituted on : 23.07.2014.
Decided on : 21.07.2015.
Krishan Kumar s/o Pariditta Mal, Resident of 1060/27, Ward No.6, Gandhi Nagar, Rohtak.
………..Complainant.
Vs.
- PALL & Co. 51, S.C.F., HUDA Complex, Civil Road, Rohtak.
- PALL & Co. 51 S.C.F., HUDA Complex, Civil Road, Rohtak through its Proprietor.
- Voltas Ltd. 2nd Floor, Voltas House, B Block, Near Jain Hind Cinema, Chinckpokli, T.B.Kadam Marg, Cotton Green, Mumbai through its Managaing Director.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
Present: Sh.Sameer Gambhir, Advocate for the complainant.
Opposite parties exparte.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that complainant had purchased a Voltas Air Conditioner 1.5 ton window vide bill invoice no.12573 dated 22.07.2013 from the opposite party. It is averred that the alleged AC is not working properly as there is not a proper cooling of the AC. Complainant complained the opposite party about the alleged defect and requested to rectify the trouble of AC but to no effect. It is averred that complainant has submitted his complaint to the Voltas complaint center vide complaint no.14070205057 and in response of the same one person had visited and had submitted that there is some manufacturing defect which cannot be resolved. It is averred that complainant served a legal notice upon the opposite parties through his counsel but to no effect. As such it is averred that there is deficiency in service on the part of opposite parties and it is prayed that the opposite parties may kindly be directed to refund the price of A.C. in question alongwith interest, compensation and litigation expenses.
2. On notice opposite parties appeared and filed their written reply submitting therein that the complainant never visited at the showroom of Pall & Co.. It is averred that the allegations alleged by the complainant are vague, false and vexatious and answering opposite parties did not make any false promises and excuses. All the other contents of complaint were stated to be wrong and denied. It is averred that the Pall & Co. is only a dealer not a service provider and thus the present complaint may kindly be dismissed with costs.
3. Complainant led evidence in support of his case.
4. Ld. Counsel for the complainant in his evidence tendered affidavit Ex.CW1/A, document Ex.C1 to Ex.C3 and has closed his evidence. On the other hand, opposite parties did not led any evidence and vide order dated 03.07.2015 were proceeded against exparte.
5. We have heard ld. counsel for the complainant and have gone through material aspects of the case very carefully.
6. In the present case it is not disputed that the complainant had purchased one Air Conditioner from the opposite party no.1 for a sum of Rs.19800/- on dated 22.07.2013 as is proved from the copy of bill Ex.C1. It is also not disputed as per bill there is 1+ 4 years warranty on the alleged A.C. and that the defects in the alleged A.C. appeared during the warranty period and as such the complainant served a legal notice Ex.C2 dated 01.07.2014 upon the opposite parties vide R.C. Ex.C3. The contention of ld. Counsel for the complainant is that the A.C. in question was having manufacturing defects and the same was not repaired/replaced by the opposite parties despite the fact that it was within warranty period.
7. After going through the file and hearing the parties it is observed that from the documents placed on file it is proved that the defects in the alleged Air Conditioner appeared during the warranty period and the same were brought to the notice of opposite parties and the complainant also served a legal notice which was not replied. In this regard we have placed reliance upon the law cited in 2013(3) CLT 541 titled as M/s Poongodhai Textiles(P) Ltd. Vs. UIIC whereby Hon’ble Tamilnadu State Commission, Chennai has held that: “The opposite party though was in possession of all the materials, failed to reply to the claim petition and legal notice of the complainant-only when the complaint was filed before Commission, chosen to reply-This itself will constitute deficiency in service and negligence”. On the other hand opposite parties did not file any evidence and were proceeded against exparte and such conduct of the opposite parties raises a presumption that they have nothing to say in the matter. Therefore all the versions put forth by the complainant regarding manufacturing defect in the alleged A.C. stands proved. In this regard reliance has been placed upon the law cited in 1998(3)CCC 65(P & H) whereby Hon’ble Punjab & Haryana High Court in Sardari Lal Vs. Kartar Singh & Ors. has held that: Non-appearance of a party as a witness in the suit-Gives rise to a strong presumption against him”. Regarding the manufacturing defect, reliance has been placed upon the law cited in 2014(3)CLT178 titled as Krishanpal Singh Vs. Tata Motors & others whereby Hon’ble National Commission, New Delhi has held that: “Vehicle repeatedly taken to service station for repairs-The manufacturing defect, must be assumed-Onus of proof shifts upon OP, and it is further held that: “Whenever there is a complaint of manufacturing defect, it should be the bounden duty of the people, like Ops to appoint their own experts who are always available at their beck and call to prove that the car does not suffer from any manufacturing defect” and as per 2014(1)CLT588 titled Jugnu Dhillon Vs. Reliance Digital Retail Ltd. & Others Hon’ble Delhi State Commission, Mumbai has held that: “Manufacturing defect-Expert evidence-Principal of res ipsa loquitur-Failure of compressor of the AC within 2-3 months of its purchase itself amount to manufacturing defect and principle of res ipsa loquitur should have been applied and it is further held that: “In the event when a product is found to be defective at the very beginning it is always better to order for the refund of the amount because replacement of the product will never satisfied the consumer because the consumer had lost faith in that company’s product-if the repaired product is again returned to the consumer and if develops the defect again then the consumer will be put to much larger harassment because he had to fight another bond of litigation which will be highly torturous”.
8. In view of the aforesaid law, which are fully applicable on the facts & circumstances of the case, it is observed that opposite party no.3 i.e. manufacturer shall refund the price of A.C. in question i.e. Rs.19800/-(Rupees nineteen thousand eight hundred only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 23.07.2014 till its actual realization and shall also pay a sum of Rs.1500/-(Rupees one thousand five hundred only) as litigation expenses to the complainant and in turn the complainant shall hand over the A.C. in question to the opposite parties. Order shall be complied within one month from the date of decision. Complaint is allowed accordingly.
9. Copy of this order be supplied to both the parties free of costs.
10. File be consigned to the record room after due compliance.
Announced in open court:
21.07.2015.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
