Sri Shyamal Gupta, Member

This Appeal arises out of the Order dated 03-07-2015 passed by the Ld. District Forum, North 24 Parganas in C.C. No. 446/2014.  The complaint case being allowed by the Ld. District Forum, feeling aggrieved and dissatisfied with the same, OPs thereof have filed this Appeal.

Case of the Complainant, in brief, is that, he intended to purchase one AC Machine of 1 Ton capacity and for this purpose, he placed an order with the Salt Lake branch office of the OPs.  Accordingly, one Mr. Rajib Sarkar, Salesman visited his flat.  After necessary survey, said Mr. Sarkar entered another room of the Complainant where another AC Machine of 1.5 ton capacity was already installed.  It is claimed that said Sri Sarkar advised him to install an AC Machine of 1 Ton capacity in place of the said AC Machine, thereby reduce his energy bill as according to Sri Sarkar 1 Ton would suffice his purpose.  Upon his insistence, the Complainant agreed to install two AC Machines of 1 Ton capacity and accordingly, placed necessary orders with the OP No. 2. However, post installation of the said AC machines, the Complainant noticed that he was not getting adequate cooling effect in the room where previously AC Machine of 1.5 Ton capacity was installed.  Against his complaint, service personnel of the OPs visited his residence.  After inspecting the room, they opined that for that particular room, he would require 1.5 Ton AC Machine.  The Complainant, therefore, again reported the matter to the OPs and requested them to replace the 1 Ton AC Machine with 1.5 Ton AC Machine and agreed to bear the differential amount.  However, the OPs did not pay any heed to his request, hence the lis.

Case of the OPs, on the other hand, is that as per consumer demand, they supply AC machines.  In this case too, the Complainant decided to purchase two nos. AC Machines of 1 Ton capacity on his own accord.  Further case of these OPs is that after installation of the machines on 22-05-2013, due demonstration was given to the Complainant and the latter did not raise any objection at that time.  Further, on receipt of call, their service technician visited the residence of the Complainant on 06-06-2013 to check up the performance of the AC Machine and gave further demonstration and at that time also the Complainant did not make any complaint.  Stating that, since the AC machine installed at the residence of the Complainant is not suffering from any sort of defect; it cannot be coerced to meet the illegal demand of the Complainant.  Accordingly, the OPs prayed for dismissal of the complaint.

The moot point for determination is whether the impugned Order suffers from any sort of jurisdictional error or not.

Decision with reasons

The dispute, as it emerges, revolves around alleged ill-advice being given by one Mr. Rajib Sarkar, Sales Executive of the Appellant No. 1 to the Respondent pertaining to the capacity of the AC Machine. 

It is the case of the Respondent that he was advised by Mr. Sarkar to install an AC Machine of 1 Ton capacity in place of the 1.5 Ton AC Machine already installed there, as according to him, it would not only fulfill Complainant’s purpose, but would also reduce his energy bill. 

On the other hand, it is claimed by the Appellants that live demo in respect of the AC Machines was given to the Respondent on 22-05-2013 and again on 06-06-2013, but on neither occasion, the Respondent made any adverse remark on the job sheets signed personally by him.

In this regard, we find that the Appellants have not placed on record the job sheet of 22-.05-2013.  On the other hand, perusal of the job sheet dated 06-06-2013 reveals that the unsatisfactory cooling effect was clearly noted down therein by the Respondent.  Thus, we do not come across any conclusive evidence on record to the effect that the Respondent was ever satisfied with the performance of the AC machine in question.

Further, it is also not in dispute that there was already one 1.5 Ton AC Machine installed in running condition.  That being so, unless any such advice was indeed given by Mr. Sarkar, as alleged, there was hardly any reason for the Respondent to go for a new AC machine replacing the old one.  In this regard, we find that although the Respondent specifically named Mr. Sarkar in his repeated complaint letters, the Appellant did not deem it necessary to show cause Mr. Sarkar to unearth the truth. 

Be that as it may, from the reply letter dated 23-10-2013 of the Appellant No. 1 to the Ld. Counsel of the Respondent it appears that the Appellants admitted the fact that after discussing the matter with the concerned Sales Executive of the Appellant No. 1, the Respondent finally decided to purchase two nos. 1 Ton AC Machines. 

Therefore, it is quite discernable from the admission of the Appellant No. 1 that due discussion regarding purchase of AC machines did take place in between the Respondent and said Mr. Rajib Sarkar prior to placing necessary orders upon the Appellant No. 1. 

In such a circumstances, when said Sales Executive personally inspected the said room, we fail to understand, as to why Mr. Sarkar did not caution the Respondent about the inadequacy of the 1 Ton capacity AC Machine vis-à-vis the size of room. As a representative of the Company, its authorized Executives cannot abdicate their responsibility to render proper guidance to prospective customers, who as a layman repose their utmost/gullible faith into the sincerity of purpose of such representatives.

That being so, being the employer, to our mind, the Appellants cannot shrug off their vicarious liability for the ill-advice given to the Respondent by Mr. Rajib Sarkar, Sales Executive of the Appellant No. 1.

In the light of our foregoing discussion, by and large, we see eye to eye with the impugned Order.  However, in the facts and circumstances of the case, the cost imposed upon the Appellants @ Rs. 100/- per day appears to be too harsh and accordingly, the same is hereby struck off.  Moreover, it also appears that the Ld. District Forum has directed to replace both the AC Machines.  However, since the Respondent has grievance against one AC Machine, the Appellants should replace that particular AC Machine only.

Accordingly, the Appeal succeeds in part.

Hence,

O R D E R E D

That A/891/2015 be and the same is allowed in part on contest against the Respondent.  The impugned order is modified as under:-

“That the complaint be and the same is allowed on contest against both the Opposite Parties with cost for a sum of Rs. 3,000/-, payable jointly and severally by the Opposite Parties to the Complainant.

The Opposite Parties are directed to replace the disputed 1 Ton AC Machine with 1.5 Ton capacity AC Machine within 15 days of receipt of differential amount from the Complainant”.