ORDERS:

Charanjit Singh, President

1        The complainant has filed the present complaint by invoking the provisions of Consumer Protection Act under Section 12 and 13 against the opposite parties on the allegations that he is a farmer and he purchased one split AC having Model AR18NV, Split Type 1.5 Ton from the opposite party No. 1 manufactured by opposite party No. 2 on 7.8.2018 by paying Rs. 39,500/- to the opposite party No.1  vide invoice No. G 244 dated 7.8.2018 and while selling the AC unit the opposite party No. 1 assured the complainant that the unit sold by him is the best in the market and it is covered by one year compressor warranty and five year over all warranty and it was also assured by the opposite party No. 1 that the opposite party No. 2 will immediate replace the unit with a new one in case of any type of defect. From the very first day of installation, the AC unit started giving problems in performance, as, the cooling giving by it was not up to the mark and was not as per the satisfaction of the complainant, as such, the complainant immediately approached the opposite party No. 1 who suggested him to lodge a complaint with the opposite party No. 2 regarding it which was done so by the complainant on 15.10.20218 vide complaint No. 4270706384. As such on the complaint, the opposite party No.2 sent his technician who visited the house of the complainant and told the complainant that the compressor of the unit in question is defective and as such, the unit is required to be replaced with a new one and as such, he told that he will inform about it to the opposite party No. 2, so the complainant believed him but inspite of it neither the AC unit was replaced by the opposite party No. 2 nor the defect was removed by him. The complainant again lodged the complaints with the opposite party No. 2 on 9.4.2019, 30.4.2019, 1.7.2019 and finally on 2.7.2019 vide complaints No. 428520283, 4281801564, 4285728348 and 4285810962 respectively. But neither opposite parties replaced the defective AC unit with a new one nor the complainant was given proper reply to the complaints.  The AC unit purchased by the complainant is suffering from manufacturing defect. The defect was from the very first day of installation but the opposite party No. 2 inspite of knowing it is avoiding the assurance of warranty of replacement of the defective unit with a new one. The complainant has prayed that the opposite parties may be directed to replace the AC unit of the complainant immediately or return Rs. 39,500/- to the complainant immediately and to pay Rs. 15,000/- as compensation and Rs. 20,000/- as litigation expenses. Alongwith the complaint, the complainant has placed on record his affidavit Ex. C-1, self attested copy of Invoice No. 244 Ex. C-2.

2        Notice of this complaint was sent to the opposite parties and opposite party No. 1 appeared through counsel and filed written version taking preliminary objection that the present compliant under Section 12 and 13 of the Consumer Protection Act 1986 is not maintainable in the eyes of law. The present complaint has been filed by the complainant with malafide intention and with ulterior motive to harass the answering opposite party as the complainant has dragged the opposite party in unwarranted and unnecessary litigation by filing the present complaint. The present complaint is not maintainable as per Section 11 of the Consumer Protection Act 1986 and this Commission has got no jurisdiction to try and entertain the present complaint. The complainant has no locus standi to file the present complaint. The present complaint is bad for mis joinder and non-joinder of necessary and proper parties. the complainant as not approached this Commission with clean hands and has suppressed the material facts. The complainant has furnished wrong facts in order to mislead the Commission. The complainant has intentionally did not pleaded the true facts in order to take undue benefits. The complainant has concealed the true facts from this Commission as the complainant has unnecessarily arrayed the opposite party No. 1 as party in the present complaint as the opposite party No. 1 is neither proper and necessary party in the present complaint The opposite party No. 1 is not liable for the defects etc. of the AC as it is the company which gives warranty etc. for the repair of the concerned equipment. The opposite party No. 1 has only sold the AC of the Samsung Company and upon the bill, it is specifically mentioned that there is no direct liability of the dealer for service and the service requires to be made from the service center of the company. As such in the present case, only the company i.e. opposite party No. 2 is liable for removing the defect, if any in the AC. On merits, it was pleaded that the complainant has purchased One split AC having model AR18NV, Split type 1.5 Tone from the opposite party No.1 manufactured by the opposite party No. 2 on 7.8.2018 by paying Rs. 39,500/- to the opposite party No. 1 vide invoice No. G 244 dated 7.8.2018. The opposite party No. 1 has denied the other contents of the complaint and prayed for dismissal of the complaint. Alongwith the written version, the opposite party No. 1 has placed o record affidavit of Mandeep Singh Ex. OP1/1 elf attested copy of Warranty Card Ex. OP1/2.

3        The opposite party No. 2 appeared through counsel filed written version and contested the complaint by taking preliminary objections that the present complaint is bad for misjoinder of parties as answering opposite party has unnecessarily been impleaded as party to the present complaint. The AC in question is perfectly working and needs no repair when service engineer visited the premises of the complainant last time on 27.7.2019 and thoroughly checked the working of AC. The low cooling was due to low voltage problem at the house of complainant. Prior to 27.7.2019 as and when complainant has lodged complaints on 15.10.2019, 9.4.2019, 30.4.2019, 1.7.2019 and 2.7.2019 the same were duly attended by the service engineer and on thoroughly checking the AC no defect was found. The only reason for low cooling was having accumulation of dust on the air filter and after cleaning the air filter AC was giving proper cooling. The visiting service engineer always advised the complainant to clean the air filter after 7 to 10 days of usage to get the effective cooling. Thus no cause of action arose to the complainant against the answering opposite party. The answering opposite party has been unnecessarily impleaded as party to the present complaint. Thus present complaint merits dismissal qua answering opposite party on this ground. It is very apparent from the face of that the complaint has been filed with mischievous intentions thereby enabling the complainant to enrich him at the costs of answering opposite party by filing frivolous claim. The complaint of the complainant deserves dismissal on this ground alone. The complainant till date as and when has lodged complaint with authorized service center it has been duly attended by the service engineer. On every occasions the visiting service engineer on checking the AC found and air filter has been badly clogged due to accumulation of dust. On every occasion the visiting service engineer cleaned the air filter and made the AC functional. Thus there is no deficiency in service on the part of the answering opposite party. The complainant is not entitled for any relief from this commission as he has concealed the true and material facts. The complainant has not come before this Commission with clean hands. Each and every complaint lodged by complainant has been duly attended by the authorized service center and problem has been rectified by cleaning the air filter. But now complainant intentionally with ulterior motive have filed the present complaint alleging totally false allegations and concealed the true facts.  The complainant has not sought the permission of this commission under Section 11(2)(b) of the Consumer Protection Act 1986 before instituting the present complaint against the answering opposite party. Section 11(2) (b) of Consumer Protection Act 1986 clearly prohibits institution of any complaint before the District commission if any or all of the opposite parties reside outside the territorial jurisdiction of District commission unless and until permission is sought from the District Commission for the institution of the complaint. Till date the complainant has not sought any permission for the institution of instant complaint within the territorial jurisdiction of this Commission. Hence the further proceedings in the instant case is bad in the eyes of law. The answering opposite party has no branch office in the Territorial jurisdiction of this commission. The present complaint is liable to be dismissed under section 26 of the Consumer Protection Act, as the present complaint is gross abuse of the process of law and is totally false and frivolous. The complainant as and when has lodged the complaint the same has been duly attended by the authorized service center and reported problem was duly rectified free of costs under warranty. The complainant has not set out any legitimate ground entitling him for replacement or refund of price of AC alongwith compensation and damages. The complainant has neither alleged any specific ir-repairable manufacturing defect and inferior quality of the specific part of the product nor filed any documentary evidence i.e. authenticated report of expert and qualified person of central approved laboratories in respect of alleged submission as required under law. In the absence of any independent expert evidence the claim cannot be allowed. The complainant claims the said AC to be suffering from defects, therefore, it is the legal duty under the discharge of burden upon the complainant to establish the same by technical expert report. But no such report has been adduced by the complainant till date before this commission. Hence in the absence of any such technical expert report the complaint of the complainant cannot be decided as per the provisions of CP Act, 1986. The complainant has sought refund of price or replacement of AC which is not permissible under the law and also under the terms of warranty. The replacement or refund only permissible where defect developed during the period of warranty is of such a nature that it cannot be cured or repaired. In the present case as and when problem has been reported in the AC has been duly rectified by service centre fee of costs under warranty. As per the report of service engineer on 27.7.52019 the AC was perfectly working. Thus there is no consumer dispute between the parties. Mere fact that the product was taken to the service station for one and two times does not IPSO FACTO proves the manufacturing defect. The present complaint is gross misuse of process of law. NO cause of action has arisen in favour of the complainant and against the answering opposite party. The answering opposite party or its authorized service centre has never denied after sales services with regard to the AC in question. The complaint lodged with the service centre with regard to the problem in AC was duly attended and reported problem was duly rectified free of cost. Now the complainant has filed the present complaint with malafide intention just to extract money. The reliefs sought by the complainant in the present complaint are beyond the agreed terms and conditions of the warranty and also outside the ambit of Section 14(1) of the Act. The complainant has sought the replacement/ refund of price of AC with interest, alongwith compensation which are clearly beyond the expressed terms and conditions of the warranty.  The answering opposite party is a renowned company in electronic products and home appliances and is manufacturing electronic products for the past several years. The technology used by the complaint in manufacturing the world class electronic products is highly sophisticated. Thus there is no question of any deficiency in service on the part of the answering opposite party. On merits, it was pleaded that there is overall warranty of one year and additional 4 years is for compressor only. The AC is alleged to purchase on 7.8.2018 and first complaint is lodged on 15.10.2018 after more than 2 months of usage on 15.10.2018 after more than 2 months of usage wherein complainant is alleging that problem is started from the day of installation. The visiting service engineer cleaned the air filter and then AC was giving desired cooling. Unit was perfectly working after cleaning of air filter, there was no problem in the compressor. All the complaints were duly attended by the service engineer and due to non-cleaning of the air filter regularly by the complainant the AC was not giving the alleged desired cooling. There was no defect in the AC. The opposite party No. 2 has denied the other contents of the complaint and prayed for dismissal of the complaint. Alongwith the written version, the opposite party No. 2 has placed on record affidavit of Anup Kumar Mathur Ex. OP2/1, Customer Service record Ex. OP2/2, Acknowledgement of service request Ex. OP2/3, Acknowledgement of service request Ex. OP2/4, Customer service Card Ex. OP2/5, Acknowledgement of service request Ex. OP2/6, Warranty Card Ex. OP2/7.

4        We have heard the Ld. counsel for the parties and have carefully gone through the record.

5        Ld. counsel for the complainant contended that he purchased one split AC from the opposite party No. 1 manufactured by opposite party No. 2 on 7.8.2018 by paying Rs. 39,500/- to the opposite party No.1 vide invoice No. G-244 dated 7.8.2018 Ex. C-2. He contended that from the very first day AC unit in question started giving problems in performance as the cooling giving by it was not up to mark and was not as per the satisfaction of the complainant. He contended that the complainant several times approached the opposite parties and their service engineer approached him but the complaint of the complainant has not been resolved. Ld. counsel for the complainant also contended that AC in question started giving problems from the very beginning and defect of the AC is not cured by the opposite parties inspite of several visits by the service engineer. He also contended that there is manufacturing defect in the AC in question and the complainant visited several times to the opposite parties but the problem in the AC unit has not been solved and prayed that the present complaint may be allowed. In support his case, the complainant has placed on record citations 2014(3) CLT titled Krishanpal Singh Vs Tata Motors Ltd.” page 177 and 2010(2) CLT Cadila Health Care Ltd. Vs Anuradha Enterprises 648.

6        On the other hands, Ld. counsel for the opposite party No. 1 contended that the opposite party No. 1 is not liable for the defects etc. of the AC as it is the company which gives warranty etc. for the repair of the concerned equipment. He further contended that the opposite party No. 1 has only sold the AC of the Samsung Company and upon the bill, it is specifically mentioned that there is no direct liability of the dealer for service and the service requires to be made from the service center of the company. In the present case, only the company i.e. opposite party No. 2 is liable for removing the defect, if any in the AC.

7        Ld. counsel for the opposite party No. 2 contended that the AC in question is perfectly working and needs no repair when service engineer visited the premises of the complainant last time on 27.7.2019 and thoroughly checked the working of AC. He further contended that the low cooling was due to low voltage problem at the house of complainant. Prior to 27.7.2019 as and when complainant has lodged complaints on 15.10.2019, 9.4.2019, 30.4.2019, 1.7.2019 and 2.7.2019 the same were duly attended by the service engineer and on thoroughly checking the AC no defect was found. He further contended that the only reason for low cooling was having accumulation of dust on the air filter and after cleaning the air filter AC was giving proper cooling. The visiting service engineer always advised the complainant to clean the air filter after 7 to 10 days of usage to get the effective cooling. He further contended that the complainant till date as and when has lodged complaint with authorized service center it has been duly attended by the service engineer. On every occasions the visiting service engineer on checking the AC found and air filter has been badly clogged due to accumulation of dust. On every occasion the visiting service engineer cleaned the air filter and made the AC functional and he prayed that the present complaint may be dismissed.

8        In the present case, it is not disputed that the complainant has purchased the AC in question from the opposite party No. 1. The main issue in the present case is that the AC in question started giving problem from the very beginning and case of the opposite party No. 2 is that whenever the complainant has complained to the opposite party No. 2 his complaint was resolved.  Bare perusal of Job cards placed on record Ex. OP2/3, OP2/4, OP2/5, OP2/6 does not prove that what is the defect in the AC Unit. In some Job Cards Voltage problem is reflected, in some Job cards in the repair description column mentioned the problem regarding air filter clean as well as other Job cards does not show what repair work the service Engineer has carried out. All Job Cards have mentioned different problem in AC unit. The opposite party has admitted in the written version that every time there was some dust problem in the AC and complainant was advised to clean the air filter of the unit in question after every 7 to 10 days . It is pertinent to mention here that AC unit cannot require to clean Air Filter of the AC units frequently. Generally cleaning of Air filter of AC is not recommended after 7 to 10 days. The opposite parties have not placed on record any convincing document to prove as to why the air filter of the AC unit is required to clean after every 7 or 10 days. Secondly, the opposite parties have mentioned the issue of low voltage but again the opposite parties have not placed on record any convincing document to prove that AC unit is not cooling properly due to low voltage. Every time opposite parties have taken different stand. Meaning thereby definitely there is manufacturing defect which was not removed by the opposite parties. The opposite parties have taken the objection regarding expert opinion which was not taken by the complainant. On the other hand, when the complainant has taken the stand of some manufacturing defect it was the bounded duty of the opposite parties to appoint expert to take opinion regarding the defect. The opposite parties have not appointed any technical expert which is easily available to the opposite party No. 2 to prove that there was no manufacturing defect in the AC in question and as per citation 2014(3) CLT Krishanpal Singh Vs Tata Motors Ltd. 177 it has been held by the National Consumer Disputes Redressal Commission, New Delhi that manufacturing defect (Car) Onus of proof. Held. When the complainant had to visit the service station repeatedly for repairs. Normally, in such like situation, the onus of proof should be shifted to the side of the opposite party when the manufacturing defects are visible on its face and the opposite party has no explanation to make, the manufacturing defect, must be assumed..

9        It is admitted fact that the complainant is approaching the opposite parties several times from the very start and the job sheets Ex. OP2/2 to Ex. OP2/6 show that there is some problem in the AC from the very beginning. The record shows that the complainant has purchased the AC in question on 7.8.2018 and the complainant approached the opposite party No. 2 on 16.10.2018 vide Ex. OP2/2 and the complainant approached the opposite party No. 2 again and again. It all shows that there is some inherit defect in the AC in question. The perusal of record shows that defect in the AC in question occurred within one year from purchase of AC in question. The defect in the AC in question occurred within one year i.e. within warranty period and if any defect occurred during the warranty period the same is to be replaced. In this regard, Hon’ble Delhi State Commission, New Delhi in case titled as Jugnu Dhillon Vs. Reliance Digital Retail Limited 11(2014) CPJ page 17 has held that

“failure of compressor within 2-3 months of its purchase itself amounts to manufacturing defects- when any company stopped manufacturing particular model under these circumstances only way left is to refund of money alongwith interest- Product found to be defective at the very outset- It is always better to order for refund of amount.”

Hon’ble Supreme Court in case titled Hindustan Motors Limited and Anr. Vs. N.Shiva Kumar and Anr. (2000) 10 Supreme Court Cases, 654 has held that

 “when any company had stopped manufacturing the particular model, under those circumstances, there is no other way except to refund of money alongwith interest, compensation and cost.”

 In the instant case, the A.C in question started giving troubles within warranty period. In this regard, Hon’ble National Commission, New Delhi in  case Shirish Vs. C.S.Rahalkar (Dr) in 2010(3) CLT page 209 has held that 

“the respondent had paid Rs.32,500/- for an original Amtrex air –conditioner and not an assembled air-conditioner. The State Commission has rightly held the petitioner guilty of Unfair Trade Practice as defined under section 2(1) (i) ® of the Consumer Protection Act and consequently, directed the petitioner to compensate the respondent for the same.”

10      In view of above discussion, the present complaint is allowed and the opposite party No. 2 is directed to replace the AC in question with same make and model or to refund the price of the AC in question. The complainant will hand over the AC set in question to the opposite party No. 2. The complainant is also entitled to Rs. 3,000/- ( Rs. Three thousand only) as compensation on account of harassment and mental agony and Rs. 2,500/- (Rs. Two thousand and five hundred only) litigation expenses from the opposite parties. Opposite Parties are directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @9% per annum, on the awarded amount from the date of complaint till its realisation. Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room.

Announced in Open Commission.

30.9.2021