Heard learned counsel for respondent No.1. None appears for the appellant.
2. Here is an appeal filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to this appeal shall be referred to with reference to their respective status before the District Forum.
3. The case of the complainant in nutshell is that the complainant has purchased a Hitachi Brand split air conditioner from OP No.2 on payment of consideration amount of Rs.35,500/-. After installation, the air conditioner unit gave problem by not giving cooling for which the complainant for first time lodged complaint on 1.4.2012. The service was attended by OP No.2 on 18th and 19th May, 2012. Complainant alleged inter alia that on 8.6.2012, the air conditioner again broke down and it was repaired by mechanic of OP No.2. Again the air conditioner unit stopped for working on 7.8.2012 and representative of the company visited on 9.8.2012 and examined the defect unit. After replacing some parts the air conditioner became workable but due to winter season, they did not use the air conditioner but again on 26.3.2013, the air conditioner unit stopped functioning. So the matter was informed to OP Nos. 1 and 2. On 29.3.2013 a mechanic was deputed by OP No.1 to repair the air conditioner unit. After examining the same, he found that less gas in compressor which resulted non-functioning of the unit. Thereafter, the air conditioner could not be set right in spite of request to OP No.1. So alleging deficiency of service on the part of the OPs, complainant filed the complaint.
4. OPs were set ex parte.
5. After hearing the complainant, the learned District Forum passed the following impugned order:-
“xxx xxx xxx
(a) Opposite parties are held deficient in rendering services to the complainant.
(b) Opposite parties shall replace the defective Split A.C. with a new one of same brand or else to pay a sum of Rs.35,500/- (rupees thirty five thousand five hundred) only, cost of the product to the complainant.
(c) Opposite parties shall pay to the complainant a sum of Rs.30,000/- (rupees thirty thousand) as compensation with interest at the rate of 9% interest per annum with effect from 31.03.2012 till realization.
(d) Opposite parties shall pay cost of the proceedings to the complainant quantified to Rs.3000/- (rupees three thousand).
(e) All the above stated directions are to be complied by the opposite parties within two months from the date of receipt of copy of this order.
(f) Office to furnish copies of the order to the parties.”
6. Although none appears for the appellant but the appeal memo shows that they have filed the appeal alleging about non-service of notice on the OPs. According to them, there is no cause of action to file the case and they have adequately attended the services. It is stated that the impugned order should be set aside by allowing the appellant to participate in the hearing.
7. Learned counsel for respondent No.1 submitted that the air conditioner was purchased and during first year, the air conditioner started trouble for which the mechanic of OPs attended but they could not remove it. So he filed the complaint case. In view of that he has filed the affidavit. However, he supports the impugned order.
8. Considered the appeal memo and the submission of learned counsel for respondent No.1 and perused the DFR including the impugned order.
9. It is the duty of the complainant to prove the negligence or deficiency of service on the part of the OPs.
10. No doubt, admittedly, complainant has purchased the air conditioner from OP No.2. It is admitted fact that just after purchase, there was trouble to the air conditioner and it was repaired by the mechanic deputed by OP Nos. 1 and 2. It is also not in dispute that the air conditioner went out of order from time to time. The job card shows that installation was made by the OPs and from time to time the air conditioner has been checked up.
11. However, there is acknowledgement filed but that was without any postal seal. So, there is reason to believe that notice has not been duly served on the appellant. When there is service attended but the OPs were not given opportunity to place their case, it is a fit case that the appeal should be allowed by remanding the matter to the learned District Forum for fresh hearing.
11. In view of above discussion, the impugned order is set aside and the matter is remanded to the learned District Forum for denovo hearing. Therefore, the appeal is allowed, the impugned order is set aside and the matter is remanded to the learned District Forum to allow the present appellant to file written version and allow both parties to adduce evidence, if any and dispose of the case within a period of 45 days from the date of receipt of this order and pass a speaking order in accordance with law. Both parties are directed to appear before the learned District Forum on 5.1.2022 to receive further instruction from it. No cost.
DFR be sent back forthwith.
Statutory amount deposited be refunded to the appellant with interest accrued thereon if any on proper identification.
Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.
