Order dictated by:

Ms. Rachna Arora Member

1.       Vinkal Vohra complainant has brought the instant complaint under section 12 & 13  of the Consumer Protection Act, 1986 on the allegations that  complainant has purchased an Air Conditioner from opposite party No.1 vide Retail Invoice No. 8627 on 22.2.2016 worth Rs. 28000/-. The complainant installed the said AC in his house for his personal/domestic use. The employee of the company installed the said AC on the same day. In the month of Sept.,2016, the said AC started creating problems in its functioning as it failed to get cool the room and not worked properly. The complainant lodged a complaint with opposite party No.2  on the same day . On the very next day, the employee of the said company came to the house of the complainant and checked the AC and repaired the same. But since then the said AC could not function properly. Thereafter the complainant again lodged complaint with opposite party No.2 on 22.9.2016 regarding the problem being occurred to it . The employee of the opposite party No.2 simply checked the AC and did not get repaired it.  Thereafter complainant again lodged complaint with opposite party No.2 on 1.1.2017 and 9.1.2017 but this time no one came to check the said AC. The complainant made several visits to the opposite party No.1, but they failed to provide any service to the complainant. Finally on 18.2.2016 complainant visited opposite party No.1 and requested them to repair the said AC, but the concerned officials of opposite party No.1 started making lame excuses and demanding more time for the repair of the AC. The complainant again requested the officials of opposite party No.1  but  the officials of the opposite party No.1 delayed the matter on one pretext or the other . The complainant has sought for the following reliefs vide instant complaint :-

(a)     Opposite parties be directed to pay compensation to the tune of Rs. 50000/- for causing mentally, physically and monetary loss to the complainant ;

(b)     Opposite parties be also directed to refund the consideration of AC i.e. Rs. 28000/-.

Hence, this complaint.

2.       Upon notice, opposite party No.2 appeared and filed written version in which it was submitted that the AC in question has no defect and it is perfectly working. The installation of the AC is not at proper place as their wall immediately behind the AC in question  due to which AC does not get proper ventilation as required for its proper functioning. Due to lack of proper ventilation the AC does not give desired cooling. Thus there is no defect in AC and same is perfectly working, gas pressure was also proper when service engineer visited the premises of the complainant on 22.9.2016 and thoroughly checked the AC in question. But the complainant was adamant for replacement of the unit without any reason or justification. There is no deficiency of service or breach of contract on the part of answering opposite party. The answering opposite party or  its service centre never denied after sale service and they are still ready to provide services to the complainant but on chargeable basis as the AC in question is out of warranty period. There is no inherent defect in the AC nor there is any deficiency in service on the part of the opposite party.Moreover the complaint has been filed after the expiry of warranty period of one year which was expired on 21.2.2017. The service engineer from the service centre of answering opposite party has always attended the complaint lodged by the complainant but there was no problem in the working of AC . The complainant has neither alleged any specific irreparable manufacturing defect and inferior quality of the specific part of the product nor filed any documentary evidence  i.e. authenticated report of expert and qualified person of central approval laboratories. In the absence of any independent expert evidence the claim cannot be allowed. The complainant claimed the said AC to be suffering from defects, therefore, it is the legal duty under the discharge of burden, upon the complainant  to establish  the same by technical expert report. But no such report has been adduced by the complainant . While denying and controverting other allegations, dismissal of complaint was prayed.

3.       Opposite party No.1 did not opt to put in appearance despite service of notice, as such it was ordered to be proceeded against ex-parte.

4.       In his bid to prove the case Sh.Sanjay Vohra,Adv.counsel for the complainant tendered into evidence affidavit of the complainant Ex.C-1, copy of bill Ex.C-2, photographs Ex.C-3 and Ex.C-4 and closed the evidence on behalf of the complainant.

5.       To rebut the aforesaid evidence Sh.Rahul Nagpal,Branch Service Manager tendered into evidence his duly sworn affidavit Ex.OP2/1 and closed the evidence on behalf of opposite party No.2.

6.       We have heard the ld.counsel for the parties and have carefully gone through the record on the file.

7.       From the record i.e. pleadings of the parties and the evidence produced on record by both the parties, it is clear that  complainant purchased an Air Conditioner from opposite party No.1 vide Retail Invoice No. 8627 on 22.2.2016 worth Rs. 28000/-, copy of which is Ex.C-2 on record. According to the complainant the  said AC has been got installed by the complainant in his house for his personal/domestic use .  It was the case of the complainant that in the month of Sept.,2016, the said AC started creating problems in its functioning as it failed to get cool the room and not worked properly. In this regard the complainant lodged a complaint with opposite party No.2  on the same day . On the very next day, the employee of the said company came to the house of the complainant and checked the AC and repaired the same. But since then the said AC could not function properly. Thereafter the complainant again lodged complaint with opposite party No.2 on 22.9.2016 regarding the problem being occurred to it . The employee of the opposite party No.2 simply checked the AC and did not get repaired it.  Thereafter complainant again lodged complaint with opposite party No.2 on 1.1.2017 and 9.1.2017 but this time no one came to check the said AC. The complainant made several visits to the opposite party No.1, but they failed to provide any service to the complainant. Finally on 18.2.2016 complainant visited opposite party No.1 and requested them to repair the said AC, but the concerned officials of opposite party No.1 started making lame excuses and demanding more time for the repair of the AC. The complainant again requested the officials of opposite party No.1  but  the officials of the opposite party No.1 delayed the matter on one pretext or the other .

8.       Whereas case of opposite party No.2 is that AC in question has no defect and it is working perfectly.  However,the installation of the AC is not at proper place as their wall immediately behind the AC in question  due to which AC does not get proper ventilation as required for its proper functioning. Due to lack of proper ventilation the AC does not give desired cooling. Thus there is no defect in AC and same is perfectly working, gas pressure was also proper when service engineer visited the premises of the complainant on 22.9.2016 and thoroughly checked the AC in question. But the complainant was adamant for replacement of the unit without any reason or justification. Ld.counsel for the opposite party submitted that in these circumstances , there is no deficiency of service on the part of the opposite party qua the complainant.

9.       From the entire above discussion, we have come to the conclusion that complainant purchased the Air conditioner in question from opposite party No.1  vide invoice No. 8627 Ex.C-2 for a sum of Rs. 28000/-. As per complainant’s version, the AC was giving problem of low cooling/improper cooling . In this regard complainant lodged many complaints i.e. on 22.9.2016, 1.1.2017 as well as on 9.1.2017. But the complainant has not produced any evidence on record to prove that the complainant has ever lodged any complaint with the opposite party as there is neither any complaint or email written to the opposite party nor there is any job sheet to be issued to the complainant by the opposite party except his own bald statement through affidavit Ex.C-1 to the effect that he lodged such complaints with the opposite parties. However, the opposite party in its written version has submitted that when the service engineer visited the premises of the complainant in the month of September 2016 on 22.9.2016, who thoroughly checked the AC in question and found that there was no defect in AC. But, however the complainant was adamant for the replacement of the AC. So it is proved on record by the opposite party itself that the complainant has approached the opposite party for removal of defect in the AC within the warranty period.  But, however, the complainant could not produce any evidence in the form of statement of any mechanic or engineer expert to prove that there is any manufacturing or inherent defect in the AC in question, which is not repairable. Reliance in this connection has been placed on Sukhwinder Singh Vs. Classic Automobile Shastri Nagar, Jharkhand 2012 NCJ 917(NC) wherein it has been laid down that to prove the manufacturing defect in vehicle a report of expert is essential or some other evidence showing manufacturing defect should have been adduced . Mere fact that the product was taken to the service station for one and two times does not ipso facto proves the manufacturing defect, but the complainant has filed the complaint with malafide intentions to extract money from the replying opposite parties by dragging them in this frivolous and baseless litigation. So the request of the complainant, for the replacement of the AC in question is not tenable.

10.     However, as the complainant has filed the present complaint within the warranty period of one year i.e. however one day before the expiry date. So this complaint is disposed of with the direction to the opposite parties to send proper mechanic/service engineer at the premises of the complainant to repair the AC of the complainant and  make it fully functional without any defect, to the satisfaction of the complainant  without charging any amount/fee from the complainant within one month from the date of receipt of copy of this order . In case of failure to remove the defect in the AC, the opposite parties shall replace the product i.e. AC in question of the same make or model . Keeping in view the peculiar circumstances of the case parties are left to bear their own costs. Copies of the order be furnished to the parties free of cost. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.

Announced in Open Forum

Dated : 26.7.2017