DATE OF FILING: 23.3.2012.
DATE OF DISPOSAL: 16.11.2016.
Dr. Alaka Mishra, Member (W)
The complainant has filed this consumer complaint U/S 12 of Consumer Protection Act, 1986 alleging defective in goods and deficiency service against the Opposite Parties (for short, the O.Ps) and for redressal of his grievance before this Forum.
2. Briefly stated the case of the complainant is that the complainant purchased an ONIDA Air Conditioner Model No. SZ 18FLT vide invoice No. 4800 of Rs.21,000/- dated 18.4.2009 from O.P.No.1. The said Air Conditioner is manufactured and marketed by O.P.No.2. The complainant used the A.C. for some days but there after the system showed many problems including failure of its cooling system for which the complainant lodged complaint in the local service centre of O.P.No.1. The service centre deputed a technician to repair the A.C. but the same problem continued till date. On the request of the service centre technician the complainant paid for extension of warranty period and annual maintenance, renewed warranty period on payment of Rs.2800/- on 18.5.2010. The company has issued EWCC No. 2009146282. The complainant thereafter lodged online complaint to the O.P.No.2 which was registered vide complaint No. 11092246380120 and requested to the O.P.No.1 and the local service centre to replace the Air conditioner but there has been no response from either O.P.No.1 or O.P.No.2. The A.C. which was purchased on payment of Rs.21,000/- with assurance of after sale service by the service provider i.e. O.P.No.1 and 2 became defective from the initial days of purchase and the complaint was deprive of using the same. The local service center technician assured the complainant to submit detailed report regarding patient and latent defects in the A.C. to the company and further assured to depute service engineer to rectify the defects or replace the system but unfortunately in spite of receipt of legal notice and number of complaints the O.Ps never felt it their courtesy to carry out the service after sale. The complainant and his family members were subjected to harassment by the O.Ps and deprived of using the A.C. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to replace the defective AC and pay a sum of Rs.25,000/- towards compensation for mental suffering and pecuniary loss suffered by the complainant in the interest of justice.
3. Upon notice the O.P.No.1 filed version through his Advocate. It is stated the allegations made in the complaint petition are all not true which are not specifically denied are deemed to be denied the complainant is put to strict proof of the same. The complaint petition is not maintainable for non-joinder of necessary party and mis-joinder of unnecessary party. The complaint petition is not maintainable under the law. The complainant is not a consumer to the said allegation made in the complaint petition. It is evident from the Annexure 1 i.e. the invoice, clearly shows that the alleged AC was purchased in the name of M/S Sanjeev Enterprises, but the complaint petition filed by one K. Naveen Chakravarthy, who is not a party to the said Annexure-1. Hence the complaint petition is liable to dismiss without any merit. The allegations made in para 2 of the complaint petition are all true and correct. The complaint does not clearly speak about the problem and it is also not ascertain whether such problems are coming under the warranty period. The allegations made in Para 3 of the complaint petition are all not true and correct. It is not within the knowledge of the O.P.No.1 that any complaint was lodged against the AC and the problem which was occurs in the AC, the same was still continuing till today. It is also not within the knowledge of this O.P.No.1 that the extension of warranty period was issued by the company to which this O.P. No.1 was least concern. The allegation made in Para 4 of the complaint petition are all not true and correct. It is not true to say that after online complaint lodged by the complainant which was registered vide complaint No. 11092246380120, the O.P.No.2 has made no response. The condition about the AC should be reactive by the service centre. But the further allegation about the replacement of the AC might have not comes under the warranty period. The allegations made in Para 5 of the complaint petition are all not true and correct. It is true to say that the AC was purchased on payment of Rs.21,000/- with the warranty period. It is also true to say that on a specific complaint about the defects the same can be rectified by its service engineers. But in the complaint petition it was not specifically mentioned in which date the AC was became defective and the particular defects which caused problem in running the AC. So the O.P.No.1 is not liable for any deficiency in service. The dealer of the ONIDA AC, on the demand of the customers, this O.P. No.1 deliver the articles on their choice, and the facilities are to be provided by the company which are codified in the warranty manual with its limit and stipulated therein, and is also warned to the customer for its use and handle with the user’s manual. In the warranty book, there is no such provision laid therein that the dealer is to responsible for any defect happens to be in the product, so if any defect causes it is the duty of the customer to lodge the complaint before the authorized service centre or through online. The complaint petition does not disclose any such particular date of cause of action, and that ever subsequent cause of action arose to file the complaint petition. So this complaint petition is not maintainable as there is no such cause of action arose for filing the complaint petition. It is submitted in Para 14 of the warranty card, it is specifically quoted that “this warranty shall be deemed to have been issued at Mumbai, State of Maharashtra and Courts at Mumbai shall have exclusive jurisdiction on matters covered by or followings terms of the warranty and the original purchaser along shall have cause of action arising out of the transaction”. Hence this Forum has got no jurisdiction to entertain and hear the complaint petition. This complaint petition is barred by limitation. Hence the O.P.No.1 prayed to dismiss the complaint in the interest of justice.
4. Upon notice the O.P.No.2 filed version through his Advocate. It is stated the allegations made in the complaint petition are not at all correct and true. The complainant is put to strict proof of the same. The date of purchase of the product pleaded by the complainant is 18.4.2009 and the complaint is filed on 23.3.2012 which date is beyond the limitation period of two year as prescribed by the Act. The O.P.No.2 prays that on this ground alone the matter may be dismissed in limine. The complainant has not sought the permission of this Forum for impleading O.P.No.2 which are carrying on business outside the jurisdiction of this Forum nor are the O.P.No.2 acquiesce for filing the complaint in this Forum and hence the complaint needs to be dismissed in limine. The complaint requires to be dismissed for non-joinder of the party. The complainant has failed to array after sales service provider as a O.P., hence the complaint requires to be dismissed in limine. The complainant is suppressed the material facts for that this petition is liable to be dismissed. Hence this O.P.No.2 prayed to dismiss the complaint petition with heavy cost.
5. On the date of hearing of the consumer dispute, both the learned counsel for the complainant as well as O.Ps was present. We heard the argument from both sides and perused the complaint, written arguments and documents placed on the case record. The learned counsel for the complainant in his argument contended that he purchased an ONIDA Air Conditioner (AC) on 18.4.2009. The said A.C. is manufactured and marketed by O.P.No.2. The O.P.No.1 issued invoice in favour of M/s Sanjeev Enterprises, Powel Street, Berhampur. The complainant is the proprietor of the said firm. The complainant used the A.C. for some days but after few days the AC showed many problems and the complainant reported the problem to the service centre and the service center deputed a technician to repair the AC but even after repairing the same problem persisted. It is also contended that on request of the service center technician the complainant paid a sum of Rs.2,800/- on 18.5.2010 towards extended warranty of the A.C. to O.P.No.2 who has also issued a receipt vide No.EWCC 2009/46282. It is further contended that when the defect was not rectified, the complainant lodged online complaint to O.P.No.2 which was registered bearing complaint No.1109224638012 and requested the O.P.No.1 and 2 to replace the AC. The local service center assured the complainant to replace the defective AC by informing the matter to the Company since he was informed to the complainant that he has reported the matter to the Company regarding latent defects in the AC to the Company but unfortunately in spite of receipt of legal notice and number of complains, the O.Ps never felt to replace the same. Therefore, the O.Ps are jointly and severally liable for the loss to the consumer since the complainant and his family members harassed and deprived of using the AC hence prayed before this Forum to replace the AC or to pay Rs.25,000/- towards mental suffering and financial loss. The learned counsel for the complainant also cited three decisions in support of his argument reported in National Consumer Disputes Redressal Commission, New Delhi in CADILA HEALTH CARE LTD. Versus ANURADHA ENTERPRISES 2010 CJ 457 (NC), Andhrapradesh State Commission, Visakhapatnam, in B.SHYAM versus SRINIDHI ENTERPRISES AND OTHERS (2010) CJ 467 (A.P.), and Union Territory Consumer Disputes Redressal Commission, Chandigarh in Voltas Limited versus Amritpal Kaur and another (2010) CJ 633.
Per contra, the learned counsel for the O.Ps contended that the complainant is not a consumer of the O.Ps as per Annexure-1 “That the alleged goods purchased under the name of M/S Sanjeev Enterprises and not in the name of complainant and the complainant have not filed any documents to show regarding ownership of M/s Sanjeev Enterprises”. It is admitted by the complainant that the O.Ps have rectified the defects of the AC in several times as per complaint petition, there is no such date mentioned regarding lodging of complaint. It is also contended that the complainant’s complaint has been rectified which is duly acknowledged by him. He further contended that there are two types of service available for all durable goods one is guarantee and second is warranty. The warranty card holders only get free service from the company during the warranty period. In the warranty book there is no such provision laid down that the company is responsible for any defect happens to the product and if any defect arises, it is the duty of the customer to lodge the complaint before the authorized service centre or through online. In this case there is no cause of action, so the complaint petition is not maintainable. Further it is argued that in the warranty card it is specifically mentioned that “this warranty shall be deemed to have been issued at Mumbai, State of Maharashtra and Courts at Mumbai shall have exclusive jurisdiction on matters covered by or following term of warranty and the original purchaser shall have cause of action arising out of the transaction”. Hence this Forum has got no jurisdiction to entertain and adjudicate the complaint. The complaint petition is barred by limitation. Therefore, O.Ps prayed before this Forum to dismiss the complaint in the interests of justice.
6. We perused the pleadings of both parties and verified the documents placed on case record. It is not dispute that the present complainant K.Naveen Chakravarty son of K.Sanjeeb Rao Subudhi who is also the proprietor of Sanjeev Enterprisers. It has been solemnly declared through an affidavit filed before this Forum on 11.8.2016. It is also not in dispute that the disputed AC was purchased by the aforesaid person vide Invoice No. 4800 dated 18.4.2009 on payment of Rs.21,000/-. It is also a fact that the complainant has got the extended warranty of the said AC on payment of Rs.2,800/- vide cash memo No. 725605 dated 24.5.2010. According to the warranty condition the AC, its warranty period is for two years from the date of purchase and the consumer has obtained the extended warranty on 24.5.2010 i.e. before expiry of original warranty period. Therefore, it is clear that the AC found defective during the warranty period. When AC or any consumer durable goods found defective during warranty period it is the duty of manufacturer as well as dealer or service centre to make it correct up to the satisfaction of the complainant but in this case the complainant is not satisfied with the service of the service centre and it is also admitted by the memo of points filed by the O.Ps that the said AC was rectified/repaired due to defect for several times. From the aforesaid discussion, it is clear that the AC in dispute was found defective during the warranty period and even after several rectification/repairing works carried out by the service centre of O.P. it was not correct. Therefore, in our considered view, we hold that the alleged AC was defective and even after complaint it was not rectified which is deficiency in service and amounts to unfair trade practice. In view of the above discussion, we also relied a decision of Union Territory Consumer Disputes Redressal Commission, Chandigarh in the case of Voltas Limited Vs. Amritpal Kaur and Other reported in (2010) CJ 633 (Chandigarh) where it was held that in case of manufacturing defect of Air Conditioner, O.Ps are directed to replace the defective A.C. with a new one. In a sequel to the aforesaid discussion, we allow the case of the complainant against the O.Ps for replacement of the defective A.C.
7. In the result we allow the case of the complainant against all Opposite Parties who are jointly and severally liable to replace the Air Conditioner and to supply new of the same capacity to the complainant within two months from receipt of this order. However, we are not inclined to pass any order with regard to cost and compensation. This case is disposed of accordingly.
8. The order is pronounced on this day of 16th November 2016 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and be sent to the server
