STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

Date of Institution: 15.11.2017

Date of final hearing: 26.07.2023

Date of pronouncement: 08.09.2023

First Appeal No.1382 of 2017

IN THE MATTER OF:-

Carrier Midea India Pvt. Ltd., 1^st Floor, Pearl Tower, Plot No. 51, Institutional Area, Gurugram, Haryana through its authorized representative Mrs. Arpita Duarah.                                            ...Appellant

Versus

1. Sabuddin S/o Sh. Munne Khan, Shop No.2, in H.No. 524, Near Kamau Mandir Parvatia Colony, NIT, Faridabad, Haryana.
2. M/s. Ishwar Sales Corporation, Shop No. 224, Gurudwara Road, Near Ishwar Cable, Jawahar Colony, NIT, Faridabad, Haryana through its proprietor.                                       …..Respondents

CORAM:              Naresh Katyal, Judicial Member

Argued by:-        Ms. Gunjan Rishi, counsel for the appellant.

Ms. Puneet, counsel for respondent No.1.

Service of respondent No.2 already dispensed with being proforma respondent.

                                                ORDER

NARESH KATYAL, JUDICIAL MEMBER:

          Delay of 06 days in filing of this appeal stands condoned for the reasons stated in application seeking condonation of this delay.      

2.      Challenge in this appeal No.1382 of 2017 has been invited by Carrier Midea India Pvt. Ltd.(OP No.2) to the legality of order dated 09.10.2017 passed by District Consumer Disputes Redressal Forum-Faridabad  (In short “District Consumer Commission”) in complaint case No.147 of 2016.

3.      Facts in brief: complainant purchased one Split Air Conditioner 3 Star (1.5 ton: Model No. 42KGE-018M) from OP No.1 for Rs 36,000/- vide invoice No. 168 dated 07.05.2014, which as per plea, was not giving proper cooling. He contacted OP No.2 (appellant), who assured him that it will send its Engineer at his residence. Engineer came at residence of complainant and inspected the air conditioner, but he only washed it at that time. Defect therein could not be removed. It is pleaded that: complainant approached OPs, several times to get exchange “defective air conditioner”, but OPs avoided it, on one pretext or the other. As per plea, there is manufacturing defect in air conditioner and this fact was within knowledge of OPs. It is pleaded that OPs have played ‘fraud’ upon complainant. He sent legal notice dated 30.04.2015 through his counsel, but to no avail. By pleading deficiency in service of OPs; he filed complaint for issuance of directions to OPs: to refund Rs 36,000/- along with interest @ 18% p.a. from date of its payment till realization of amount; to pay him Rs.1,00,000/- as compensation for mental tension and harassment and also pay him Rs 11,000/- as litigation expenses.

4.      Upon notice, OP No. 1 did not appear. Vide order dated 27.05.2016 of learned District Consumer Commission; it was proceeded against ex-parte.

5.      OP No.2 raised defence. It is pleaded in written version that: complaint has been filed with dishonest intention by submitting wrong facts. Complainant is not a consumer and hence complaint is not maintainable. It is pleaded that as per terms of warranty; OP during period of warranty is only liable to repair or replace the defective parts, if any in the unit purchased and not to refund its price. Following is the text of warranty terms and conditions:-

“…..during a period of 12 (twelve) months commencing from the date of invoice, as provided in the Warranty Registration Card, the Company undertakes to repair or replace as it deems fit in sole discretion, free of charge, any part or parts of the said unit (including the compressor, condenser and evaporator) which proves to be defective in materials and workmanship.”

6.      It is pleaded that despite there being no alleged defects; OP No. 2/appellant had attended each complaint of complainant with utmost diligence and visited him last on 21.04.2016 i.e. after receiving copy of complaint from Hon’ble Forum. On this day, technician noted that: Room Temperature after running air conditioner was 26.5 degree Celsius and Grill Temperature was, as low as 12.3 degree Celsius. It is evident that unit was functioning perfectly fine and there is absolutely no cooling problem as alleged by complainant. Complainant, arbitrarily demanded replacement of unit. It is pleaded that unit has been installed, just above main entrance of complainant’s Salon, which has considerable footfalls. As a result, entrance door keeps opening frequently and cooling inside Salon gets affected. Also, room in which AC installed is south facing and receives direct sunlight during most part of day. It is pleaded that owing to these attending circumstances; it is possible that complainant’s unit is not cooling the premises, as per his expectations. On 25.10.2014, he registered complaint of no air flow in unit. Upon examination, it was found that condenser of “unit was completely choked with hair”. Complainant abused and misbehaved with technicians, who had gone to attend complaint. Upon attending complaint dated 25.04.2015, it was found that “wires of unit were damaged by rats”. Since, such damage is outside purview of warranty, technician gave an estimate cost for repairs, but complainant refused to pay and insisted on replacement of unit. Inter alia, on these pleas, dismissal of complaint has been prayed.

7.      Complainant and OP No. 2 led their respective evidence, oral as well as documentary.

8.      On analyzing the pleas and evidence; learned District Consumer Commission-Faridabad vide order dated 09.10.2017 has allowed the complaint, thereby directing OPs, jointly and severally, to replace defective unit with new one, and also awarded compensation of Rs.2200/- for causing harassment and mental agony and further allowed Rs.2200/- as cost of litigation to complainant.

9.      Feeling aggrieved; OP No.2 has filed this appeal.

10.    Learned counsel for appellant and for complainant have been heard at length. With their able assistance record has been perused.

11.    On behalf of appellant/OP No.2; it is urged that factual and legal aspects of the matter have been totally ignored. There is agreed warranty between appellant and complainant regarding Split AC in question. Appellant cannot travel, beyond scope and ambit of warranty clause. It is urged that there is no manufacturing defect in unit and whatever the problems in the unit were; same were got noted to appellant by complainant; duly attended and rectified. It is complainant who misused the unit. Reply submitted by appellant and evidence in form of duly sworn affidavit of appellant’s representative reflect a practical approach adopted by appellant. Installation of unit by complainant at his Salon and other allied factors like: frequent opening of Salon’s door, unit facing south and effected by direct sun light, had collectively led to improper cooling inside complainant’s Salon. Further, it is urged that there is no report of any Engineer or an Expert so appended along with complaint, by complainant, from which it could be gathered that there was some/any manufacturing defect in split air conditioner. Hence, it is urged that just on surmises and conjectures, inference of manufacturing defect could not be drawn. It is urged that: unit was in perfect working condition from the date of its purchase (07.05.2014) till April-2015, when wire of swing motor were found damaged by rats. Appellant’s technician on his visit at residence of complainant on 21.04.2016 (after filing of complaint) had again noted Room Temperature as 26.5 degree Celsius and Grill Temperature as 12.3 degree Celsius which substantiate that there was no cooling problem in the unit. The District Consumer Commission has also lost sight of fact that there was choking with hair which had effected the cooling.  On these submissions; learned counsel for appellant/insurer has urged for acceptance of appeal.

12.    Refuting the contentions; learned counsel for respondent No.1/complainant has contended that impugned order dated 09.10.2017 passed by learned District Consumer Commission-Faridabad is legally justified on given facts and evidence and same does not warrant any interference in this appeal.

13.    This Commission has critically and subjectively analyzed rival submissions put before it. Complainant purchased Split AC 3 Star (1.5 ton: Model No. 42KGE-018M) from OP No.1 for Rs 36,000/- vide invoice No. 168 dated 07.05.2014. Complainant has set up a specific case that: the unit purchased by him was troublesome and not giving proper cooling and there was “manufacturing defect” in unit which could not be removed.  Burden to prove the manufacturing defect in the unit, lay upon complainant alone and this burden will never shift. Curiously enough, there is no report of any expert like: Mechanical or Electrical Engineer appended along with complaint, which could stimulate the cause of complainant.   Opinion of expert body in such like cases would be an essential in put.   It has to be borne in mind that manufacturing defect is much more than ordinary defect which can be cured by replacing the defective part.   Inherent manufacturing defect cannot be presumed on mere whimsical pleas, on conjectures, surmises and supposition.  In legal parlance; Cogent, credible and adequate evidence supported by an opinion of expert are the normal parameters enabling proof of manufacturing defect. Unless, burden to prove manufacturing defect is satisfactory discharged by complainant; no inference of manufacturing defect in the unit can be drawn.

14.    Appellant has laid stress on warranty clause (already reproduced herein before). This warranty clause cast duty upon the manufacturer to repair or replace Compressor, Condenser and Evaporator which are defective in material and workmanship during the period of warranty i.e. 12 months from the date of purchase. Meaning thereby, appellant acknowledges that such types of defects are attributable to faulty material or workmanship at the time of manufacture. Warranty clause, of course, binds appellant/OP No.2 and undoubtedly the complainant as well. This is just because, once complainant has purchased the unit in question (split AC) then obviously, he has accepted the warranty given by manufacturer. Hence, there is an implied acceptance of warranty by complainant. There is no agreement to replace the unit in question. This warranty clause, as per phraseology of written version and duly sworn affidavit dated 05.07.2017 of Arpita Duarah, Assistant General Manager-Legal of appellant has been specifically stated. Therefore, it is not a case of silence of contract of sale, as to warranty clause. To infer that there was any manufacturing defect in unit, despite there being a warranty clause for replacement of defective parts viz. Compressor, Condenser and Evaporator by Learned District Consumer Commission-Faridabad in impugned order dated 09.10.2017 is without any foundation. Consequently, the observation of Learned District Consumer Commission-Faridabad in Para No. 6 of its order dated 09.10.2017 which reads that “It seems there is some defect in the air conditioner which is beyond repairs” is not sustainable at legal pedestal and same is set aside. If emphasis is made on word “seems” in the observation of learned District Consumer Commission, then it would imply that there is no formidable and acceptable base before it, to hold that there is some manufacturing defect in unit. Approach of learned District Consumer Commission is apparently accentuated on mere supposition, which has no place in law. Hence also impugned order dated 09.10.2017 has no credence, thus is hereby set aside.

15.    Complainant has installed the unit purchased by him at his Salon. Specific averment has been made in the stance of appellant that unit purchased by complainant suffers less cooling owing to choking of Condenser Coil with hair, cut at Salon. This averment has been supported by service report dated 25.10.2014 Ex. RW1/3.   It recites that: ‘Condenser Choke due to hair. Machine is cooling OK’. Another report Ex.RW1/4 dated 25.04.2015 recites that: wire bitten by rat.  When technician of OP visited complainant’s place at 21.04.2016 (after filing of complaint), he has mentioned in service report Annexure RW1/2 that: Room Temperature was 26.5 degree Celsius and Grill Temperature was 12.03 degree Celsius.  Above quality averments have been supported by through duly affidavit dated 05.07.2017 of Arpita Duarah-Assistant General Manager-Legal with OP/appellant.  There is no evidence led by complainant to controvert above evidence.  This will prove that after two years of purchase unit (Split AC) by complainant, it was working properly and there was no cooling problem.  This will also establish that even after filing of complaint, the attitude of appellant towards complainant was customer friendly.  It is complainant who has mishandled the unit and now putting blame on appellant.

16.    Legal notice dated 30.04.2015 has been served by complainant upon OP 2/appellant. It has been replied vide reply dated 07.09.2015- Ex. RW1/5. Integral part of this reply recites that representative of OP visited at premises of complainant to check AC. On examination, it was found that wire of swing motor of AC has been damaged by rats.  Owing to this, AC had stopped functioning.  Reply also recites that damage caused by rats is outside the preview of product warranty.  But despite this, being a customer friendly company we (manufacturer) had offered to repair said AC free of cost.  However, you (complainant) have refused to get the said AC repaired and instead demanded full refund of price of AC.   In end of this reply-EX.RW1/5, following has been stated:

“But be that as it may, and without going into the merits of the   Said Legal Notice at this stage, we are once again expressing our willingness to repair the said AC free of cost.  So kindly let    us know a convenient time and date of your choice so that          necessary repairing work can be carried out at the earliest.  You are also requested to give a confirmation that no physical and material harm or loss will be caused to our technician(s), deputed to carry out the said repair.”

17.    Above quality reply would establish that appellant had always adopted a customer friendly approach towards complainant.  Hence, the complainant’s allegation that OP have refuse to acceded his legitimate request and act and conduct of OP’s were wrong, which caused him mental tension, agony and harassment, are unfounded and baseless.  No compensation can be awarded to complainant.   Impugned order dated 07.10.2017 awarding him compensation of Rs. 2200/- for causing harassment and mental agony and also awarding complainant Rs. 2200/- towards cost of litigation is also set aside.

18.    As a sequel thereto, present appeal carry substance and merits.  It is accordingly accepted.  Impugned order dated 09.10.2017 passed by Learned District Consumer Commission-Faridabad in Consumer Complaint No. 147 of 2016 is set aside.   

19.    The statutory amount of Rs.20,200/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

20.    A copy of this judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986/2019. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.

21.    File be consigned to record room.

Date of pronouncement: 08^th September, 2023

                                                                             Naresh Katyal                                                                                          Judicial Member

Addl. Bench-II