Per :- Mr. V. G. Joshi, Member Place : Bandra -*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*-*- ::::: JUDGMENT ::::: Facts giving rise to this complaint may be stated, in brief, as follows :- The Complainant is a consumer under section-2(1)(d) of Consumer Protection Act, 1986. 2 The Opposite party no.1 is a manufacturer and a service provider. The Opposite party no.2 is a dealer and also a service provider under section-2(1)(g) and (r) of Consumer Protection Act, 1986. 3 The Complainant states that he purchased two widow air conditioners bearing model no.12FKA /XTL, serial no.A-115PZBP 401074W and A-115PZBP 401045D vide Challan no.5519, dated, 01.05.2007 from the Opposite party no.2–a dealer for a total consideration of Rs.28,800/-. 4 The Complainant submits that the said air conditioners were purchased under the exchange policy introduced by the Opposite party no.2. The Complainant has surrender two old air conditioners belong to him under the exchange offer where by the Opposite party no.2 has reduced the total price by Rs.5,000/-. Hence, the total consideration paid by the Complainant was amounting into Rs.23,800/-. The tax invoice, dated, 09.05.2007, produced by the Complainant on records showing the total amount paid towards the said air conditioners was Rs.23,800/-. 5 According to the Complainant, on installation, he found that the touch pad of the air conditioner machine bearing no.A-115PZBP 401045D was not working. He immediately lodged the complaint and the Opposite party no.1 replaced the touch pad and made the said air conditioner in working condition. Thereafter, the Complainant has complaint about the non working of the air conditioner A-115PZBP 401074W. The Opposite party deputed their engineer to rectify the defect in the said air conditioners. 6 The Complainant claims that the both air conditioner since having manufacturing defects, the Opposite parties no.1 and 2 should refund amount paid by him towards the purchase of the said air conditioners. 7 The Complainant has made repeated correspondence with the Opposite party no.1 and 2 for refund of costs of air conditioners. But due to poor response from the Opposite parties he has filed this complaint and prayed for the following reliefs : A refund of cost of defective air conditioners of two numbers Rs.28,800/-, B refund of installation charges of air conditioners Machines Rs. 600/- C interest on Rs.28,800/-, @12%p.a. for 18 months Rs. 5,184/- D the compensation for mental agony and harassment Rs.10,000/- E costs of proceedings Rs. 850/- ============ Total Rs.45,434/- ============ 8 The Opposite party no.1 has filed its written version and contested the complaint whereas the Opposite party no.2 has not filed its written statement hence set ex-parte. 9 The Opposite party no.1 denied all the allegations made by the Complainant and states that the complaint is false, frivolous and baseless. Hence, the complaint is not maintainable and liable to be dismissed with costs. 10 The Opposite party no.1 states that the engineer was promptly deputed to rectify the defects of both the machines. The touch pad which was not working was replaced with new one and the air conditioner machine was brought to the working condition. 11 As regards the second machine bearing serial no.A-115PZBP 401074W, the Opposite party states that their engineer had attendant the complaint immediately but the Complainant was not ready to repair the same. 12 The Opposite party no.1 submits that they are ready to refund Rs.23,800/-, only which is mentioned in the tax invoice, dated, 09.05.2007. They are not ready to refund Rs.5,000/- collected by the Opposite party no.2 and installation charges Rs.600/- as the installation was done through the private party. 13 According to the Opposite party no.1, since, the exchange policy was independently open and run by the Opposite party no.2 only at their own risk and costs, they have nothing to do with the said exchange offer. Also they are ready to provide the service towards repair to the Complainant as per terms and conditions of the warranty, within the warranty period but the Complainant is not ready to take this service. The Complainant, since inception demanding refund of costs of air conditioner. 14 Despite notice, the Opposite party no.2 remained absent and was set ex-parte as per section-13(2)(ii) of Consumer Protection Act, 1986. 15 We heard the Complainant and the Learned Advocate of the Opposite party no.1 extensively. We read the complaint and written statement and argument filed by the Opposite party no.1 as well as the written argument filed by the Complainant. We perused the documents filed by both the parties, carefully. Following points emerged to our considerations and our findings thereon are as follows :- Nos. | Points | Findings | 1 | Whether the Complainant is entitled to receive the refund of costs paid towards the two air conditioners /machines ? | Yes | 2 | Whether the Complainant is entitled for interest and compensation ? | No | 3 | What order ? | The complaint is partly allowed. |
REASONS FOR FINDINGS :- 16 As regards the point no.1, the Opposite party no.1 admitted in their written statement, paragraph no.10 filed on 11.11.2008 that they are ready to refund Rs.23,800/- as per tax invoice, dated, 09.05.2007. Since, the Opposite party no.1- the manufacturer is willing to refund the costs price of the air conditioners, we have no hesitation to award the Complainant, t he refund of cost of two air conditioners, to the tune of Rs.23,800/- only. 17 The Complainant has not bought any expert opinion on record showing the manufacturing defects in both the air conditioners. The customer service record cards, dated, 09.01.2008 and 19.01.2008 are clearly reveals the intension of the Complainant, particularly the customer service card, dated, 19.01.2008 reads as follows :- “Defect detected by engineer :- switch memory defective. Repair report by engineer :- customer not ready to repair, So call closed. 18 The intention of the Complainant, since beginning was to collect refund of cost of air conditioners. Hence, he has disallowed the repair of the said air conditioners. In view of the averment made by the Complainant and written statement filed by the Opposite party no.1, we do not find any harassment or mental agony caused to the Complainant. Hence, there is no question of awarding the Complainant, the compensation. Also, we do not inclined to award interest on the amount paid towards the costs of the air conditioners because the Opposite party no.1 was ready to refund of amount as per tax invoice but the Complainant did not accede to the said proposal and hence the Complainant is not entitled to claim any interest on the aforesaid amount. 19 Rs.600/- paid towards the cost of the installations charges are also not refundable by the Opposite party, because there is no deficiency in service vis-à-vis installation. 20 The Opposite party no.1, in its written statement paragraph no.10 seventh line from the bottom has made a statement that the Opposite party no.2 is ready to refund amount mentioned in tax invoice. On perusal of tax invoice, dated, 09/05/2007, it is seen that it was for Rs.23,800/-. Thus on the basis of offer in the written version, the Opposite party no.1 is liable to refund Rs.23,800/- to the Complainant. Subject to the Complainant returning to those air conditioners purchased from the Opposite party no.1. 21 So far as the op2 is concerned, he received two second hand air conditioners from the Complainant under buy back policy and deducted Rs.5,000/- from the gross price of Rs.28,500/-. Since the original position is to be restored as offered by the Opposite party no.1, the Opposite party no.2 will have to refund Rs.5,000/- to the Complainant. He has already received two old second hand air conditioners from the Complainant. 22 During the course of the hearing of the argument, the Complainant stated that he has bought two another new air conditioners. Naturally, he would be interested in refund of amount and to part with these two pieces which might be lying idle with him. In view of the above, we proceed to pass the following order. ::::: ORDER ::::: (1) The complaint is partly allowed. (2) The Opposite party no.1 is directed to refund Rs.23,800/- to the Complainant towards the costs of aforesaid both the air conditioners only after receipt of the said air conditioners from the Complainant bearing model no.12FKA /XTL, serial no.A-115PZBP401074W and A-115PZBP401045D. (3) The Opposite party no.2 is directed to refund Rs.5,000/- to the Complainant towards the two old air conditioners accepted in exchange offer. (4) The Opposite party no.1 shall comply with this order within 60 days from the date of receipts of this order. (5) Certifies copies of this order to be furnished to both the parties, free of costs, as per rule.
| | [HONABLE MRS. Mrs.DEEPA BIDNURKAR] Member[HONABLE MR. Mr. J. L. Deshpande] PRESIDENT[HONABLE MR. MR.V.G.JOSHI] Member | | 
