BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

                                           C.C.No.5/2012

Dated this the 8^th day of July 2016

(Date of Institution: 31.01.2012)

R. Murali Mohan, son of V. Rajasekaran            

No.39, 2^nd Cross Street, Rainbow Nagar

Puducherry – 605 011.

….     Complainant

vs

1. Priya Electronics rep. by its Proprietor /  

    Manager, No.33, St. Theresa Street,

    Pondicherry – 605 001.                

2. Videocon Industries Limited rep. by its      

    Managing Director, 3-6-430, 2^nd Floor

    Maithai Mansion, 4^th Street, Himayat Nagar

    Hydrabad – 29.               

                                                          ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Tmt. PVR. DHANALAKSHMI, B.A.,B.L.,

           MEMBER

Thiru V.V. STEEPHEN, B.A., LL.B., 

MEMBER

FOR THE COMPLAINANT:  Thiru S. Vimal, Advocate         

FOR THE OPPOSITE PARTIES: OP1 – M.V. Ramachandra Murthy, Advocate

                                                         OP2 – K. Ravikumar, Advocate.

O R  D  E  R

(by Thiru A. Asokan, President)

              This is a complaint filed by the complainant u/s 12 and 13 of Consumer Protection Act for ;

1. Directing the Opposite Parties to refund a sum of Rs.19,516/- towards the cost of the product or replace the same with another machine free from any defects or short coming in its performance.
2. Directing the Opposite Parties to pay a sum of Rs.50,000/- for the physical hardship and suffering, mental agony and monetary loss caused to the complainant due to supply of a defective product and deficiency in service.
3. to pay the cost Rs.5,000/- towards this complaint.

2.  The case of the complainant is as follows:

          The complainant purchased two Videocon Brand, 1.5 and 1 ton split Air Conditioners from first opposite party marketed by the second opposite party bearing Model No.VPS 53 CDUI Sl. No. Indoor: 03792, Outdoor: 01099 and V4S 33 CVEI, Sl. No. Indoor 02791 and Outdoor 01088 on payment of a sum of Rs.19,516/- and Rs. 18,500/- respectively vide Invoice / Cash Bill No. 437.   Immediately upon installation, the 1.5 ton Air Conditioner developed several problems including dropping of water from the machine, display was not functioning.   Apart from this, the complainant was not provided with the Company's warranty card and kit along with the machine.  The said fact was complained to the opposite parties on 22.04.2011 through their  authorised service centre at Puducherry.   On receipt of complaint, one Rajendiran, an Engineer of the Opposite Party's company inspected the machine and informed that the installation is not done by them and therefore requested to approach Priyanka Electronics, the first opposite party.  The complaint informed the same to the first Opposite party but of no avail.  Despite complainant's waiting for several days since complaint, none of the opposite parties have cared to either repair the defects in the machine or replace the product, such attitude reveals opposite parties intention of Unfair Trade Practice and establishes deficiency in service and it caused monetary loss, physical hardship and mental agony.  The complainant issued a legal notice on 2.7.2011 and rejoinder notice on 06.07.2011 to the opposite parties.  The opposite parties received and acknowledged its receipt of said notice and rejoinder on 04.07.2011 & 07.07.2011 and 09.07.2011 and 12.07.2011 respectively, but they have not cared to reply for the same.  Hence, this complaint.

3. The reply version filed by the first opposite party briefly discloses the following:

          The complaint is not maintainable either in law or on facts. Apart from denying the averments made in the complaint, this opposite party stated that the complainant filed this complaint with full of suppressions and misrepresentation with sole intention to criticize the first opposite party reputation in the electronic industry and also stated that the complainant has not permitted the authorized persons from the service center to attend the complaint but on the contrary without even showing the air conditioner commanded the opposite party to replace the air conditioner.  The complainant has also hidden the material fact that he has purchased the above air conditioner machine on finance with Sri Ram Finance Ltd., and has miserably failed to pay the instalments as agreed, but on the contrary approached this Forum with cock and bull stories to escape from the seizure of air conditioner by Sri Ram Finance.  This opposite party further stated that the complainant has failed to produce the air conditioner before this Hon'ble Forum or any expert evidence on the alleged defect in the air conditioner.  The complainant has also not even permitted the authorized Service Engineer to attend the complaint made by the complainant and hence, except the alleged averments made by the complainant, there is no other proof to substantiate the fact that the alleged air conditioner is defective.  It is also stated that the complainant on his own installed the machine and has violated the warranty conditions that the installation has to be done by the authorised Service Engineers of the company.  Hence, the complainant has not produced the warranty.  Further, the complaints mentioned by the complainant arise only due to faulty installation and not due to manufacturing defects.  The machine supplied to the complainant does not suffer any manufacturing defect and there is no deficiency in service on the part of this opposite party.  Hence, prayed for dismissal of the complaint with exemplary costs.

          4. The reply version filed by the second opposite party briefly discloses the following:

          This opposite party does not have knowledge about any of the transactions or allegations made by the complainant against the first opposite party and hence confines its defence only with regard to its transactions with the complainant.  This opposite party denied all the allegations and averments made by the complainant in the complaint.  The Air Conditioners were not installed by either the first opposite party or the Authorised Service Engineers, but were installed by the complainant on his own.  Any of the complications that may have arisen would have been due to the installation of the machines by persons other than the Service Engineers and by persons of the Complainant who had no knowledge of installation.  The main condition of warranty is that the installation is done by the company authorised Service Engineers.  Hence, the complainant had committed a violation of service and warranty conditions and hence, this opposite party is not liable for any loss arising out of such acts.  Further, the complainant failed to prove that there is any deficiency in service on the part of the second opposite party since the machines were not installed by them.  The complaint arises only due to faulty installation and not due to manufacturing defects.  The complainant also not established that there is any manufacturing defect.  The non reply of legal notice will not amount of acceptance.  Hence, prayed for dismissal of the complaint with exemplary costs.

 5.      On the side of the complainant, the complainant himself was examined as CW1 and Exs.C1 to C3 were marked.  On the side of first opposite parties, one Jeya Priya was examined as RW1 and on the side of second opposite party, one Joseph, Service Manager was examined as RW2 and marked Exs.R1 and R2 series. 

6.       Points for determination are :

1. Whether the Complainant is the Consumer?
2. Whether the opposite parties attributed any unfair trade practice and deficiency in service?
3. To what relief the complainant is entitled for?

7. Point No.1:

          The complainant has purchased two Videocon Split Air Conditioners from the first opposite party on 18.04.2011 for a total sum of Rs.38,016/- vide Ex.C1 photocopy of Invoice / Cash Bill.    Hence the Complainant is the Consumer for the opposite parties as per the Consumer Protection Act.

          8.  Point No.2:

We have perused the complaint, evidence of CW1 and Exs.C1 to C3.  We have also perused the reply version of opposite parties and their evidences  RW1 and RW2 and Exs.R1 and R2.  The opposite parties did not appear before this Forum, and were set ex parte and the complaint was allowed in favour of the complainant by the predecessor of this Forum.  Thereafter, the opposite parties preferred separate appeal vide F.A. Nos. 38 and 39 of 2012  which were allowed and remitted back to this Forum for fresh disposal  according to law by giving opportunity to the opposite parties. 

          9. The complainant alleged that he purchased two Split Air Conditioners of 1.5 tone and 1.0 ton capacity from the first opposite party vide Ex.C1 on 18.04.2011.  On installation, the 1.5 ton capacity split Air Conditioner developed several problems like dropping of water from the machine, non-functioning of display etc.  It is also alleged by the complainant that he was not given with warranty card along with the Air Conditioner.  The same was informed to the opposite parties on 22.04.2011 through their authorised service centre at Pondicherry.   On receipt of complaint, a person from the second opposite party visited the house of complainant, inspected the machine and informed that the installation is not done by them and informed to approach the first Opposite Party. The complainant  informed the said facts, but they have not cared to attend the defects.  Hence, the complainant issued a legal notice to the opposite parties vide Ex.C2 on 02.07.2011 and a rejoinder on 06.07.2011 vide Ex.C3.  Though the opposite parties received the same, did not care to repair the said defects or replace with a new one.  Therefore, the complainant preferred this complaint.

          10. On the other hand, the opposite parties categorically alleged that the complainant has not permitted the authorised persons from their  service centre to attend the complaint and the installation was done by the complainant himself and thereby violated the warranty conditions (Ex.R2)(1) (2)  that the installation has to be done by the authorised service engineers of the company.   Further alleged that the complaint arose only due to the improper installation of the Air Conditioner and there is no any manufacturing defect.  Further, the first opposite party has stated that the complainant availed loan from Shriram Finance and failed to pay the instalments and to avoid seizure of the Air Conditioner, has filed this complaint. 

11.     This forum has carefully perused the materials available on record.  The complainant stated that immediately after purchase, he installed the Air Conditioner of 1.5 ton.  Whereas, the first opposite party stated that the Air Conditioner was not installed by them.  The first opposite party has relied the Ex.R1 (1) (2) that the warranty is covered only if the installation made by them alone and the installation should be done only by the manufacturer through their authorised service personnel, the second opposite party herein.  The evidence of the first opposite party stats that they reported the sale and delivery to the complainant of the said disputed A/C machine to the second opposite party only on the next day.  Therefore, the machine ought to have installed only after two days by second opposite party's service personnel.  But, as per the pleadings of the complainant, it is evident that the installation was done on the day of purchase itself i.e. on 18.04.2011 and developed so many problems on that day itself.  The first opposite party has stated that the Service Centre Personnel went to the  complainant's place on request made by the complainant to attend the problem if any in the said A/C machine, but the complainant did not permit them to attend the service.  The first opposite party has stated that as per the warranty clause, they were ready to attend the problem on cost as the A/C machine was installed by third party.

          12. From the above facts and circumstances of the case, both the parties did not file any documentary proof for their allegations.  The bounden duty of the complainant to establish his case through substantial evidence.  The complainant did not file any piece of evidence to show that the Air Conditioner machine is having manufacturing defect.  There is no evidence that the A/C machine was installed by the opposite parties.  The provisions of the Consumer Protection Act enable a consumer to claim compensation for injustice caused to him.  But, it has to be established through documentary and oral evidence.  The defects of Air Conditioner mentioned by the complainant is (1) dropping water from the A/C machine and (2) display not functioning.   Manufacturing defect should be established by the complainant either by getting expert opinion by him or he has to produce the machine before this Forum for sending it for Expert opinion.  In the present case, either the Expert opinion was sought or the Air Conditioner was produced before this Forum.   The complainant also admitted in this cross-examination that "I do not have any proof to show that the A/C machine was installed by the first opposite party…."  "I cannot produce any proof to show that who installed the A/C machine".   Thus, the complainant did not prove his allegation that the opposite parties are indulged in deficiency in service when, the opposite parties were ready to attend the problem on cost as per the warranty condition after the permission accorded by the complainant.  Hence, this Forum held that this complaint lacks of evidence and merits and therefore the complaint is liable to be dismissed. 

13. In the result, this complaint is dismissed. No costs.

Dated this the 8^th  day of July 2016.

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

(V.V. STEEPHEN)

   MEMBER

COMPLAINANTS' WITNESS:

CW1           20.05.2014           R. Murali Mohan

OPPOSITE PARTY'S WITNESS:

RW1           27.04.2015           Jeya Priya

RW2           20.07.2015           Joseph Maria Rex, Service Manager

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS:

Ex.R1                   04.02.2015           Authorisation letter from Videocon Company

Power of Attorney to and in favour of RW2 Joseph

Maria Rex.

Ex.R2         (series)                          Owner's manual and Warranty         clause

LIST OF MATERIAL OBJECTS:  NIL

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

(V.V. STEEPHEN)

   MEMBER