J.S. Bhatia (President)

1. The complainant has filed the present complaint under the Consumer Protection Act against the opposite parties on the averments that complainant has purchased a split Air Conditioner(AC) of Whirpool having make 3D 1.5 T 14017(T.P) alongwith stabilizer 170 V Viveka from the showroom of opposite party No.1, vide invoice No.25 dated 26.4.2014 by paying Rs.38,500/-. The said AC was to be installed at his small internet cafe meant for self employment and only for income for himself. Before getting the AC installed at the request of the complainant one of the official from the showroom visited the premises where the AC was to be installed and he confirmed that the AC which the owner of showroom had recommended was good enough to cool the entire place much more than satisfaction of the complainant. Complainant who had purchased the AC from his saving and all hard earned money of this father was shocked to find that the AC was not giving adequate cooling. The complainant immediately brought it to the notice of opposite party No.1 on which the officials pretended to be astonished and told the complainant that it was the first ever complaint and assured complainant that the fault would be rectified immediately. Contrary to the promise made by opposite party No.1 that they would send the mechanic immediately, opposite party No.1 sent the mechanic after sufficient delay and thereby causing disturbance to the complainant and the people visiting the premises. The mechanic after inspection of the AC showed his inability to set right the fault and asked complainant to wait for few more days till some more qualified mechanic came from the company i.e opposite party No.2. After wait for considerable time a mechanic came and he after inspecting the AC and the premises told that he should get the wire changed as it was thin and asked to replace it with wire of 2.5 mm. It was strange as the entire fitting has been done by the opposite party No.1 and at that time this thing was not intimated to the complainant but any how the complainant got the wire changed by paying from his own pocket. To add to the fury of complainant there was no change in cooling and thereby causing lots of inconvenience to the complainant and the persons visiting the premises for using internet. The complainant and his father again intimated the opposite parties again. Again the mechanic came and this time he asked to change the curtains and also the door with Allmunium. The complainant with great difficulty arranged money and got the curtains and door replaced. As the previous door had been replaced with new Allmunium door as such a new shutter was also got fitted in the said premises. All this spoiled the whole budget of the complainant and his family. All these added expenditures and behaviour of opposite parties was disgusting as prior to the installation of AC and at the time of inspection all the facts about getting thick wire and curtains changed were never told to the complainant, more over all the fitting was done by officials of opposite party No.1. Still now there was no change in cooling and again the mechanic was called. The complainant was shocked when the mechanic from the office, opposite party No.2 also refused to rectify the fault and flatly told complainant that the AC will not give more cooling then what it was giving and that was a manufacturing fault. On such like averments, the complainant has prayed for directing the opposite parties to replace the AC with new one. He has also claimed compensation and litigation expenses.

2. Upon notice, opposite party No.2 appeared and filed a written reply pleading that the present complaint is not maintainable as the complainant is using the AC in question for commercial purpose as he is running a Cyber Cafe/Internet Cafe. The complainant does not fall within the definition of complainant under Consumer Protection Act and as such the present complaint is liable to be dismissed on this ground alone. The AC has been checked by the service engineer on 4.5.2014, 5.5.2014, 10.5.2014, 16.5.2014, 27.5.2014 and the AC is working OK and is giving proper cooling. Minor adjustments have been made and there is no fault in the AC. The complainant has not filed any document to show that the AC is not working properly. In fact the complainant has got installed 1.5 Ton AC for commercial purpose. There can be many reasons for lesser cooling other than the defect alleged by the complainant. As AC has been installed in internet cafe, there can be very frequent opening and closing of the door. Moreover, the cooling depends upon the area and design of the cafe, number of computers installed and number of persons sitting in the cafe. It is submitted that whenever any complaint was received by the authorized service centre of the opposite party No.2, it was duly attended but no fault was found with the AC. However, time and again minor adjustments regarding the proper usage were made. All the complaints were attended promptly as the engineer visited the complainant 6-7 times within 20 days. It is duty of the complainant to get the internal wiring of proper thickness installed. The AC is working properly. It denied other material averments of the complainant.

3. Upon notice, initially Sh.Nishan Singh representative of opposite party No.1 appeared and subsequently he absented himself from the proceedings and as such opposite party No.1 was proceeded against exparte.

4. In support of his complaint, complainant has tendered affidavits Ex.CA to Ex.CC alongwith copies of documents Ex.C1 to C3 and closed evidence.

5. On the other hand, learned counsel for opposite party No.2 has tendered affidavit Ex.OP2/A alongwith copies of documents Ex.OP2/1 to Ex.OP2/6 and closed evidence.

6. We have carefully gone through the record and also heard the learned counsel for the complainant and learned counsel for the opposite party No.2 and further gone through the written arguments submitted on behalf of opposite party No.2.

7. It is not disputed that complainant purchased the split AC from opposite party No.1 vide retail invoice dated 26.4.2014 Ex.C1 for Rs.38500/-. The grievance of the complainant is that the AC is not giving proper cooling and there is manufacturing defect in it. On the other hand, firstly the objection of the opposite party No.2 is that the complainant has purchased the AC in question for commercial purpose as he is running Cyber Cafe and as such he can not be termed as consumer under the provisions of the Consumer Protection Act. In para 4 of the complaint, which is supported by an affidavit Ex.CA of the complainant, it is specifically alleged that the said AC was to be installed at his small internet cafe meant for self employment and only income for himself. In corresponding para 4 of the written reply on merits, the opposite party No.2 has pleaded that the contents of para 4 are denied for want to knowledge as same relates to opposite party No.1. So opposite party No.2 has not specifically denied this fact. Where any person purchases any article may be for commercial purpose to earn livelihood by way of self employment then in such a case, there is a exception and complainant is to be treated as consumer. So objection of opposite party No.2 in this regard, in the circumstance of the present case, is not tenable. The complainant has failed to prove any manufacturing defect in the AC in question. He has only tendered his affidavit, besides affidavit Ex.CB of Gurpreet Singh a customer and affidavit of his father Ex.CC. The complainant has not tendered affidavit of any expert witness to prove that there is any manufacturing defect in the AC in question. So the only grievance of the complainant is that it is not giving proper cooling. Counsel for the opposite party No.2 contended that whenever any complaint was received regarding AC in question by opposite party No.2, the same was promptly attended to and minor adjustments were made and the AC is working in OK condition. The opposite party No.2 has placed on record job sheet dated 4.5.2014 Ex.OP2/1 wherein in the column of engineer remarks/wire adjusted is mentioned. In next job sheet dated 5.5.2014 Ex.OP2/2 in the column of engineer remarks, dry service done is mentioned and in the column of customer remarks, OK is mentioned. The opposite parties have also placed on record job sheet dated 16.5.2014 Ex.OP2/3 wherein in the column of engineer remarks, it is mentioned that this is repeat call and customer AC is OK but in the column customer remarks/replace AC is mentioned. In job sheet dated 10.5.2014 Ex.OP2/5 AC is OK and this is repeat call is mentioned. In another job sheet dated 27.5.2014 Ex.OP2/6 in the column of engineer remarks, AC is already OK and their senior engineer also visited is mentioned. So according to the opposite party No.2, the AC is OK. This fact is mentioned in number of job sheets. The AC is still under warranty period. However if there is any defect regarding cooling in the AC, the opposite parties No.2 through its service centre can again inspect or check the AC and rectify the defect in it, if any.

8. In the above circumstance, the present complaint is disposed off with the directions to opposite party No.2 to send its engineer or mechanic to the premises of the complainant within 15 days from the date of receipt of copy of this order and if there is any defect in the AC then to rectify the same free of cost. However in the circumstance of the case, there shall be no order as to cost. Copies of the order be sent to the parties free of costs under the rules. File be consigned to the record room.

Dated Parkash Singh Lamme Jaspal Singh Bhatia

04.02.2015 Member President