Shri Debasish Bandyopadhyay,  Hon’ble President.

Brief fact of this case:- This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant describing that after deciding to buy a A.C. he bought it from the opposite party no.3 i.e. Khosla Electronics Pvt. Ltd., Ahana Apartment, Pallyshree, Station Road, Opp. Cold Storage, Hooghly, Chinsurah-712 102 on 20/05/2014 costing Rs., 30500/- with 5(five) years replacement warranty on compressor and faced the first problem in 2016 ( within almost two years of buying)when the compressor of the A.C. stopped working and he booked a call to the opposite party no. 2 (Service Centre) via opposite party no. 3 on 28/06/2016 for which the petitioner was charged Rs. 575/- as inspection charge and Rs.1750/- as Gas Charging for the compressor.  The petitioner also states that he paid off Rs. 1750/- as Gas Charging for replacement of the compressor.  The complainant also states that he faced the same problem in 2017 and again the Opposite Party claimed Rs. 2325/- for as inspection charges Rs. 575/- and Rs. 1750/- as gas charging and the petitioner paid the amount on 17/06/2017.  The petitioner also states that he frequent disturbances of the compressor since there was only one year left of the warranty period he may change the condenser and capacitor costing Rs. 10404/- (Rs. Ten thousand four hundred four only) in total if the petitioner changes the condenser and the capacitor then the problem may arise again and the service centre behaved rudely with the petitioner in front of the wife and the six year old daughter hearing the question from the petitioner and the petitioner decided to talk to the toll free number on 24/05/2018 after booked a complaint against the opposite party no. 2 with ref. no. 8466900382, the order was cancelled and  on 30/05/2018 and the petitioner has been suffering a lot and the he also been insulted and had to buy another machine to get relief by spending Rs. 40000/- plus installation charges.

            Complainant filed the complaint petition praying direction upon the opposite party to pay sum of Rs. 40500 from the Sumsung India Electronics (opposite party no. 1) or a whole replace of the machine with same model no. and to pay a sum of Rs. 14650/- from opposite party no. 2 and to pay a sum of Rs. 10000 from the opposite party no. 3.

Defense Case:-  The opposite party No.1 contested the case by filing written version denying inter-alia all the material allegation as leveled against him.  This opposite party submits that the complaint is not maintainable either in law or in facts and as such the complaint filed by the complainant is liable to be dismissed with cost and the instant complaint is baseless, devoid of merits, harrassive, frivolous, speculative and is of no consequences and is liable to be dismissed in limini.   The opposite party no. 1 also states that there is no such specific cause of action in the instant case and no specific allegation has been made out by the complainant against the opposite party no.1. The opposite party no. 1 also states that the complainant alleges manufacturing defect in the Air-Conditioner and it is pertinent to mention here that alleged manufacturing defect cannot be determined on the simpliciter written submissions of the complainant and needs a proper analysis test report to confirm the same and the complainant has miserably failed to prove the alleged manufacturing / technical fault neither placed on record any analysis test report for the perusal of the Ld. Forum.  The opposite party no. 1 also states the Air-Conditioner is not working properly and merely by oral assertions of the complaint it cannot be ascertained the handset is not working properly and is required to be checked by the proper analysis/test by the appropriate Laboratory as per the section 13(1) (c) of the Consumer Protection Act. 

            The complainant/petitioner allegedly purchased a Samsung split Air-Conditioner from the opposite party no. 3 on May 20, 2014 and has not provided any purchase invoice to substantiate the purchase of the said Ac on May 20, 2014.   The opposite party no. 1 provides a comprehensive warranty of one-year warranty in case of AC and the warranty covers only the defects in product arising out of manufacturing or faulty workmanship with the warranty period.  The warranty of the product means that in case of any problem with the AC, the Ac will be repaired or its parts will be replaced as per warranty policy and the warranty of the Ac is subject to conditions mentioned in the warranty policy that comes with the product manual.

The opposite party no. 1 also states that the complainant had failed, time and again to substantiate his allegations with an Expert Opinion as is mandatorily required under Section 13(1) (c) of the Consumer Protection Act, 1986.    The opposite party no. 1 also states that there has been no deficiency of service and/ or trade practice neither on the part of the answering  opposite party 1 in any manner whatsoever, as alleged or at all. Thus the opposite party no. 1 prayed to dismiss the instant case with cost.

The opposite party No. 3 contested the case by filing written version denying inter-alia all the material allegation as leveled against him.  This opposite party submits that for keeping good will the opposite party no. 3 always made service to the complainant at the time of warranty period and always cooperate the complainant about solving the problem and prayed to dismiss the instant case with cost.

            Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite parties.

            The answering opposite party filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party no. 1 filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party no. 1 heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration  are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of nonmaitainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Sahaganj, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable relating to the facts highlighted in this case and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law.

   Now the question is whether this case is maintainable according to the provisions of the law of contract, law of guarantee and law of warranty or not? In this regard it is important to note that the market is flooded with millions of products of same nature, type, size and quality, which make it hard to pick one product over the other. As a buyer, one person can specify the product of his own choice by setting standard for manufacturing entities. In this regard, it is very vital to know about the definition of guarantee. The guarantee is defined as promise for the after sales performance of the product or service. It expresses that the manufacturer has given promise regarding the content, quality or performance of the product and in case the obligation is not fulfilled then manufacturer will replace or repair the product or the money paid as consideration will be refunded. Under Indian Contract Act, in the contact of guarantee there are three parties namely, surety, principal debtor, creditor where manufacturer acts as a surety, if the performance of the product is below average. On this background the definition of warranty is very important. Warrantee is define as an assurance given by the manufacturer or seller to the buyer that this specified facts about the product are true. It is a collateral condition to the main objective of the contract. It specifies that the particular product is upto this standard in respect of its quality, fitness and performance. It applies to tangible objects like machines, electronic equipments etc.

On close compare of the definition of guarantee and warranty the following differences are appearing;-

        On parallel comparison of the above noted legal provisions with the case of the complainant it appears that the instant case of the complainant is not coming under the purview of law of guarantee but it falls under the definition of warranty and so the complainant cannot confuse himself with the term of guarantee and warranty. As the complainant’s case is falling under the definition of warranty, the complainant has only received written assurance from the manufacturer or seller that the facts specified in the product (AC machine) is true and genuine and the complainant is only entitled to get the chance of repairing/ replacing of the said product and the cost is to be borne by the buyer that is complainant has to pay for the warranty. Thus, the complainant’s averments in the petition of complaint is not wholly true and reliable.

Moreover, in order to prove the fact that the product (AC machine) was containing manufacturing defect, there was urgent necessity for the complainant for expert examination of the said product but in this instant case the complainant has not prayed such relief. So, the question of replacing the product on the ground of manufacturing the defect cannot be allowed as the fact of manufacturing defect in the said product (AC Machine) has not been proved by the complainant by way of giving expert evidence. In this regard, it is also important to note that the complainant has informed the local service center for repairing the problem developed in the said AC machine and local service center has also repaired the same against payment of charges. In respect of payment of payment of charges the complainant has raised objection. But facts remain that as per rule of warranty the buyer must has to pay the cost and so this objection of the complainant cannot be accepted.

A cumulative consideration of the above noted discussion goes to show that the complainant has miserably failed to prove that this case is maintainable in the eye of law and complainant has also afield to establish that he is entitled to get relief in this case and that there was deficiency of service on the part of the opposite parties.  In view of this position, this District Commission has no other way but to decide all the above noted five points of consideration against the complainant.          

In the result it is accordingly

ordered

that the complaint case being no. 84 of 2018 be and the same is dismissed on contest.

            No order is passed as to costs.

Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.