HON’BLE MRS. FIROZA KHATOON, PRESIDENT
The complainant has filed the instant case on allegation that he has purchased Samsung 1.5 Ton Split Air Condition machine being product model no.AR-18RV3HFTYNNA and the Invoice no.SLT/SA1920/05892 dated 27.01.2020 from the opposite party no.5. It has been stated by the complainant that he purchased the said Air Condition machine from opposite party no.5 on condition to pay the price of Rs.37,000/- (Rupees thirty seven thousand) only by way of 8 (eight) monthly instalments @ Rs.3,700/- (Rupees three thousand seven hundred) only. It has been alleged that after few months the said Air Condition machine started giving trouble. The complainant made complaint with opposite party nos.3 & 4, i.e. the service centre of opposite party no.1. Opposite party no.4 addressed the complaint and detected the defect in the Air Condition machine as ‘gas leakage’ and charged gas in the compressor against rupees zero charge as the complaint was made within the warrantee period. After few months the complainant faced same problem with the Air Condition machine and again a complaint was lodged with opposite party nos.4 & 5. According to the complainant he had purchased a brand new Air Condition machine and due to manufacturing defect and damage of the internal parts of the Air Condition machine, the leakage of gas was occurring frequently affecting the cooling system of the Air Condition machine. In spite of repeated request the said Air Condition machine was not replaced by the opposite parties which are deficiency in service. Hence this case.
The opposite party no.1 is the manufacturing company of the Air Condition machine and opposite party no.2 is its regional office.
The opposite party nos.1 & 2 by filing written statement state that the opposite party no.1 provides an apprehensive warrantee period of one year in case of split Air Condition machine. The warranty period covers only the defects in product arising out of manufacturing or followed workshop within the warranty period. The warranty period of the products means that in case of any problem with the Air Condition machine, the Air Condition machine will be repaired or its parts will be replaced as per warranty policy and the warranty of the Air Condition machine is subject to conditions mentioned in the warranty policy that comes with the product manual. The opposite party nos.1 & 2 further state that on 02.07.2020 their technicians visited the residence of the complainant and had done the gas charging in the compressor free of labour or gas charge as the said fault was within the warranty period. Thereafter, the complainant made second complaint in the month of February, 2021 and accordingly, the technicians of opposite party nos.1 & 2 upon inspection of the said Air Condition machine opined that it needs the ‘gas charging’ in the compressor. Opposite party nos.1 & 2 submit that there is no deficiency in service on their part. Thereafter, the complainant sought replacement of the product within an hour. According to the opposite party nos.1 & 2 the case of the complainant is devoid any merit and liable to be dismissed.
Opposite party no.5 in its written version states that it is a dealer and sells product of opposite party no.1. As per terms and conditions the manufacturer is liable to keep the Air Condition machine defect free within the warranty period. The dealer/seller has no role regarding the repair or replacement of the said Samsung Air Condition machine. The opposite party no.5 admitted that the Air Condition machine was purchased by the complainant from its shop.
Though notices have been served upon opposite party nos.3 & 4 but they have not appeared in the case to contest the same.
Considering the rival pleadings of the parties the following points are framed :
Points for determination
- Is the case maintainable in law and its present form ?
- Is the complainant is a consumer in terms of Consumer Protection Act, 2019 ?
- Is the case barred by limitation ?
- Is the complainant entitled to get relief as claimed for ?
Decision with reasons
In order to prove the case the complainant submitted affidavit in chief and reply to the questionnaire of the opposite party nos.1 & 2 and opposite party no.5 on solemn affirmation on oath.
Opposite party nos.1 & 2 filed affidavit in chief along with photo copies of documentary evidence and reply to the questionnaire of the complainant on solemn affirmation on oath.
The opposite party no.5 by filing a petition though his advocate prayed for treating the written version as evidence which was not be accepted in view of the section 38(6) & 9(c) of the Consumer Protection Act, 2019.
Point nos.1 to 4
For the sake of brevity and convenience all the above mentioned four points are taken up together for consideration and discussion.
On scrutiny of the materials on record and the evidence of the parties, it appear that the case is well maintainable in law and in its present form. The complainant is a consumer in terms of the Consumer Protection Act, 2019. Moreover, the complaint case is not barred in terms of section 69(1) of the Consumer Protection Act, 2019.
Now let us consider whether the complainant is entitled to get any relief as prayed in his complaint application.
It is admitted fact that the complainant has purchased the Air Condition machine from opposite party no.5 for sum of Rs.37,000/- (Rupees thirty seven thousand) only to be payable by eight monthly instalments @ Rs.3,700/- (Rupees three thousand seven hundred) only.
The opposite party no.5 in his written statement stated that the complainant purchased one Samsung Air Condition machine in the year 2020 with the help of finance company and due to non payment of the sum the finance company did not issue NOC to the complainant.
The complainant has not filed single documentary evidence in this case. There is absolutely no evidence on the part of the complainant to show that he has paid the eight monthly EMIs to the finance company to purchase the said Air Condition machine from opposite party no.5. The opposite party nos. 1 & 2 in their affidavit in chief submitted documentary evidence i.e. photo copy of warranty card which is marked document-‘A’; Photo copy of job sheet issued by the technicians of opposite party nos.3 & 4 document-‘B’ and the estimate for repair of Air Condition machine dated 01.03.2021 issued by opposite party no.3 i.e. Samsung authorized service centre document-‘C’. From the evidence of opposite party nos.1 & 2 it is crystal clear that the Cosmetic/Aesthetic/Plastic/Glass Parts/Bulbs/Cables/Consumables are not covered under warranty. The document ‘B’, job sheet reveals that one Ranjit Kumar Ghosh on 23.06.2020 lodged complaint regarding one Air Condition machine having product model no.AR18RV3HFTYXNA and the date of purchase of the said machine is 26.01.2020. The repair of the said machine was completed on 18.09.2020 by engineer Kush Das. Whereas from the affidavit in chief of the complainant we find that he has purchased the Samsung 1.5 ton split Air Condition machine being product model no.AR-18RV3HFTYNNA and the invoice number was SLT/SA1920/05892 dated 27.01.2020. So the Air Condition machine in document ‘B’ is apparently not the Air Condition machine mentioned in the complaint application.
It is apparent on the face of document ‘B’ that gas was charged in the Air Condition machine due to its leakage of one Ranjit Kumar Ghosh.
Here in this case, the name of the complainant is Dipak Kumar Ghosh and not Ranjit Kumar Ghosh. The complainant deliberately not filed any documentary evidence in proof of the allegation he made in his complaint regarding default and/or manufacturing defect in the Air Condition machine which he had purchased from the opposite party no.5.
The burden of proof primafacie lies upon the complainant to substantiate the allegation he made against the opposite party no.1 regarding leakage of gas of the Air Condition machine which he purchased from opposite party no.5. It is needless to mention that the complainant has not discharged his liability to prove that the Air Condition machine which he purchased from opposite party no.5 suffered from any manufacturing defect and/or gas leakage.
Having considered the discussion made above we are of the opinion that the complainant has miserably failed to prove that the Air Condition machine which he purchased from opposite party no.5 suffers from any manufacturing defect and/or the complainant ever lodged any complaint with the opposite party no.3 & 4 within warranty period of one year from the date of purchase with regard to alleged defect in the Air Condition machine. Document ‘C’ reveals that an estimate for repair was issued by opposite party no.4 on 01.03.2021 with regard to Air Condition machine purchased by the complainant Dipak Kumar Ghosh. Such estimate was issued after the lapse of warranty period.
Ld. Advocate for the complainant argued that in course of hearing both the parties desired to settle the dispute amicably.
Thereafter, on 20.10.2022 Ld. Advocate for the complainant on consultation with her client submitted that the complainant will agree if a sum of Rs.62,000/- (Rupees sixty two thousand) only is paid to him as full and final settlement amount. Ld. Advocate for the opposite parties submitted that they are agreeable to the proposal. In view of the above, Ld. Advocate for the complainant submits to pass the final order in terms of order XII rule 6 of the Code of Civil Procedure.
On scrutiny of the order no.18 dated 20.10.2022 it appears that complainant himself was present with his advocate. None of the authorized representative of opposite party nos.1 & 2 and opposite party no.5 were present. Opposite party nos.1 & 2 and opposite party no.5 were represented by their advocate on that date. Ld. Advocates for the opposite parties submit that they were agreeable to the proposal and the matter was referred to National Lok Adalat for final disposal. On 12.11.2022 the record was placed before the National Lok Adalat. Both the parties appeared before the National Lok Adalat and they did not agree to settle the dispute amicably.
Therefore, it is apparent on the face of the record that there was no conclusive consent of the opposite parties to settle the matter for sum of Rs.62,000/- (Rupees sixty two thousand) only as full and final settlement amount.
In such circumstances, no judgment can be passed in this case on admission in terms of order XII rule 6 of the Code of Civil Procedure.
Having considered the elaborate discussion made above, we are of the opinion that the case of the complainant is devoid of any merit.
Therefore, the case fails.
Hence, it is
O R D E R E D
that the complaint case be and the same is dismissed on contest against opposite party nos.1, 2 & 5 and ex-parte against opposite party nos.3 & 4 with cost.
Dictated by
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President
