IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM

DATED THIS THE       16^th  DAY OF SEPTEMBER  2022

Present: -        Sri. E.M.Muhammed Ibrahim, B.A, LLM. President

Smt.S.Sandhya   Rani. Bsc, LLB ,Member

Sri.Stanly Harold, B.A.LLB, Member

    CC.No.30/2017

Satheesh Kumar, 38 years,

S/o Chandrasekharan Pillai,

Thevalakkarayath Puthen Veedu,

Anayadi P.O., Shooranadu North,

Kollam.                                                                            :           Complainant

(By Adv.Chirakkarathazham S.Sureshkumar)

V/s

1.     QRS Retail Ltd.,

                  Mathson Tower,

                 Pulamon Junction, TVM Road,

                Kottarakkara 691 531.

                (By Adv.David Koshy)

2.    Adonis Customer Relation Center,

                 M/s Aryans Wave, Lal Bhavan,

                Andheri Kurla Road,

               Opp.Manorama, Kadappakkada,

               Kollam 691 008.                                                        :     Opposite parties

              (By Adv.David Koshy)

3.   MIRC Electronics Ltd.,

                Onida House, G-1 M.I.D.C,

                Mahakali Caves Road,

               Andheri East, Mumbai 400 093.

              (By Adv.David Koshy)

                                                            ORDER

Sri. E.M.MUHAMMED IBRAHIM , B.A, LLM,President

This is a case based on a complaint filed U/s 12 of the Consumer Protection Act 1986.

The averments in the complaint in short are as follows:-

The complainant on 11.04.2012  has purchased an Onida Air Conditioner Split of 1Ton-2 Star and a Gurdian Stabilizer from the 1^st opposite party by paying Rs.19,600/-.  After six months of the purchase the air conditioner began malfunctioning and its cooling become very low.  The complainant made a complaint before the 1^st opposite party who advised him to contact the 2^nd opposite party which is the authorized service provider of the said brand for conducting service.  Accordingly the complainant contacted the 2^nd opposite party and booked a complaint.  The mechanic deputed by the 2^nd opposite party visited and  rectified    the mistake and it worked for a short period without any complaint.  Thereafter on 23.09.2015 the same defect recurred  again.  Hence the complaint again booked a complaint with 2^nd opposite party.  Hence he contacted through toll free number and he got an assurance that they will send the technician very soon.  After waiting for one week, one technician came and verified the defective AC and expressed his opinion that there is leakage of  gas from the unit and it cannot be rectified by him.  After three days of the visit the complainant has received a call from the Onida complaint cell and they assured to rectify the mistake as early as possible.  Thereafter one technician contacted the complainant over phone and made him to believe that he will visit the complainant’s residence soon.  But nobody visited and rectified the defect.   In the aforesaid circumstances the complainant was constrained to send a notice to the 2^nd opposite party requiring them to rectify the mistake at the earliest.  They have purposefully refused the notice and no further service was given to the complainant.  The above acts of the opposite parties amounts to unfair trade practice and deficiency in service.  The 1^st opposite party being the distributor of the product has an obligation to see that he is selling defect free products and that the products are getting periodical service as assured at the time of sale.  The 1^st opposite party being the manufacturer of the product is duty bound to sell products without any manufacturing defects and to rectify such mistakes on getting complaint from the consumers.  But all the opposite parties joined in hands in committing the above mistakes and deficiency in service.  The air conditioner was purchased for domestic use and it is in not working condition for a long time.  The amount spent by the complainant for the proposed use is not in enjoyment and his money has gone to the hands of the opposite parties by means of unfair trade practice.  The opposite parties are jointly and severally liable to compensate the complainant for the bad practice adopted buy them and liable to replace the defective product.  The 2^nd opposite party avoided to send technicians to rectify the mistake by fully understanding that it cannot be rectified by them.  So the complainant is eligible to get the defective product replaced or to get back the amount paid by him with interest and cost of this proceeding.  He is also entitled to get compensation from the opposite parties due to their deficiency in service and causing of mental agony.  Hence the complaint.

The 2^nd opposite party remained exparte.  Opposite parties 1 and 3 filed separate version.  The contentions of the 1^st opposite party in the written version in short are as follows.  The complainant is not maintainable as its hopelessly barred by limitation.  The 1^st opposite party is a dealer of the A.C manufactured by the 3^rd opposite party.  The 2^nd opposite party is the service provider of  the 3^rd opposite party.  There is no privity of contract between  the 1^st opposite party and the complainant.   The  3^rd opposite party has issued warranty in respect of the A.C.  But the 1^st opposite party has no liability or responsibility under the warranty contract which was for a period of 5 years.

As a dealer the 1^st opposite party has sold the machine to the complainant during the month of April 2012.  It functioned without any complaint in the building of the complainant.  The machine was fixed by the complainant at his own risk.  Hence some damage was caused in the A.C while installing by inexperienced and uncertified electricians and the same cannot be said to be manufacturing defects.  There is absolutely no deficiency in service on the part of the 1^st opposite party.  Complainant has deliberately suppressed materials facts from the Forum.  The complainant is not entitled to get any relief from  the 1^st opposite party.

The 3^rd opposite party filed separate version admitting that it is a duly incorporated company under the provision of the Companies Act and manufacturer of electronics product including the A.C under the brand name of Onida.  There are several excellent authorized service centers with fully equipped for after sales servicing of the Electronics equipments which are manned by qualified and experienced persons.  The 3^rd opposite party has also  admitted that the complainant  registered a complaint only on 23.09.2015 which is four years after its purchase.  But the warranty of the product was one year and the complainant has utilized the product of more than four years.  Hence the complaint is time barred and the said complaint is liable to be dismissed against the 3^rd opposite party.  The complainant has not issued any legal notice to the 3^rd opposite party.  The complainant has made baseless allegations against the service centre.  The complainant has no cause of action against the 3^rd opposite party.  The complainant has not provided any defective electronics goods to 1^st opposite party and if the 1^st opposite party has sold any defective product they have to replaced it.   Since the complainant has purchased the Air Conditioner from opposite party No.1 it is the best person to solve the issue.  This forum has no jurisdiction to entertain the case under the Consumer Protection Act 1986.  The 3^rd opposite party further prays to dismissed the complaint with their costs.

In view of the above pleadings the points that arise for consideration are:-

1. Whether the complaint is maintainable?
2. Whether the opposite party is committed any deficiency in service alleged in the complaint?
3. Whether the complainant is entitled to get the defect of the Air Conditioner rectified or in the alternative entitled to get the defective Air Conditioner replaced with a brand new product or entitled to get the invoice price of the defective Air Conditioner with interest as claimed?
4. Whether the complainant is entitled to get the compensation as prayed for?
5. Reliefs and Costs?

Evidence on the side of the complainant consists of oral evidence of PW1 and Exts.P1 to P4 documents.  The opposite parties have not adduced any evidence either oral or documentary. 

The complainant has filed notes of argument.  Opposite parties have not filed any notes of argument nor advanced any oral argument though sufficient opportunity was granted.

Point No.1 to 3

For avoiding repetition of discussion of materials these three points are considered together. It is clear from the available materials that the complainant has purchased  Onida Air Conditioner Split of 1 Ton-2 Star A.C and a Gurdian Stabilizer as per Ext.P1 retail invoice dated 11.04.2012 for Rs.19,600/- out of which Rs.534/- was realized as installation charge.  Admittedly the complainant purchased the A.C during the month of April 2012.  It is also admitted by the PW1 that the 3^rd opposite party is the manufacturer of the A.C purchased by him at the time of purchasing the A.C the 3^rd opposite party has issued warranty for 12 months.  Though the 1^st opposite party has offered to extend the warranty for  2 years the same was not extended.  PW1 would further admit that he has raised present complaint of malfunctioning on 23.09.2015 which is three and odd years after the date of purchase.  Even if the warranty has been extended for 2 years more the present complaint has been raised even after the extended period of warranty.  But there is absolutely no evidence to show that the warranty was extended.  Hence the complainant has got warranty only for a period of one year.  But the defect on the basis of the complaint has been lodged has occurred three and odd years of the date of purchase.  It is true that the PW1 would state in cross examination that he has demanded not the free service under warranty but demanded paid service.  But he has no such case in the complaint.

The allegations in the complaint coupled with Ext.P2 lawyer notice and the oral evidence of PW1 would indicate that though it was functioned without any complaint for about six months.  It became defective is cooling became low and the auto temperature control has also shown complaint.  However admittedly the technician send by the 2^nd opposite party has rectified the mistake and thereafter the A.C worked properly. Hence it is clear that the opposite parties have rectified the defect free of cost during the warrantee period.   However on 23.09.2015 which is after about three and odd years,  the A.C has become defective again.    Hence the 3^rd opposite party is not liable to cure the defect under warrantee free of charges.

Now it is to be consider whether the 1^st opposite party dealer and 2^nd opposite party service provider has committed any deficiency in service or any unfair trade practice.  As per the contentions of the 1^st and 3^rd opposite parties in their separate version,  the 2^nd opposite party is the service provider authorized by the manufacturer who is liable to rectify the defect of the electronic products including AC manufactured and sold through 1^st opposite party.  The contentions raised by the 3^rd opposite party would  further indicate that even if warranty period is over the 2^nd opposite party service provider is bound to provide sufficient service to the A.C manufactured by the 3^rd opposite party,  as no other service provider has been entrusted to provide service.  It is true that the complainant has raised allegations of the malfunctioning of the A.C lastly on 23.09.2015 and also caused to send Ext.P2 lawyer notice,  indicating the defect and requesting the 2^nd opposite party to rectify the defects.  But the 2^nd opposite party has refused even to receive the notice nor even rectified the defect.  If the complainant has demanded free service without the backing of warranty coverage,  the 2^nd opposite party being the sole service provider is bound to intimate the fact that they are bound to provide paid service only,  since there is no backing of warranty as 3 and odd years have already been elapsed from the date of purchase of the A.C.  Instead of doing so the 2^nd opposite party has failed to carry out the even the paid service requested.  PW1 has specifically sworn in para 2 of the affidavit in when the defect was intimated to the 2^nd opposite party on 23.09.2015 he has lodged a complaint to the 3^rd opposite party as complaint No.1509D916380459 and 3^rd opposite party has assured that service person will approach the complainant and its complaint will be rectified.  Accordingly the complainant waited for about two weeks.  But nobody has turned up to cure the defect.  Hence he contacted the 2^nd opposite party in the toll free No. thereupon they informed  that technician will attend and cure the defect immediately.  Accordingly after one week one technician came and verified the defect of the A.C and declared that there is gas leakage and hence the technician could not rectify the defect.  After three days from the date of above direction by the technician one telephone call from 3^rd opposite party Onida   received and enquired whether the defect has been cured or not.  Thereupon the complainant answered in the negative and intimated the defect pointed out by the technician regarding gas leakage and also asked the 3^rd opposite party to cure the defect.  However the defect has not been cured till date,  though one technician contacted the complainant over phone by enquiring about the location of the residence of the complainant.  In the circumstances complainant send P2 lawyer notice narrating all these facts.  But it is brought out in evidence that the 2^nd opposite party has refused to receive the lawyer notice.  A.C machine is an electronic product the manufacturing company is bound to provide sufficient after sale service even if warranty period is over.  But they can very well realize the service charges after conducting the required service. 

It is also brought out in evidence that the 3^rd opposite party the manufacturing company of the A.C has authorized the 2^nd opposite party to depute trained technicians and undoing the defect.  But that defect was not cured. The lethargic attitude of opposite parties No.1 to 3 in undo the defect of the AC Machine would indicate that they are expecting the complainant to throw away the AC unit after using the same for 2 or 3 years which is not permissible.  A person purchasing one Refrigerator or AC unit is expected to use the same at least for a period of 10 years and in the mean while if any defect occurred it is the duty of the manufacturer to see that the defect is cured by the service agency and if the service personals are incapable of undoing the defect the manufacturer has to remove the said service agency and depute persons having sufficient experience in finding out and curing the defect in a time bound manner failing which they have to pay compensation to the consumer who paid heavy price for their product.  The 1^st opposite party who sold the AC unit to the complainant in view of product liability defined under 2(34) and Section 82 of the Consumer Protection Act 2019 after swallowing the profit earned by the sale of defective product is not expected to say that it is none of their responsibility to undo the defect of the product sold.  If it is not possible for the 2^nd opposite party service agency to cure the defect the 1^st opposite party who sold the defective AC unit is expected to contact  the manufacturer and request them to make necessary arrangement to undo the defect and make the AC unit in a working condition.  The 1^st opposite party has also failed to do so.  In the circumstances there is clear deficiency in service on the part of opposite party No.1 to 3 and they are equally liable for non curing the defect of the AC unit in spite of intimating and requesting to cure the defect to each one of the 3 opposite parties.

The main relief(A relief) sought for in the complaint is to issue a direction to the 2^nd opposite party to cure the defect or to replace the defective AC unit by opposite party No.1 &3 or in the alternative to return the invoice price with interest at the rate of 12% per annum.  However the complainant in para 7 of the argument note has restricted the relief of replacing the product  as it has become a junk due to the non working of the same and kept unattended for a long period.  The above relief sought for against opposite party No.1&3 appears to be un reasonable in view of the facts and circumstances of the case.  Admittedly the complainant has used the AC unit till 23.09.2015 from the date of purchase(11.04.2012).  It is highly unfair to ask for the return of the invoice price of the product after using the same by the complainant for more than 3 years.  It is also not just and proper to replace the defective AC unit which was used by the complainant for a substantial period without proving any manufacturing defect.  The only remedy that can be ordered is to undo the defect of the product in a time bound manner.  However as the AC unit has become junk and useless there is no meaning in ordering to undo the defects of the AC unit.  In the circumstances awarding reasonable compensation to the complainant who suffered financial loss as well as mental agony would be sufficient to meet the ends of justice.  The points answered accordingly.

Point No.4

In the result the complaint stands allowed in part in the following terms:-

1. The Opposite parties No.1 to 3 are directed to pay compensation to the tune of Rs.10,000/- to the complainant for the financial loss as well as for mental agony suffered by him for not undoing the defects of the AC machine purchased as per Ext.P1 retail invoice.
2. The opposite parties No.1 to3  are directed to pay Rs.3,000/-as  costs of the proceedings within 45 days from today.
3.  If the opposite parties failed to comply with direction No.1&2 within 45 days from today the complainant is entitled to recover the amount of Rs.10,000/- with interest at the rate of 12% per annum from the date of order till realization along with costs from opposite party No.1 to 3 jointly and severally.

Dictated to the Confidential Assistant  Smt. Minimol S. transcribed and typed by her corrected by me and pronounced in the  Open Commission this the 16^th day of  September 2022.  

E.M .MUHAMMED IBRAHIM:Sd/-

S.SANDHYA RANI:Sd/-

                                                                         STANLY HAROLD:Sd/-

Forwarded/by Order

                                                                                                Senior superintendent

INDEX

Witnesses Examined for the Complainant:-

PW1                : Satheeshkumar

Documents marked for the  complainant

Ext.P1                            : Retail invoice dated 11.04.2012 for Rs.19,600/-

Ext.P2                            : Lawyer notice dated 22.01.2016

Ext.P3                            : Postal receipt

Ext.P4                            : Returned postal envelops

Witnesses Examined for the opposite party:-Nil

Documents marked for opposite party:-Nil