Date: 24-06-2015
Sri Debasis Bhattacharya
This appeal is directed against the Order dated 25-06-2014 in C. C. No. 324/2013, passed by the Ld. District Forum, Unit-II, Kolkata, whereby the complaint case has been allowed on contest. Being aggrieved by and dissatisfied with the same, the OP No. 2 thereof has preferred this appeal.
Case of the Complainant, in a nutshell, is that he purchased a 1.5 ton Hitachi split AC Machine at a cost of Rs. 36,500/- from the OP No. 1 on 30-04-2013. After a lapse of 10 days, on 11-05-2013, the said machine was installed at the house of the Complainant. After installation, the Complainant observed that he was not getting proper cooling effect from the said AC machine and so, he docketed a complaint on 08-07-2013. Despite repairing, there was no improvement to the situation and so, another complaint was lodged on 11-07-2013 and since 15-07-2013, the AC machine completely stopped functioning. So, he requested the OP No. 1 to replace the defective machine, but to no avail. His legal notice dated 23-07-2013 to this effect also went in vain. Thereafter, all on a sudden, men of the OP No. 1 visited his house and restarted the machine. However, even after repairing, the machine was not performing properly. So, he informed the matter to the OP No. 1 over phone but they did not pay any heed. Hence, the case.
OP No. 1 contested the case by filing W.V., whereby they denied all the material allegations of the Complainant and stated that they are merely a seller of the AC Machine in question. Post selling, if any problem develops, it is taken care of by the service centre of the manufacturer and not by the seller of the goods. However, in order to maintain goodwill of the organization, they provide service to customers and in the instant case also, necessary support was extended to the Complainant to his satisfaction.
OP No. 2 also contested the case and filed W.V. in order to defend their case whereof they stated that after receiving complaint, they sent their men to attend to the complaint of the Complainant, who after due checking, filled the gas and restarted the machine and found that the machine was working rightly. Thereafter, another complaint was lodged by the Complainant on 11-07-2013 and their men attended to such complaint on the very same day but found that there was no problem with the said machine and it was working rightly.
The Ld. District Forum allowed the case in favour of the Complainant with a direction to the OPs to return the full amount of the AC Machine, i.e., Rs. 36,500/-. They were also hold liable to pay compensation and litigation cost to the tune of Rs. 10,000/- each and another cost of Rs. 15,000/- was imposed upon them for adopting unfair trade practice.
We are to consider in this appeal if the impugned order is in sync with factual and legal aspects of the case, or not.
Decision with reasons
Ld. Advocate for the Appellant has submitted that as and when they received complaint from the side of the Respondent No. 1, prompt action was taken from their end to attend to such complaint and every time, they left no stone unturned to satisfy the customer with their service. However, with an ulterior motive of taking another new machine, the Respondent No. 1 refused to sign the service call report on 21-08-2013. In any case, there is no problem with the machine and it is running perfectly. Under the warranty clause, there is no scope to refund the value of a product and their liability stands limited to rendering due service and replacement of defective parts. So, the impugned order is bad in law. Also, they have always rendered their wholehearted cooperation/proper service to the Respondent No. 1. So, there is no basis to hold them liable for alleged deficiency in service and imposing heavy costs thereof. The impugned order is not at all sustainable and hence, the same be set aside. In support of his contention, the Ld. Advocate has referred to a decision of the Hon’ble Supreme Court in SLP (C) Nos. 21178-21180/2009.
Ld. Advocate for the Respondent No. 1 has submitted that from the very beginning he has got a raw deal from the seller as well as the manufacturer. First they took inordinate time to install the AC machine and when the newly installed machine started performing poorly, barely within 1½ month of its installation, prompt intimation was given to the seller as well as the manufacturer, but they miserably failed to fix the problem and still now, the machine is not working properly. He purchased the machine in order to brave the unbearable heat during the summer season. However, thanks to supply of a defective machine, the very purpose of purchasing the AC got defeated. Against this backdrop, the impugned order of the Ld. District Forum is totally perfect and hardly requires any interference with the same.
Ld. Advocate for the Respondent No. 2 has submitted that the Respondent No. 1 has not submitted any ‘Expert Report’ in support of his allegation as regards manufacturing defect of the machine. Therefore, there was no scope for the Ld. District Forum to hold them jointly liable along with the Appellant to refund the cost of the AC machine together with other relief(s). It is the settled position of law that only a manufacturer can be held liable in case of manufacturing defect of a product, not the dealer. So, it is clear that the impugned order has got no legal sanctity. To defend his case, the Ld. Advocate has referred to a decision of the Hon’ble National Commission reported in 2010 (1) CPR 350 (NC), and another decision of State Commission, Delhi reported in 2003 CTJ 509 (CP) (SCDRC).
From the Field Call Reports on record, the following facts emerge:-
- The AC machine was purchased on 30-04-2013 and it was installed on 14-05-2013, i.e., after a lapse of 14 days.
- On the very same day of repairing, i.e., on 10-07-2013, the previous problem resurfaced. So, another complaint was lodged on 11-07-2013.
- Within a span of just one month, the Respondent No. 1 lodged complaint about poor cooling effect thrice, yet according to the Respondent No. 1, the problem persists.
- Within 1½ month of its purchase, the AC machine developed problem.
The AC Machine in question was having a fixed period of warranty. Therefore, it was of paramount importance that the manufacturer/seller swung into action to install it in an expeditious manner. Installing a product after a fortnight from the date of its purchase, surely, does not speak well, of the manufacture/seller, much less about their sincerity of purpose. In other words, this is a clear act of deficiency in service on the part of the manufacturer/seller.
When repeated servicing and repairs in respect of a newly purchased product prove futile to fix a problem encountered by a customer, one cannot be faltered for suspecting some inherent defect with the product, if not manufacturing defect per se in the strict sense of the term.
There can be no quarrel as to the fact that warranty clause casts a bounden duty upon the manufacturer to repair the defect to the full satisfaction of the customer and failure to do so, holds the former liable to make good the loss.
In the instant case, it appears from the Field Call reports on record that out of three servicing done in respect of the AC Machine in question, barring one occasion on 12-07-2013, the concerned service engineers had to do something or the other on both occasions (on 10-07-2013 and 21-08-2013) in their bid to make the AC Machine operate to its full potential. Needless to say, had there been no such compelling reason, it would not require any action on the part of the service engineers whenever they called in the place of the Respondent No. 1. Such fact only fortify the allegation of the Respondent No. 1 about poor cooling effect of the AC machine and the fact that the Respondent No. 1 refused to put his signature on the Field Call Report when service engineer of the Appellant visited his residence on 21-08-2013, is a clear pointer of the frustration of the Respondent No. 1 with the performance of the AC machine in question.
Although the Appellant and the Respondent No. 2 have attributed such stubborn refusal on the part of the Respondent No. 1 to sign the Field Call Report as his ulterior motive of getting a new AC machine, we find no logic to accept such theory in view of the fact that the AC machine in question itself was quite new when the first complaint was lodged with the Appellant/Respondent No. 2. More so, when there was no such possibility of getting a new AC machine of any other superior quality/high price in lieu of the concerned AC machine, there would hardly be any taker of such argument as advanced by the Appellant as well as the Respondent No. 2. Let us not forget that one explores legal recourse as a last resort when all other avenues of grievance redressal mechanism tumble down to deliver the desired result.
On the other hand, we find no reason whatsoever to suspect any other intention of the Respondent No. 1 behind lodging the complaint case over the alleged defect of the AC machine in question. In our view, a consumer is unlikely to make allegation of manufacturing defect unless one has compelling reason to do so. One purchases a product to fulfill some specific purpose. When a particular problem remains unresolved even after repeated servicing, the very purpose of having it gets defected and in case a newly purchased product fails to deliver satisfactory performance even after repeated repairing of the same – in the instant case thrice within a span of just one month (08/07/2013 to 21/08/2013) – in our view, a customer is fully justified to seek a replacement of the defective product.
Now, coming to the issue of fixing the responsibility of the Respondent No. 2, although it is argued by the Respondent No. 2 that as a seller of the product, they have no liability to compensate a customer, we cannot overlook the fact that a dealer represents a manufacturer before the customers and often plays a pivotal role in helping a customer to choose a particular brand amongst others. So, it is their responsibility to ensure that a customer gets optimum value of his hard earned money and they cannot avoid their liability in case a defective product is sold by them to a customer. In any case, the Respondent No. 2 has not placed on record copy of any such agreement whereof, they have been exonerated of all liabilities by the manufacturer over emergence of peril in respect of a product already sold.
The Hon’ble Supreme Court in the matter of Indochem Electronic vs. Addl. Collector of Customs, reported in (2006) 3 SCC 721 observed that, ‘when the deficiency began to manifest themselves it was the duty of the suppliers to attend to such deficiencies immediately and if the supplier was unable to attend to the deficiencies and malfunctioning of the system soon after installation, it would amount to "deficiency of service". Furthermore, when the deficiencies in the system continued to persist during the warranty period, including the extended period, the suppliers were rightly held to be liable for deficiency in service by the State and National Commission’. It was further held by the Hon’ble Court that ‘in the light of the specific power conferred under Section 14(1)(c) of the aforesaid Act, damages equivalent to price of goods could be awarded, despite the provisions of Section 12(3) of the Sale of Goods Act, 1930, as the provisions of the 1986 Act are in addition to and not in derogation of any other provision of law’.
In the instant case, there can hardly be any ambiguity as to the fact that the service engineers of the Appellant remained unsuccessful in their endevour to repair the AC machine effectively for which we deem it fit and proper to direct the Appellant and the Respondent No. 2 to replace the AC machine in question with a new defect free machine of similar specification with extended warranty period as given in respect of the disputed AC machine in question under similar terms and conditions. However, in case the said model is unavailable at present, the Appellant and the Respondent No. 2 shall be liable to refund the cost of AC machine in question to the Respondent No. 1. Although we have nothing to say as regard the awards given by the Ld. District Forum in respect of compensation and litigation cost, to be fair to the Appellant and the Respondent No. 2, we find no rationality behind saddling the Appellant and the Respondent No. 2 with a financial burden of Rs. 15,000/- on account of unfair trade practice, which in no way has been proved, and as such, the same is hereby struck off. Further order of punitive damage @ Rs. 200/- per day also appears to be a wrong one, and as such, the same is struck off.
In the result, the instant case succeeds in part.
Hence,
ORDERED
That the appeal be and the same is allowed in part on contest against the Respondents, but without any order as to costs. The impugned order is modified as under:-
The Appellant/OP No. 2 and the Respondent No. 2/OP No. 1 shall replace the AC Machine in question with a new defect free AC machine of similar specification and install it at their own cost and also offer comprehensive warranty of similar nature as was offered in respect of the disputed AC machine in question. However, in case AC machine of similar specification is not available at present, the Appellant/Respondent No. 2 shall refund the cost of said machine, i.e., Rs. 36,500/- to the Respondent No. 1/Complainant. They shall further be jointly and severally liable to pay compensation and litigation cost for a sum of Rs. 10,000/- each to the Respondent No. 1/Complainant. The Appellant/Respondent No. 2 shall comply with this order within 40 days from the date of this order, i.d, they would pay interest @ 9% p.a. over Rs. 36,500/- to the Respondent No. 1/Complainant from this date till compliance of this order in toto.
