Date of filing : 09/10/2018
Date of Judgment: 18.11.2021
Mrs. Sashi Kala Basu, Hon’ble President.
This consumer complaint is filed by the complainant namely Smt. Jhuma Bhattacharyya under Section 12 of the C.P Act , 1986 against the opposite parties ( referred to as O.Ps hereinafter) namely 1) Jhonson Controls – Hitachi Air Conditioning India Limited of 33, Kabir Road, P.S Tollygunge, 2) K B-22, 8th Floor, Bhakta Tower, Salt Lake, 3) BE-10/2, Jyangra, D.B Nagar, 4) Manager- Service Operations, Johnson Controls-Hitachi Air Conditioning India Limited and 5) Capital Electronics And Appliances Ltd., alleging deficiency in service on their part.
The case of the complainant, in short, is that she purchased one split 1.5 ton Inverter A.C machine of brand Hitachi from O.P-5 on 23.5.2017 on payment of a total sum of Rs.47,700/- . But after purchase of the said A.C machine it started giving problem. So, she complained to the O.Ps who sent their technician after much persuasion. But, even thereafter the disturbance remained and machine was totally out of order. The complainant sent many letters through E-mail agitating the grievances to the O.Ps. But in reply the O.Ps through their letter dated 16.11.2017 informed that the PCB was faulty and the A.C machine would be replaced ,if any second failure comes within the warranty period. The complainant could understand that there was some manufacturing defects and so she asked for replacement of the A.C machine . But the O.Ps paid no heed and thus, she moved before the Consumer Affairs Department for redressal of her grievances. But as the mediation failed before the Consumer Affairs Department, the present complaint is filed by the complainant ,praying for directing the O.Ps to replace the A.C machine, to pay compensation to the tune of Rs.30,000/- and to pay incidentals to the tune of Rs.2000/-.
The complainant has filed along with the complaint the invoice dated 23.5.2017, the e-mail sent by the complainant on many dates , reply sent by the O.Ps on 16.11.2017 through mail and also the documents relating to the complaint made before the Consumer Grievances Redressal Cell.
O.P nos. 1 to 4 have contested the case by filing written version . But on perusal of the written version it appears that O.P nos. 1 to 4 have not replied to the allegations made in the complaint para-wise. The written version filed by O.P nos. 1 to 4 contains only that the complaint is devoid of any merits and complainant is not entitled to any relief. However, during the evidence they have agitated in the affidavit-in-chief filed on behalf of O.P nos. 1 to 4 that the technician of the O.Ps visited the place of the complainant and found PCB error and so, they suggested the complainant through their mail for replacement of the PCB. However, the complainant did not allow the replacement of PCB and remained adamant for replacement of entire A.C machine. So, there was no deficiency in service on the part of the O.P. It is further contended that as per condition of warranty, replacement of product or refund is expressly excluded and warranty covers only repair or replacement of any parts thereof ,which needs replacement or repair for any reason of defective components.
O.P-5 inspite of service of notice did not take any step and thus, the case has been heard exparte against O.P-5.
Following points require to be determined:-
- Whether the present complaint is maintainable in law ?
- Whether there has been any deficiency in service or unfair trade practice on the part of the opposite parties ?
Decision with reasons
Both the points are taken-up for a comprehensive discussion in order to avoid repetation.
O.P nos. 1 to 4 though have not stated anything regarding the territorial jurisdiction of this Commission in their written version, but during their evidence it has been contended that the Courts in Ahmedabad only has jurisdiction in the event of any dispute as per the terms and conditions of the warranty. It is already highlighted above that the written version filed by O.P nos. 1 to 4 contains the only fact that the complaint filed by the complainant is devoid of any merits and that complainant is not entitled to any relief as prayed . No other facts have been stated. So whatever has been stated by O.P nos. 1 to 4 in their evidence is beyond the written version filed by them. Be that as it may, but even in support of their contention raised in evidence, O.P nos. 1 to4 have not filed any document including the warranty ,containing the alleged terms and conditions. The office of the Johnson Controls – Hitachi Air Conditioning India Ltd. is also situated within Tollygunge Police Station and it has been made as O.P-1 in this case. Neither in the written version nor in their evidence, O.P nos. 1 to 4 have stated that the O.P no.1 has been unnecessarily made as a party or that it is no way related with the company. It is not stated by them that this case is bad for defect of party or misjoinder of parties. If that be so, then since O.P no.1 in this case falls within the territorial jurisdiction of this Commission, contention raised by the O.P nos. 1 to 4 that this Commission lacks the territorial jurisdiction to hear the case, cannot be accepted in view of Section 11 of Consumer Protection Act, 1986 and section 34 of the Act of 2019.
Now coming to the merits of the case, in support of her claim that she purchased one split 1.5 ton Inverter A.C machine from O.P no.5 and that it started giving trouble and became inoperative within three months of the purchase, complainant has filed the invoice and e-mails sent to the O.Ps. On perusal of invoice /bill dated 23.05.2017, it appears that the complainant purchased one A.C Split of brand Hitachi Model RSD 318EAEA on payment of total sum of Rs.47,700/- . Copy of the e-mail dated 15.09.2017 sent by the complainant indicates that on 11.09.2017 said AC was out of order was reported to the O.Ps and the inspection of the said AC machine was conducted by the technician of the O.P company/customer care on 13.09.2017 ,when he found that some important part was to be replaced. Thereafter complainant has sent many other mails agitating her grievance that AC machine is defective and thus to replace the same. These facts that the complainant has complained about the AC machine being not working and that the technician on inspection found that a major part of the machine was defective has not been disputed and denied by the contesting O.Ps. It is the only contention of the O.Ps that on inspection PCB of the AC was found defective and they were ready to replace the PCB but the complainant remained adamant to replace AC . It is further contended by the O.Ps that as per condition of the warranty, replacement of the product or refund is expressly excluded and warranty covers only repair or replacement of any part thereof. It has already been highlighted above that the O.Ps have not filed the warranty to show such terms and conditions. On the contrary the e-mail dated 16.11.2017 sent by the O.P company to the complainant reveals that it has been categorically stated “Considering any such problems in future we assure that machine will be replaced if any second failure comes within the warranty period”. This statement in the letter dated 16.11.2017 negates the contention of the O.P company that no replacement can be done as per the terms and conditions of the warranty. Said letter clearly indicates the provision of replacement of the total Air Conditioner within the warranty period.
On perusal of the questionnaire filed by the complainant it appears that she had put a specific question as to whether the O.Ps filed the service report of the technician after inspection of the AC. But in reply O.Ps have stated that complainant has not mentioned the date, of which she was seeking the job sheet. In this context it may be pointed out that there should not have been any confusion to know the date as admittedly only once inspection was held by the technician of the O.P company. So, no service report or job sheet regarding the inspection of the AC machine is forthcoming. However, in their letter dated 16.11.2017, O.Ps have stated that the PCB of the machine was found faulty. Complainant has filed a print out regarding PCB in AC and causes of its failure. On consideration of reasons of failure stated in this document, apprehension of the complainant that any handling or rectification generally creates another component to be damaged and thus such item erodes away its utility value cannot be ruled out, especially when in this case within three months of the purchase of the AC it started giving problems and became inoperative. So, in view of the discussions as highlighted above, complainant is entitled to the replacement of the AC along with compensation for harassment. However, compensation shall have to be paid by the O.P no.5, the dealer/seller of the AC. Being the seller he earns a chunk of profit out of selling the product and so it cannot avoid the responsibility of making good the loss to a customer. In our view a sum of Rs.15000/- as compensation will be justified.
Hence,
ORDERED
that CC/594/2018 is allowed on contest against O.P nos. 1 to 4 and exparte against the O.P no.5.
O.P nos. 1 to 4 are directed to replace the AC machine (Both indoor and outdoor units) purchased against the invoice no. BFLG/125/17 dated 23.05.2017 within two months from this date.
O.P no.5 is directed to pay an amount of Rs.15000/- as compensation within the aforesaid period of two months.
