Dt. of filing- 24/10/2017
Dt. of Judgement- 11/06/2019
Mrs. Sashi Kala Basu, Hon’ble President.
This complaint is filed by Shri Sudhakar Paul under Section 12 of the Consumer Protection Act against the Opposite Parties namely Sreema Electronics ( South ) and Voltas Ltd. alleging deficiency in service on their part.
Case of the complainant in short is that he purchased one A.C. Voltas 1.5 ton 5 star model No. 185 ZYJA from the OP No.1 on payment of Rs. 37,500/- on 12.04.2017. But since after the installation several defects such as defect in installation, no cooling and water leakage was found. So, complainant reported the matter to the OP repeatedly but inspite of their inspection, the A.C. was not working. Ultimately complainant moved before the Consumer Grievance Cell but as the matter was not settled, he filed the present complaint for directing the OPs to refund the money paid by him for A.C. machine along with interest and also to pay the compensation towards the harassment.
Complainant has annexed with the complaint petition, Invoice showing purchase of A.C. machine on 12.04.2017, Other receipts, guarantee registration card showing 5 years compressor warrantee, copy of service report regarding installation and the copy of the petition filed before the Grievance Cell.
OP No.2 has contested the case by filing the written version disputing and denying the allegations contending inter alia that the machine was installed by local technicians and on inspection it was found that because of the wrong installation the gas inside the machine had been leaked out. So, the company shall not be able to honour the entitlement if the air conditioner is improperly installed. OP No. 2 however had offered proper rectification and servicing of A.C. machine free of cost but the complainant did not agree to the said request.
OP No.1 did not take any step inspite of the service of the notice and thus the case proceeded exarte against the OP No.1. During the course of the evidence, complainant and the OP no. 2 have adduced their evidence followed by filing the questionnaire and reply thereto. Ultimately argument has been advanced. Parties have also filed the written notes of argument.
So following points require determination:
1. Whether there has been deficiency in rendering service on the part of the OPs ?
2. Whether the complainant is entitled to the relief as prayed for ?
Point Nos. 1 & 2 : Both these points are taken up together for discussion for the sake of convenience and in order to avoid the repetition.
Complainant has filed document showing purchase of Voltas Air conditioner Model No. 185 ZYJA on 12.04.2017 on payment of Rs. 37,500/-. Purchase of Voltas air conditioner machine by the complainant has not been disputed and denied by the contesting OP. It is also not in dispute that there was 5 years warranty. Complainant has also filed the guarantee registration card of OP No.2 wherefrom it appears that there was a 5 years compressor warrantee service. As per warranty Voltas undertook to repair or replace the compressor of the air conditioner due to mal-functioning during normal usages in the first five years. It is apparent from the service report issued by Voltas/authorised service partner that on inspection of A.C. Machine on 26.04.2017 it was found that there was water problem remote display was not working . So, apparently there was defect in the air conditioner machine. There is also mentioned in the said service report that it was not cooling. According to OP No.2 that due to wrong installation of A. C. Machine, said defect occurred. But the same is not reflected by the technicians in the said service report. However, even accepting the contention of OP No.2 that there was improper installation then also complainant was entitled to repair or rectify or replace the said A.C. machine as It cannot be contended that the installation was done by the complainant himself. Installation is done either by the men of OP No.1 or OP No.2. It is nowhere stated by the OP No.2 either on the written version or through the evidence that the OP No.1 was not authorised to sell the said A.C. machine. So in such a situation, as inspite of repeated complaints the A.C. machine was not corrected, complainant is entitled to replacement of the A.C. machine and the same has to be installed by the men of OP No.2. However, so far as prayer of the complainant that he is entitled to refund of money with interest and penalty charge, same cannot be allowed as this Forum cannot re-write the contract or substitute the terms which were not intended by the parties. In the case of Vikram Green Tech (I) Ltd. & Anr. –vs. - New india Assurance Co. Ltd., it has been held by the Hon’ble Apex Court “that the Court while construing the terms of the policy is not expected to venture into extra liberalism that may result in re-writing contract or substituting terms which are not intended by the parties. The insured cannot claim anything more than what is covered by the insurance policy”.
Complainant has not stated in the petition of complaint the amount towards compensation for alleged harassment. However, as we have already observed that he is entitled to the replacement of the A.C. machine, direction to pay compensation would not be justified. However, complainant is entitled to the litigation cost as he has been compelled to file the present complaint.
These points are answered accordingly.
Hence,
ORDERED
CC/590/2017 is allowed on contest against the OP No. 2 and exparte against OP No.1. Opposite Parties are directed to replace the A.C. Machine supplied to the complainant being Voltas Air Conditioner Model No. 185 ZYJA with a new A.C. Machine of the same Model within three months from the date of this order. They are further directed to pay Rs. 12,000/- towards the litigation cost within the aforesaid period in default the sum shall carry interest @ 9% p.a. till realisation.
