Order-12.
Date-05/08/2015.
In this complaint Complainant Mrinal Kanti Baidya has alleged that complainant intended to purchase a Hitachi Air Conditioner Machine as per advice of doctor to keep his wife well and safe for her illness from op no.2 but the agent of op no.2 advised the complainant to buy a Samsung Air Conditioner Machine in place of Hitachi Air Conditioner and he also stated that the Samsung Air Conditioner Machine is better than Hitachi A.C. Machine and the service and quality of Samsung AC Machine is better than Hitachi AC Machine on the basis of said advice and the complainant purchased one Samsung AC Split (Samsung ASV 125 PBBXTL/I.O. Ton Split AC) from the op no.2 on payment of Rs. 36,000/- and op no.2 issued a Cash Memo being No. BH/CM/00837/13-14 and op no.2 further stated that one year warranty provided by the manufacturer and it is written in the said Cash Memo that Standard Installation Free and it was delivered on 15.04.2013.
Further op no.2 stated the complainant to contract with op no.3 for installation of the said AC Split Machine and after installation the said AC Split Machine op no.3 claimed a sum of Rs. 3,125/- for installation charge and complainant paid the same to the op no.3 who provided a bill cum cash receipt being serial No. 34 dated 17.04.2013.Although at the time of purchasing op no.2 issued a Cash Memo where it was written that Standard Installation Free.
Further fact is that after installation of the same, complainant failed to use the AC Split Machine due to various problems and it did not make cool.So, on 20.05.2013 complainant made a complaint vide Complaint No. 8453171294 and after receiving the complain, the representatives of the op no.4 inspected the AC Machine and found that due to leakage of gas there was no cooling and for reason op no.4 advised the complainant to change the gas pipe and they did the same.But after lapse of one and half month on 09.07.2013 complainant made a further complain and on 13.07.2013 op no.4 picked up the said AC Split Machine for necessary repairing.But after doing the same, there was no development in the AC Machine and also op no.4 in their service report made a remark ‘ No cooling due to gas leakage’.
Thereafter on 23.09.2013 complainant made another complain of the said AC Machine but ultimately on 30.09.2013 op no.4 again picked up the said machine to its office for necessary repairing but no result.Further according to the advice of the engineer of op no.4 to replace the copper pipe, complainant spent a sum of Rs. 1,500/- on 05.10.2013, but the result was same and again on 21.03.2014 complainant further made a complain for taking necessary steps but ops did not pay any heed.
Complainant thus experienced a bitter and on 31.03.2014 he wrote a letter to the Manager, Samsung India Electronics Ltd. Kolkata on demanding for return the full amount of the said AC Split Machine, but op nos. 1 & 2 flatly refused the same and again on 02.04.2014 complainant sent an Advocate’s letter with a pray for refund the amount but there was no reply on the part of the op.Complainant purchased the AC Machine on 15.04.2013 and within one month the said AC Machine was found defective and complainant made several complains to the ops on various dates and ops picked up the machine but no fruitful result was made and at last ops did not pay any heed of the complainant’s letters.So, it is clear that ops sold a second hand defective AC Split Machine to the complainant.
In the light of the above circumstances, complainant’s wife suffered a lot as it was required due to his wife’s illness.So, ops negligent and deficient manner of service and also for unfair trade practice, complainant filed this complaint against the ops for getting redressal and also for compensation.
On the contrary op no.2 by filing written version has submitted that the complaint is misconceived and not maintainable in law as the transaction was purely commercial in nature and by suppressing all the material facts and truth, complainant filed this instant complaint with an object to harass the ops.
It is admitted by the ops that complainant purchased one Split AC Machine on payment of Rs. 36,000/- on 15.04.2013 of Samsung made AC Machine.But it is not admitted by the ops that the selling staff insisted the complainant to purchase the same, complainant is being satisfied with the demonstration and features of the said machine purchased the same and op no.2 is a dealer but not the manufacturer like Samsung and as per the terms of warranty a dealer is abided by the rules and regulations of the principle/manufacturing company and dealer has no role either to take the set in question or refund the price of the said machine.
Ops further submitted that they are not liable for any alleged defects or fault of the split air conditioner machine, only the manufacturer is liable and responsible for any defects.Op no.2 also submitted that after receiving complaint, immediately a technician was sent to the complainant’s house for inspection and repairing.So, Op no.2 acted diligently and in the complaint, complainant did not make any allegation against op no.2.As and when complainant intimated about any complaint immediately the same was referred to the manufacturer for necessary action.So, op no.2 has no negligence and deficiency in service.Op no.2’s staff never insisted to the complainant for purchasing Samsung AC Split Machine, but it is fact that the tax invoice which has been mentioned standard installation free but there are also mentioned ‘with angle chargeable’ and in this case op no.3 did not receive any installation charge, they only charged materials used.
Ops are also submitted that if there is any leakage of gas or cooling problem, in that case only manufacturer and its service centre will look after and repair the same, here the dealer has no role to play, dealer only can do if any complaint is received from the complainant, the same will forward to the manufacturer and it’s service centre.So, under any circumstances, op no.2 dealer is not liable for payment of any compensation or refund of the price of the AC Machine.So, all the allegations against the ops are false and fabricated and ops prayed for dismissal of this case with cost.
Decision with reasons
On proper consideration and evaluation of the entire case record, it appears that notices upon all the ops are duly served as per Postal Internet Result.But ultimately op no.2 the seller of the item (i.e. Split AC Machine) appeared and submitted written statement but other ops did not contest even after receipt of notices and in the above circumstances after considering the materials on record and also relying upon the written version of op no.2 and further the documents as produced by the parties, it is clear rather admitted by the op that split AC machine made of Samsung Company was purchased by the complainant on full payment of Rs. 36,000/- on 15.04.2013 and there was warranty for one year that means warranty will expire on 14.04.2014.But it is accepted fact that just after purchase and installation of the said split AC machine in the house of the complaiant cooling problem was detected and that was reported to the op no.2 and op no.2 referred the matter to the Service Centre of the Samsung Company and Service Centre Engineer stated that the machine needs to pick up for necessary repairing.
Thereafter the machine was repaired as no cooling due to gas leakage and as because it was within the full warranty period on 17.09.2013, it was detected no cooling due to gas leakage by the Service Centre and on 25.09.2013 it was found that the AC machine needs to be repaired.
But after repairing of the cooling system, it was placed by the Service Centre and after few days further complaint was detected and split AC machine did not function.So, second complaint was lodged to Service Centre of Samsung Company who inspected on 25.09.2013, but Service Centre asked for some replacement of the item i.e. copper pipe, gas for that reason Service Centre charged of Rs. 1,500/-.But complainant finding no other alternative paid that amount of Rs. 1,500/- which is proved from the receipt dated 05.10.2014.But even after that the said AC machine did not function for which complainant again made complaint on 21.03.2014 to take necessary steps.But ops did not pay any heed which is proved.
Fact remains that there is a full warranty in respect of the said machine.But since purchase, complainant has been facing trouble to use the same and in fact one after another problem was detected and not only that gas pipe was changed, copper pipe was changed and other parts were also changed even then the said split AC machine did not give proper service, though complainant invested of Rs. 36,000/- for purchasing the same on 15.04.2013, but did not get any chance to enjoy the cool in hot weather.
Now the question is whether there was any fault on the part of the ops for such non-functioning of the AC machine in the house of the complainant, even after repeated repairing by the Service Centre.In this regard we have gathered from the written version of the seller op no.2 that admittedly complainant reported about defect one after another for non-functioning of the split AC machine to the op no.2 and in all cases op no.2 directed the complainant to go to the Service Centre of the Samsung Company.Complainant went there on 3 or 4 occasions and Service Centre’s engineer went to the house of the complainant and it was repaired by them and repairing was done by the Service Centre of the Samsung Company on 3 occasions by replacing gas pipe, copper pipe and other materials.But even then the said split AC machine did not work and did not give cool breedge during hot weather and on last occasion when complainant reported that matter to the op no.2 and other ops, they did not pay any heed and they stated to the complainant that for repairing, repairing charge shall be paid.
But truth is that it was purchased on 15.04.2013, thereafter on 20.05.2013, 09.07.2013, 13.07.2013, 23.09.2013 and 21.03.2014, one after another complaint was made by the complainant about non-functioning of the split AC machine, but on 3 occasions they rendered service but even then they did not made the said split AC machine fit for giving cool breedge and truth is that in the meantime three parts i.e. gas pipe, copper pipe and some other materials are changed by the op.But the complainant was compelled to pay Rs. 1,500/- for purchasing the copper pipe during warranty period.
But in fact at that time full warranty period was in existence because warranty expired on 14.04.2014.But for copper pipe Rs. 1,500/- was taken by the op Service Centre on 15.10.2013.But as per warranty clause, there was no scope on the part of the Service Centre to charge any fee for replacement of any parts of the said split AC machine but that has not been done, that means as per specific direction, Service Centre did not give proper service for giving replacement of the copper pipe at free of cost and after that ops did not give any service though warranty period was in existence that means all the ops did not give proper service and they acted in negligent and deficient manner and at the same time we have gathered that a new and fresh split AC machine failed to give proper cool breedge during hot season to the complainant, when one after another fault was detected within the warranty period and in respect of 5 occasions, different types of defects were detected.But in 3rd occasions it was repaired but even after that the said split AC machine failed to give cool and failed to function.Then it is clear that there was internal defect in the said split AC machine at the time of sale and defective machine or second hand machine was sold by the op no.2 is well proved when Samsung Company even after service of the notice of complaint, they did not appear to deny the allegations.
In view of the above materials and findings, we are convinced to hold that no doubt the ops acted in a very illegal manner and as seller op no.2 is liable in view of the fact that op no.2 is a company who is not the dealer because op no.2 has failed to produce any document to show that he is dealer of Samsung Company.But considering the status of the op no.2 seller of the split AC machine we have gathered that op no.2 is a company, he purchased a bulk amount of AC machine from the Samsung or other companies.But he is not a dealer, if he would be a dealer in the receipt it would be properly ventilated that he is dealer of the Samsung Company.But we are aware of the fact that the present op always purchased a bulk amount of products of different companies and sell it.So, op no.2 cannot claim that he is a dealer of Samsung Company in respect of split AC machine or other items.But he is a company who is selling the articles after purchasing bulk of goods of split AC machine from the Samsung Company.
So, op no.2 is also responsible for that for which relying upon the judgement as submitted by the op no.2 as referred 2012 (3) CPR 540 NC is not applicable in this case.But we have gathered that Service Centre and the Samsung Company who are op nos. 1 and 4 have not appeared to deny all the allegations because Service Centre already charged Rs. 1,500/- against replacement of copper pipe and that is within the warranty period and no doubt that has been done as per instruction of the Samsung Company.
So, it is proved that they have adopted an unfair practice in respect of selling their manufactured items like split AC machine etc. to the customer and in this case it is proved that there is negligence and deficiency on the part of the op nos.1, 2 and 4 and they are jointly liable for replacement of the said item for removing the present defective item and we have confirmed that it is a defective machine when just after purchase one after another defect was detected and cooling process of the said machine was/is not functioning which is proved from the fact that op no.4 the Service Centre admitted by removed the said defective item but failed to that.On 4th occasion they changed copper pipe and took Rs. 1,500/- from the complainant.But even after that the cooling system was not restored and ultimately Service Centre refused to take any liability that means Service Centre engineers was satisfied that it is non-repairable for which they are very silent including the company is very silent, they got chance by getting a notice of this Forum.
Relying upon the above findings, we are convinced that op nos. 1, 2 and 4 are jointly liable for not rendering proper service and their act is nothing but negligent and deficient manner of service and moreover they did not act as per warranty clause, though there is full warranty in respect of the said split AC machine and truth is that complainant has been harassed by the op nos. 1, 2 & 4 all along.At the same time the Samsung Company op no.1 and Service Centre op no.4 did not discharge their services and responsibilities as Service Provider as manufacturer and Service Centre of the manufactured item.So, company committed negligence and deficiency in all respect and they have also not acted as per warranty clause for which the complainant has been harassed and he has failed to get proper service of the split AC machine during hot season and it has become a rejected machine lying in his house, though he invested Rs. 36,000/-.
In the above premises we are convinced to hold that complainant has been able to prove all the allegations against op nos. 1, 2 & 4 beyond any manner of doubt.But anyhow op no.2 has tried to show that he is dealer.But it is completely false and op no.2 failed to prove that he is a dealer of op no.1, but he purchases bulk goods from Samsung Company but he is not a dealer because he is a company also.So, op no.2 is also equally responsible for that act of op nos. 1, 2 & 4 tantamounts to unfair trade practice.
In the above reasons and findings, the present complaint succeeds.
Hence, it is
ORDERED
That the complaint be and the same is allowed on contest against op nos. 2 with cost of Rs. 2,000/- and same is also allowed exparte against op nos. 1 and 4 with cost of Rs. 1,000/- each.But the complaint against op no.3 is dismissed without any cost.
Accordingly op nos. 1, 2 & 4 are jointly liable for refunding the entire amount of Rs. 36,000/- the purchase price of the split AC machine within one month from the date of this order along with compensation of Rs. 5,000/- each to be paid by op nos. 1, 2 & 4 and same shall also be paid within one month from the date of this order and if ops fail to comply the order within that stipulated time, in that case, penal interest at the rate of Rs. 100/- per day shall be assessed till full satisfaction of the decree by the op nos. 1, 2 & 4 and if it is collected, it shall be deposited to this Forum.
For adopting unfair trade practice by the op nos. 1, 2 & 4 they are directed to deposit penal damages of Rs. 5,000/- each to this Forum and it is imposed to protect the interest of the consumer from being deceived by the op nos. 1, 2 & 4 in the market in such a manner and same shall be deposited to this Forum.
Op nos. 1, 2 & 4 are directed to comply the order within stipulated time failing which penal action shall be started u/s 25/27 of C.P. Act against them and for that reason further penalty and fine may be imposed.
