Per:- Mr. Deshpande, President Place : BANDRA JUDGMENT
The Opposite Party No.1 is the manufacturer of air-conditioners, whereas the Opposite Party No.2 is the dealer. The Complainant purchased a 1.5 ton window air-conditioner from the Opposite Party No.2 – Dealer; on 6/4/2007, which was delivered to the Complainant on 7/4/2007.
[2] It is the case of the Complainant that on 4/6/2007, the air-conditioner broke down and resulted into no cooling effect. A complaint was registered on 5/6/2007 with the Customer Care Centre of the Opposite Party No.1 – Company. However, there was no response. On the next day i.e. 6/6/2007, the Complainant made a telephone call to the Customer Care Centre of the Opposite Party No.1 – Company; and he was assured that a technician shall visit his house. On 7/6/2007, a technician sent by the Opposite Party No.1 – Company; visited the residence of the Complainant and found that there was problem of leakage of gas in the air-conditioner and the air-conditioner was removed and taken to the workshop for repairs. However, the air-conditioner was not repaired immediately and the Complainant was required to face serious inconvenience & hardship. [3] Further, it is the case of the Complainant that again on 21/10/2007, there was break-down with the air-conditioner, which resulted into no cooling effect. A complaint with the Customer Care Centre was lodged on the next day and it was resolved after a period of four days i.e. 27/10/2007. This time, however, the Opposite Party No.1 – Company; expressed its regret about inconvenience caused to the Complainant. [4] In view of above instances, the Complainant made a request, by an e-mail dtd.18/11/2007, to the Opposite Party No.1 – Company; to replace the air-conditioner to which a reply dtd.19/11/2007 was received from the Opposite Party No.1 – Company; that necessary action was being taken. However, no further action was taken. [5] It is the case of the Complainant that the Complainant’s flat is situate on the third floor, which is the top floor of the building and in absence of air-conditioner, the Complainant faced serious inconvenience & hardship. On account of frequent failure of the air-conditioner and no cooling effect, the Complainant had to sustain serious inconvenience & hardship. His request for replacement of the piece was not considered by the Opposite Party No.1 – Company. Ultimately, the Complainant filed present complaint, seeking direction as against both the Opposite Parties to replace the air-conditioner supplied to him with a new air-conditioner and to pay him compensation in sum of Rs.1,00,000/-. [6] The Opposite Party No.1 – Manufacturing Company; contested the complaint by filing its written version and took stand that regard break-down, which was resulted on 5/6/2007, appropriate action was taken and necessary repairs and gas changing of the air-conditioner was done and the air-conditioner was redelivered to the Complainant on 10/6/2007. Thereafter, according to the Opposite Party No.1 – Company; the Complainant has lodged a false complaint and an engineer of the Opposite Party No.1 – Company; visited the residence of the Complainant on 15/7/2007 and found that the air-conditioner was working properly. Regarding break-down reported on 21/10/2007, the Opposite Party No.1 – Company; took stand that its Customer Care Centre received a complaint on 21/10/2007 and it was attended and the defect was rectified. The Complainant also expressed his satisfaction with the performance of the air-conditioner. However, vide an e-mail dtd.18/10/2007, the Complainant made a request for replacement of the air-conditioner, but it was not justifiable since during the period of warranty, piece cannot be replaced. No manufacturing defect was noticed with the air-conditioner. Thus, the Opposite Party No.1 has justified its stand in not acceding to the request made by the Complainant to replace the air-conditioner. [7] Inspite of due service of notice of appearance issued by this Forum, the Opposite Party No.2 – Dealer; chose to remain absent and did not file its written version on the record, as called for by this Forum and as such, was set ex-parte. [8] The Complainant filed his rejoinder to the written version filed by the Opposite Party No.1 – Company. The Complainant also filed his affidavit of evidence as well as documents. The Opposite Party No.1 – Company; also filed copies of documents as well as correspondence. Both the sides have filed their respective written notes of arguments. [9] We have gone through the pleadings, affidavits as well as documents and written notes of arguments filed by the parties to the complaint proceeding. [10] We take the points that arise for our consideration and record our findings there-against as below:- Sr. No. | Points for consideration | Findings | 1. | Whether the Complainant has proved that there has been deficiency in service on the part of the Opposite Party No.1 – Company; regarding the repairs of the air-conditioner? | YES | 2. | Whether the Complainant is entitled to replacement of the air-conditioner? | NO | 3. | Whether the Complainant is entitled to recover compensation? | YES. However, only to an extent of Rs.10,000/-. | 4. | What order? | The complaint is partly allowed. |
[11] There is no dispute between the parties to the complaint proceeding as regards the fact that the Complainant purchased a 1.5 ton air-conditioner, which was manufactured by the Opposite Party No.1 – Company; from the Opposite Party No.2 – Dealer; for sum of Rs.15,300/- on 6/4/2007. The Complainant has produced on the record a copy of the bill, which as Exhibit-A. [12] It is the case of the Complainant that on 4/6/2007, the air-conditioner broke down which resulted in no cooling effect. The Complainant lodged a complaint with the Customer Care Centre of the Opposite Party No.1 – Company; on 5/6/2007 and on 7/6/2007, a technician of the Opposite Party No.1 – Company; visited the Complainant’s house and found that there was leakage of gas from the air-conditioner and it was taken to workshop for repairs. The air-conditioner was not returned immediately on repairs and the Complainant was required to face serious inconvenience & hardship. In the written version as filed, the Opposite Party No.1 – Company; has admitted to have received such complaint and also admitted that the air-conditioner was removed and necessary repairs were conducted. According to the Opposite Party No.1 – Company; however, on repairs, the air-conditioner was fitted on 10/6/2007. This shows that the air-conditioner was not taken to the workshop immediately and for about six days, the Complainant had to pull on without an air-conditioner. [13] As regards the second incident of break-down, according to the Complainant, on 21/10/2007, the air-conditioner broke down and resulted in no cooling effect. He lodged a complaint with the Customer Care Centre of the Opposite Party No.1 – Company; on the next day i.e. on 22/10/2007 and this time, the problem was resolved on 27/10/2007. According to the Opposite Party No.1 – Company; its engineer had visited the Complainant’s residence on 25/10/2007 and found that there was thermister problem and the same was replaced and rectified. Thereafter, the air-conditioner was working in a good condition. The Complainant has produced on the record a copy of e-mail received from the Opposite Party No.1 – Company; in which the Opposite Party No.1 – Company; expressed its regret for the inconvenience caused to the Complainant. In the said e-mail, there is no statement to the effect that the air-conditioner was attended and repaired on 25/10/2007 i.e. within a period of 02-03 days from the break-down. This shows that on both the occasions, there was delay on the part of the Opposite Party No.1 – Company; in attending the air-conditioner and conducting the repairs. [14] According to the Complainant, he made a request to the Opposite Party No.1 – Company; vide an e-mail dtd.18/11/2007 to replace the air-conditioner to which, he received a reply dtd.19/11/2007 from the Opposite Party No.1 – Company; a copy of which is produced on the record at Exhibit-F. The Complainant was directed to contact Samsung Customer Contact Centre, but there was no refusal on the part of the Opposite Party No.1 – Company; to replace the air-conditioner. In the written version as filed, the Opposite Party No.1 – Company; has taken stand that during the period of warranty, piece is not replaced. In view of the fact that above-referred both the incidents of break-down of air-conditioner had taken place during the warranty period, the Opposite Party No.1 – Company; was justified in not considering the request made by the Complainant to replace the air-conditioner. [15] Apart from that, the Complainant has failed to establish that there is a mechanical fault or defect with the air-conditioner. Unless & until there is a mechanical fault with the goods purchased by a consumer, the vendor/service provider would be under no obligation to replace the same. In the present case, the Complainant has failed to establish that there is any mechanical fault with the said air-conditioner. [16] Apart from that in the affidavit of rejoinder as well as in the written notes of arguments filed by the Complainant, there is no statement that after the month of October-2007, there was any break-down with the air-conditioner. During the course of oral arguments, the Complainant admitted that the unit is working O.K. In the written notes of arguments filed by the Complainant, there is no statement that the air-conditioner is not being used or functioning and it has remained idle. This shows that the air-conditioner is working fine. In the complaint as well as in affidavit of rejoinder, there is no statement that after the month of October-2007, there was again incident of break-down. From these facts we can draw inference that from the month of October-2007 onwards, the air-conditioner in question is properly functioning. Thus, there is no question of replacement of the air-conditioner. [17] However, as mentioned above, there was a delay on the part of the Opposite Party No.1 – Company; in attending the complaint lodged by the Complainant regarding break-down of the air-conditioner and in the meantime, the Complainant was required to face inconvenience & hardship. In the e-mail dtd.19/11/2007, the Opposite Party No.1 – Company; admitted these facts and expressed its regret for the same. In view of the inconvenience caused to the Complainant and hardship faced by him, we find that the Complainant is entitled to claim compensation from the Opposite Party No.1 – Company. We also find that compensation in sum of Rs.10,000/- will meet the ends of justice. With this, we proceed to pass the following order:- ORDER The complaint is partly allowed. The Opposite Party No.1 is hereby directed to pay to the Complainant, compensation in sum of Rs.10,000/- and costs of Rs.5,000/-. The Opposite Party No.1 shall comply with the foregoing order within a period of four weeks from the date of receipt of this order failing which, the Opposite Party No.1 shall also be liable to pay interest on the amount of Rs.10,000/- @ 9% p.a., as from the date of expiry of stipulated period of four week till realization of entire amount by the Complainant. The complaint, as against the Opposite Party No.2, stands dismissed. Rest of the claims of the Complainant stands rejected. Parties shall be informed accordingly by sending certified copies of this order.
| | [HONABLE MRS. Mrs.DEEPA BIDNURKAR] Member[HONABLE MR. Mr. J. L. Deshpande] PRESIDENT[HONABLE MR. MR.V.G.JOSHI] Member | | 
