By Sri. Chandran Alachery, Member:
The complaint is filed under section 12 of the Consumer Protection Act of 1986 for an Order directing the opposite parties to pay a sum of Rs.5,00,000/- as compensation to the complainant and to replace the defective air conditioner with a brand new air conditioner free of costs with the same warranty conditions and to pay the cost of the proceedings.
2. Brief of the complaint:- As per advertisement made by opposite parties No.1 and 2, the complainant purchased a split type air conditioner manufactured by opposite party No.3 from the shop of opposite party No.1 and 2 at Kozhikode on 28.09.2010. Opposite party No.1 promised best service and opposite party No.3 gave a warranty for 5 years. Opposite party No.1 also assured service at house and stated that they have service point and service personal at Kalpetta. After on week of purchase, as deputed by opposite party No.1 and 2, a technician fitted the air conditioner at the complainant's house. The air conditioner stopped working after two weeks of its installation and the same became default and useless. On giving information about complaint, the opposite parties did not respond. The defect of the air conditioner must be a manufacturing defect. The complainant had to suffer much mental agony and financial loss. Aggrieved by this, the complaint is filed.
3. On receipt of complaint, notices were issued to Opposite Parties and notice served to all Opposite Parties. 1st Opposite party did not appear and 1st Opposite Party is set exparte. 2nd and 3rd Opposite Parties filed version. In the version of 2nd Opposite Party, 2nd Opposite party contended that the case against 2nd Opposite party is not maintainable before the Forum since 2nd Opposite Party is only a dealer of 3rd Opposite Party. 2nd Opposite Party is also selling the other items of other companies. The Complainant directly came to the showroom of 2nd Opposite Party and selected the item at their own satisfaction. This 2nd Opposite Party had no office, Branch or showroom in Wayanad district. The after sales service is conducted by the technicians of 3rd Opposite Party. The complainant alleges manufacturing defect in the AC for which 3rd Opposite Party is liable. There is no cause of action from the side of 2nd Opposite Party and 2nd Opposite Party never installed the AC at Wayanad and never gave after sales service. Hence the Complaint is liable to be dismissed. In the version of 3rd Opposite Party, 3rd Opposite party contended that 3rd Opposite party is unaware of the purchase of AC on 29.08.2010 and the subsequent installation in the house of the Complainant. No document regarding the sale and installation of the AC is send to the 3rd Opposite Party. 3rd Opposite Party do not know whether the 1st Opposite party assured 5 years warranty and 2 years check up at site for the AC. There is no scheme for providing free check up at site for the AC. The Complaint was intimated to 3rd Opposite party for the first time in the month of October 2013. Immediately after the receipt of complaint, the technician of Opposite party inspected the AC unit and it was found that the defect is due to the gas leak. It was also seen that the gas pipe line was fixed concealed through the wall. The technician informed to the Complainant that in order to find out the gas leak it is required to take out the gas pipe from the wall and if the pipe could not be taken out a new gas pipe shall be fixed for AC and it is required to take the AC to service centre for the purpose of refilling the gas. But the Complainant took an adamant attitude and he was not ready and willing to take out the gas pipe for the wall or permit the technician to take the AC to the work shop. But Complainant demanded that the AC should be repaired at the house of the Complainant itself. The technicians of the Opposite party convinced the Complainant that it is not possible to refill the gas without taking the unit to the work shop and the defect cannot be cured without checking the existing the gas pipe. Only due to the non-co-operation of the Complainant that the defect could not be rectified. The AC unit is not fitted by the technician of the 3rd Opposite party. In the knowledge of 3rd Opposite Party, it is fitted by the technician of 1st and 2nd Opposite parties. The AC unit is only having a warranty of one year. The compressor of the AC unit carries warranty for a period of 5 years. 3rd Opposite party denied all other material allegation in the complaint. Hence the complaint is liable to be dismissed.
4. On perusal of complaint, version and documents, the Forum raised the following points for consideration.
1. Whether the complaint is barred by limitation?
2. Whether there is deficiency of service from the part of Opposite parties?
3. Relief and cost.
5. Point No.1:- The Complainant filed proof affidavit and is examined as PW1 and documents are marked as Exts.A1 to A7. Commission reports are marked as Exts.C1 to C3. Exts.A8 to A11 is marked after confronting with OPW1. The 2nd Opposite party also filed proof affidavit and 2nd Opposite party is examined as OPW1 and Exts.B1 to B3 are marked. 3rd Opposite party not adduced evidence. Ext.A1 is the lawyer notice send by the Complainant to the Opposite parties on 09.01.2014 and its acknowledgments. Ext.A2 is the reply notice send to the Complainant by 3rd Opposite party dated 22.01.2014. Ext.A3 is the reply notice send to the Complainant by 2nd Opposite party. Ext.A4 is the warranty card and Ext.A5 is the owners manual, Ext.A6 is the installation manual. Ext.A7 is the users manual. Ext.B1 is the copy of Ext.A1 notice. Ext.B2 is the copy of Ext.A2 notice. Ext.B3 is the authorisation letter given to Mr. Anish. M to conduct the case. On going through Ext.A4 warranty card, it is seen that the replace of the AC unit is during the first 3 months from the date of purchase if it is returned in good condition. For repairing the unit for a period of 4 years and 9 months by charging only for the spares and components. Service charges will be free. The manufacturing company ie 3rd Opposite parties in their version stated that the AC unit is having a warranty of one year only. The compressor of the AC unit carries warranty for a period of five years. The Complainant purchased the AC unit on 28.09.2010. The Complainant send lawyer notice to the Opposite parties on 09.11.2014. The Complaint is filed on 14.02.2014. Replace warranty is over within the first 3 months of purchase as per Ext.A4. The case of Complainant is that the AC unit became defective and stopped working after two weeks of its installation. The case of Complainant is that the Complainant contacted the Opposite parties on several times but no remedy was given to the Complainant by Opposite parties. So the Complainant went to the office of the 1st and 2nd Opposite parties at Calicut several times and also written in the complaint book maintained in their shop at Calicut. Even then, the Opposite Parties did not attend the request of the Complainant and not rectified the defect. But here, the Complainant not produced any document to show that the Complainant contacted the Opposite parties immediately after two weeks of purchase. The 2nd Opposite Party is examined as OPW1 and OPW1 deposed before the Forum in Cross examination that there is complaint book in the show room wherein after sales complaints will be noted. The OPW1 verified the book and got the details of this complaint. But the 2nd Opposite party did not produce the complaint book before the Forum even if there is an order as per IA 489/15 by the Forum. But 2nd Opposite Party filed affidavit stating that the book is not available there. OPW1 again deposed that the installation of AC will be done by the service centre of the company and not by 1st and 2nd Opposite parties. No technicians from 1st and 2nd Opposite parties to the house of Complainant and fitted the AC. In the version of 2nd Opposite party also, 2nd Opposite party stated that their technician not fitted the AC unit at the house of Complainant. It is 3rd Opposite Party's technicians who have fitted the AC. On verification of Ext.A6 installation manual, it is specifically stated in it that the repair and maintenance of AC Unit must be with the authorised service technician of the 3rd Opposite party and the installation of AC Unit must be by an authorised installer of the 3rd Opposite party. 3rd Opposite party admitted that the 1st Complaint intimated to 3rd Opposite party is in the month of October 2013. On receiving the complaint, 3rd Opposite Party send technicians to the house of Complainant and found that the non working of AC unit is due to the leakage of gas. They were ready to service the AC by taking the AC to their service centre, but the Complainant not allowed them to take the AC. So the 3rd Opposite party stated that they could no rectify the defect due to the adamant attitude of Complainant. The Commissioner appointed by the Forum inspected the AC and filed report and is marked as Ext.C1 to C3. In Ext.C3 filed report, the Commissioner reported that there is gas leak inside the out door unit and indoor unit and it is a manufacturing defect. The Commissioner suggested to replace the AC instead of repairing it since repair will not be success any more. 1st and 2nd Opposite Parties are only sales centers and they are not conducting after sales services or installation. The Complainant's case is that the AC unit became non-working after two weeks of its installation and that is reported to Opposite parties and written in complaint book kept by 2nd Opposite Party. But Opposite Parties not rectified the defects. It is evidenced that the Complainant send lawyer notice only in the year 2014 ie after 2 years of purchase. As per Consumer Protection Act 1986, section 24 A, a complaint is to be filed within 2 years of purchase ie cause of action had arisen. As per 24A(2), a complaint may be entertained after the period specified in subsection (1), the Complainant satisfies the Forum that he had sufficient cause for not filing the complaint with such period. But the Complainant herein filed the complaint without explaining any reason for the delay caused in filing the complaint. No separate application is filed to condone the delay. The Complainant filed the complaint as if there is no delay at all. The complaint is filed in the year 2014. Even if there is service warranty for 4 year and 9 months, it will not save the limitation period of 2 years in filing complaint especially where Complaint occurred after 2 weeks of purchase. The product become defective immediately after 2 weeks of purchase. Why the Complainant being a highly educated person waited till the expiry of the filing period of 2 years is not explained in the complaint. In ruling pronounced the Hon'ble National Consumer Disputes Redressal Commission reported in 2016(2) CPR 365(NC) the Hon'ble National Consumer Disputes Redressal Commission ruled that the Complainant is hopelessly barred by limitation if it is filed after limitation period without petition to condone the delay. In another ruling by Hon'ble National Consumer Disputes Redressal Commission reported in 2015 October part 10, page 116 the Hon'ble National Consumer Disputes Redressal Commission ruled that Consumer Forum under an obligation not to admit a consumer complaint unless it is filed within 2 years from the date on which cause of action has arisen. In another ruling by Hon'ble National Consumer Disputes Redressal Commission, reported in 2016 January part 1, Page 249, when a statute provides period of limitation, it has to be applied with all its rigors. The Forum cannot ignore the limitation period even if there is no separate petition is filed by the Opposite Parties challenging maintainability of complaint on the ground of limitation. If question of law is involved, the Forum must consider it first before going to question of fact. The Hon'ble National Consumer Disputes Redressal Commission verdicted in a ruling reported in 2015(2) CPR 22 (NC), the consumer forum have no option but to dismiss the complaint where complaint beyond limitation period and application for condonation of delay also not filed under section 24(A)(2). In another ruling reported in 2014(4) CPR 285 (NC) the Hon'ble National Consumer Disputes Redressal Commission dismissed the complaint since the complaint is barred by limitation since no application for condonation of delay was filed on behalf of respondent. Hence in this case, the Forum found that the Complaint is filed after the expiry of 2 years of cause of action as specified in the Act. The delay is not explained by sufficient and cogent reason. Delay condonation petition is also not filed. Hence the complaint is liable to be dismissed. Point No.1 is found accordingly.
6. Point No.2 and 3:- Since Point No.1 is found against the Complainant, the point No.2 and 3 is not answered.
In the result, the complaint is dismissed. Both parties shall bear their respective costs.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Forum on this the 1st day of August 2016.
Date of Filing:14.02.2014
PRESIDENT : Sd/-
MEMBER : Sd/-
/True Copy/
PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:
CW1. Baby Varghese. Technician & Instructor, Government Poly Technique, Meenangadi.
Witness for the Opposite Parties:
OPW1. Aneesh. Manager, Gopu Nandilath Group, Mavoor Road,
Kozhikode.
Exhibits for the complainant:
A1. Letter. dt:09.01.2014.
A2. Letter. dt:22.01.2014.
A3. Letter. dt:14.02.2014.
A4. Warranty Card.
A5. Owner'sManual
A6. Installation Manual.
A7. User's Manual.
A8. Coy of Warranty Registration Card.
A9. News Paper. dt:27.02.2016.
A10. News Paper. dt:20.02.2016.
A11. News Paper. dt:05.03.2016.
C1. Commission Report. dt:31.12.2014
C2. Commission Report. dt:17.06.2015.
C3. Commission Report. dt:01.10.2015.
Exhibits for the opposite Parties.
B1. Copy of Letter. dt:09.01.2014.
B2. Copy of Letter. dt:22.01.2014.
B3. To Whomsoever it may concern. dt:01.12.2012.
