Judgment & Order dt. 13.04.2017
Being piqued at the unsatisfactory conduct and inadequate performance of the OP No. 1 Subhash Biswas, the complainant Anusuya Saha, a teacher of a higher secondary school has come up before this Forum with filing of the instant case, praying for change of the Air-Conditioner (A.C.) purchased by her from the OP No. 1 and also for compensation, amounting to more than Rs.4,00,000/-.
Fact of the case may be epitomized as follows:
The complainant as mentioned above purchased an auto A.C. machine from OP No. 1 also named above for a consideration of Rs.44,000/- with (i) a user guide manual and (ii) a warranty card. Before purchase, the OP No. 1 inspected the room of the complainant, took its measurement and told the complainant that a 1.5-ton A.C. machine will be sufficient for her room, although the complainant wanted, as goes her averment in the complaint, to purchase a 2-ton A.C. machine. The OP No.1 vouched the complainant that unless the 1.5-ton machine did not fit properly in the room, he would change the same by a 2-ton A.C. machine. A.C. machine was installed in the complainant’s room on 7.5.2015, but the said machine failed to cool the room. The complainant brought to the notice of OP No.1 the problem she faced with A.C. machine. Then the OP No.1 suggested her to buy a stabilizer, which would solve her problem. Accordingly, on 25.7.2015 one stabilizer worth of Rs.6,800/- was also purchased by the complainant from the OP No.1. But there was no improvement in the situation faced by the complainant.
The A.C. machine failed to bring about cooling atmosphere in the room of the complainant. On the other hand, the complainant’s electric bill jumped from Rs.2,000/- a quarter to 23,000/- and Rs.12,048/- in each quarter. She i.e. the complainant repeatedly knocked at the door of OP No.1, but to no effect. The OP No.1 turned deaf ear to the grievance of the complainant and that’s why the complainant filed the instant case, praying for replacement of her 1.5-ton A.C. machine by a 2-ton A.C. machine at the cost of OP No.1, Rs.31,000/- for excess useless electric bill for the period from 7.5.2015 to 11.8.2015, Rs.6800/- for useless stabilizer and Rs.4 lakh for mental pain, agony and harassment and for damage to her dignity and reputation as compensation. Hence, this case.
OP No.2 is the manufacturing company of the A.C. machine. Despite service of notice upon him, he has not turned up to contest herein and therefore, the case is heard ex-parte against him. It is the OP No.1, who has filed a written statement in the case denying all the allegations levelled against him by the complainant. According to him, he is an authorized dealer of the company and that he has no knowledge whatsoever about the problem faced by the complainant.
Upon the averment of the parties the following issues are formulated for consideration.
Issues:
- Is the case maintainable in its present form and in law?
- Has the complainant been made a victim to the deficiency in service on the part of OP No.1?
- Is the complainant entitled to get relief as prayed for?
- To what other relief / reliefs?
Evidence of the Parties:
The complainant has filed an affidavit-in-chief and he has also got herself examined as PW-1. One Kamana Das and one Ujjal Dey have also filed affidavit-in-chief and have also got themselves examined as PW-2 and PW-3. The documents admitted in evidence on behalf of the complainant are marked as Ext. Nos. 1, 2, 3, 4-series, 5 and 6-series as detailed in the list of documents kept in the record. On the other hand, the OP No. 1 S. Biswas has also filed affidavit-in-chief and also got himself examined as OPW-1. No documentary evidence whatsoever has been filed on his behalf.
DECISION WITH REASONS
Issue No.1.:
This issue has not at all figured in the argument canvassed by Ld. Lawyer appearing on behalf of the OP No.1. On perusal of the complaint, the written statement and also evidence on record, it is found that the complainant is a consumer within the meaning of C.P. Act, 1986, and that the complaint has been filed within the period of limitation. In the circumstances, complaint appears to be quite maintainable in its form and in law. Hence, this issue goes primary answered in favour of the complainant.
Issue No.2, 3 & 4.:
It is to be seen now whether the OP No.1 has become guilty of deficiency in service. It is admitted fact that the complainant purchased a 1.5-ton A.C. machine from the OP No.1. Also admitted is the fact that the complainant purchased a stabilizer worth of Rs.6,800/- from the OP No.1. According to the complainant, she wanted to purchase a 2-ton A.C. machine for her room, but OP No.1 convinced her after taking measurement of her room that a1.5-ton A.C. machine would be sufficient for her room. It has also been stated by the complainant that OP No.1 assured her to replace the 1.5-ton A.C. machine for a 2-ton A.C. machine, if the 1.5-ton A.C. machine failed to work properly. All these averments of the complainant have not been specifically denied by the OP No.1 in the written statement filed by him. Two other witnesses i.e. PW-2 & PW-3 who are neighbours of the complainant have also extended corroboration to the averment of the complainant. The complainant is 51 year old lady who is engaged in the noble profession of teaching. It is hardly believable that she has come forward before the Forum with false averment. Regard being had to these aspects, evidence of PW-1 and the absence of specific denial of the averment of the complainant by OP No.1 as pointed out above we are of the opinion that the evidence of the complainant is credible and acceptable and acting upon her evidence, we do hold that a 1.5-ton A.C. machine was installed in the room of the complainant on the advice of OP No.1 and also that OP No.1 convinced the complainant to replace the 1.5 ton A.C. machine by the 2-ton A.C. machine in case the 1.5-ton A.C. machine failed to bring about cooling atmosphere in the room of the complainant.
It is admitted fact that the OP No.1 sold 1.5-ton A.C. machine to the complainant and that he also installed the same in the room of the complainant. It is immaterial whether the OP No.1 installed it by himself or by his technician. Be that as it may, OP No.1 will be held liable, if there arises any deficiency in service by him relating to the installation of the A.C. machine in the room of the complainant. It is fully incumbent upon the OP No.1 to see whether the A.C. machine purchased by any customer will squarely fit in the room wherein it is sought to be installed. The customer is a layman and he or she is not expected to know about the potentiality of the A.C. machine, which is sold by the dealer to him or her. A dealer should verify this thing and should suggest the customer about the machine which will be fairly and properly suitable to the room of the customer. Every seller / dealer of the A.C. machine has technician and the technician is the best person to say whether a particular A.C. machine will be suitable for a room or not. To determine the adaptability, suitability and fitness of the A.C. machine is the duty of the dealer and an innocent consumer cannot be blamed in any manner if the A.C. machine fails to deliver to the consumer’s satisfaction. If a dealer does not discharge this duty sincerely and carefully, it is certainly inadequate performance of the dealer in respect of the service which he has agreed to render at the time of selling and installation of A.C. machine in the room of the consumer. Viewed the matter from this angle, it also stands quite clear that there is deficiency in service on the part of OP No.1 and for that reason the OP No.1 is required to replace the 1.5-ton A.C. machine of the complainant by a 2-ton A.C. machine.
Here is also another sort of deficiency in service on the part of OP No.1. The complainant has filed the user guide and manual which is marked as Ext.2, which contains a warranty form in its last page. This warranty certificate is completely blank and OP No.1 has not signed the certificate. Non-signing of warranty certificate has now-a-days been a fashion of almost all the dealers. They do never sign such certificate and it is perhaps for the reason that they would escape the liability whenever the opportune moment will come. Such a practice of not signing the warranty certificate by the dealer at the time of selling any article is unfair trade practice. The OP No.1 is found to become perpetrator of that unfair trade practice for which he is held liable to compensate the complainant.
Upon what have been discussed above and in view of facts and circumstances as evidenced on record, we are of the opinion that the complainant has been able to establish that OP No.1 has been guilty of deficiency in service and unfair trade practice. It is the complainant who approached the OP No.1 time and again for redressal of her grievance, but the OP No.1 did not pay any heed to her grievance. A wearer knows very well where the shoe pinches. The complainant had to sustain mental pain and physical harassment due to unsavoury treatment rendered to her by OP No.1. So, he will have to compensate the complainant on this score. The complainant has also demanded Rs.31,000/- as compensation from the OP No.1 for excess electric bill paid by her from 7.5.2015 to 11.8.2015. Two electric bills i.e. Ext. No.6/8 and Ext.6/11 have been filed by the complainant to substantiate her claim for excess payment of electricity bill. A perusal of these two bills reveals that Ext.6/8 is relating to consumption period from April, 2016 to June, 2016 and Ext. 6/11 from Jan. 2017 to March, 2017. None of these two bills relates to the period from 7.5.2015 to 11.8.2015. This being so, the complainant’s claim for excess payment of electric bill is held to be not substantiated. The complainant has also made the grievance that Rs.6,800/- which she has been made pay for purchase of stabilizer be also returned to her. The purchase of stabilizer was made by the complainant on the advice of OP No.1 and such purchase was made in order to make good the deficiency, if any, of 1.5-ton A.C. machine in its working, although that purpose has not at all been served. The purchase of stabilizer is also a part of service the OP No.1 agreed to render to the complainant at the time of sale and installation of the A.C. machine. So, this stabilizer can also be returned to the OP No.1 and the complainant is entitled to get sufficient compensation for this transaction.
In the result, the case succeeds in part.
Hence, it is
O R D E R E D
that the case be and the same is allowed on contest against OP No.1 and ex-parte against OP No. 2 with costs, who will remain jointly and severally liable to the complainant.
The OP No.1 Subhash Biswas is directed to replace the 1.5-ton Air Conditioner by a brand new 2-ton auto air conditioner of complainant’s choice, which will be free from all defects and have duly executed warranty papers and install the new air-conditioner in the complainant’s house at his own cost or to return the price of Air-Conditioner machine and stabilizer i.e. Rs.50,800/- to the complainant. In case of replacement, if made, the purchase price of the 1.5-ton A.C. machine and the stabilizer, i.e. Rs.50,800/- will be adjusted with the price of the new 2-ton A.C. machine to be supplied by the OP No.1 to the complainant, who will hand over the old A.C. machine and stabilizer to the OP No.1 and also make payment of surplus amount, if any required, after aforesaid adjustment.
The OP No.1 is also directed to pay Rs.10,000/- as compensation to the complainant for unfair trade practice and for mental agony and physical harassment of her and Rs.5,000/- as litigation cost to her. The whole direction is to be carried out by the OP No.1 within a month of this order, failing which the OP No.1 shall have to pay interest @ 12% p.a. on the amount of compensation from the date of this order till full realization.
Let a copy of this order be supplied or sent to the parties concerned free of cost.
