Judgment : Dt.22.11.2017
Shri S. K. Verma, President.
This is a complaint made by one Rajiv Biswas, residing at 6/6/3, K. D. Link Road, Shibrampur, P.S.-Sarsuna, Kolkata-700 061 against Sales Emporium (South), 226, Diamond Harbour Road, P.S.-Behala, Kolkata-700 060, OP No.1 and Managing Director, Carrier Midea India Pvt. Ltd., represented by its Managing Director, having its office 1st Floor, Plot No.51, Sector 32, Gurgaon, Haryana-122 001, OP No.2 praying for replacement of old carrier air condition with the new one, a direction to the OPs to pay Rs.34,500/- with interest @ 18% p.a. payable from 24.4.2016 till the payment of that and Rs.20,000/- for mental agony and Rs.10,000/- as litigation cost.
Facts in brief are that OP No.1 runs a shop in the name and style of Sales Emporium (South) and deals with electrical and electronic equipments such as Air Condition, Television set, Fridge and mobile phone and OP No.2 is a Pvt. Ltd. company incorporated under Indian Companies Act, 1956 Complainants on 17.4.2016 visited the shop room of the OP No.1 and booked an air conditioner machine made by OP No.2 by making a payment of Rs.34,500/- and OP No.1 duly issued a tax invoice to that effect. OP No.1 delivered the air conditioner machine to the Complainant and installed the authorized mechanic OP No.1 was unable to start the machine and after several hours of installation process the machine could be installed. But Complainant found that it was not working properly. On 24.4.2016 at 5 p.m. Complainant lodged a complaint stating his grievance that the air conditioning machine is not working, through e-mail to the customer care of the OP No.2. The customer care of the OP No.2 via e-mail replied that they will find solution and assured the Complainant for the best service of OP No.2. OP No.2 after e-mail dt.25.4.2016 neither replied through mail nor tried to resolve the issue relating to functioning of the air conditioner machine. After ten days, Complainant wrote a letter dt.4.5.2016 to the OP No.1 & 2 asking them clearly to replace the air condition machine. Since then the Complainant repeatedly visited the OP No.1 as because the product purchased by the Complainant is within the warranty period. Instead of promise to replace the same, the OP neither replaced the air conditioner nor paid any heed towards the agony and pain suffered by the Complainant. After repeated visit by the Complainant to the shop room of OP No.1, OP send authorized representative for free servicing and inspite of that non working of the said A.C.Machine did not work properly. So, there is a gross deficiency in the part of the OP. Complainant being harassed filed this complaint.
OP No.1 filed written version and denied the allegations of the complaint. OP No.1 has stated that he has been wrongly impleaded by the Complainant in the said complaint application. The complaint is misconceived and not maintainable. The cause of action to file this application, the complaint is vexatious and harassing. This OP has also denied the allegation of the complaint para-wise. This OP has stated that for the repair of the defect or repair of the said conditioner this OP is not responsible for after sales service. This OP No.1 is not aware of the steps taken by the OP No.2. So, this OP prayed for dismissal of the complaint petition.
OP No.2 also filed written version and denied the allegations of the complaint. OP No.2 has cited several decisions in his written version and denied the allegations that he is not liable for the complainant’s allegation and so OP No.2 also prayed for dismissal of the complaint.
Decision with reasons
Complainant filed affidavit-in-chief wherein Complainant has reiterated the facts mentioned in the complaint petition. OP No.2 filed questionnaire against the affidavit-in-chief of the Complainant. OP No.1 filed affidavit-on-evidence in respect of the complaint filed by the Complainant, because the evidence OP No.1 has asserted the facts which he has mentioned in the written version. Complainant filed affidavit-in-reply against the questionnaire filed by the OP. OP no.2 has also filed evidence wherein he has reiterated the facts mentioned in the written version.
Main point for determination is whether Complainant is entitled to the reliefs as prayed for.
On perusal of the prayer portion of the complaint petition, it appears that the Complainant has prayed for replacement of the air conditioner or refund Rs.34,500/- with interest @ 18% p.a. and Rs.20,000/- compensation for mental agony and Rs.10,000/- as litigation cost.
In this regard, on perusal of the copy of the tax invoice, it appears that Complainant paid Rs.34,500/- for purchasing the air conditioner. Further, on perusal of copy of annexure B, C, D & E it appears that the air conditioner was within the warranty period. Further, it appears that on one occasion the technician went to repair the machine. But he could not make it functioning and so the Complainant was compelled to file this case.
On perusal of the affidavit-in-chief on behalf of the Complainant as well as OP, it appears that they have reiterated the facts mentioned in their complaint and written versions respectively. OP No.1 being the retailer of the carrier air conditioner as mentioned in his written version that he is not liable for any defect in the air conditioner because he has been entrusted to sale the air conditioner and he does not have any liability for any defect in the equipments which he sells. This appears very funny and unfortunate that distributors and retailers only are in the market for earning commission and they are not entrusted to any liability. This Forum is unable to accept such contention and since OP No.1 earned commission he has joint and several liability with the OP No.2 for either repairing or replacing the air conditioner machine through OP No.2.
As such, we are of the view that this is a fit case where OP be directed to replace the air conditioner because the defect occurred just after two months within the warranty period and Complainant who paid the price for that A.C. could not get its service. Further, it is clear that if replacement is not made, OP No.1 is liable to refund the price of the air conditioner because he has taken the price from the Complainant and not OP No.2. In addition, OPs are liable to pay compensation and litigation cost if they do not replace the air conditioner machine.
Hence,
ordered
CC/224/2017 and the same is allowed on contest. OPs are directed to replace the A.C. Machine within two months of this order, failing which they are directed to pay Rs.34,500/- within one month, in default this amount shall carry interest @ 10% p.a. In addition, OPs are directed to pay Rs.10,000/- as compensation and Rs.5,000/- as litigation cost within the above mentioned period. In default, this Rs.15, 000/- shall carry interest @ 10% p.a. till realization. The liability of the OPs are joint and several.
