This case has been filed U/s.12 of the Consumer Protection Act, 1986 by the complainant that on 22.5.2017 the complainant purchased a Godrej Split Air Conditioner, 1.5 tones vide model no. 18USZ5WPR at a consideration value of Rs. 34,500/- from the opposite party no. 1 and the opposite party no. 1 issued cash memo in favour of the complainant and at the time of purchase, the opposite party no. 1 said that after delivery one technician will send to install the said A/C and it is free of cost and on 24.5.2017 the AC was delivered to the complainant and accordingly opposite party no. 1 send one technician of authorized service center namely, Sona Aircon to install the said AC and the said technician demanded Rs.1850/- for installation charge and when the complainant raised objection he assured that “this is the provision of the company and you will return the said amount of installation charge from the opposite party no. 1” and then the complainant paid the said amount to the technician. But after installation the said AC did not working then the technician said that there is a problem of the said AC so contact with opposite party no. 1 and thereafter the complainant immediately contact with opposite party no. 2 over telephone and thereafter the opposite party no.2 sent their technician on 17.6.2017 and after observing the condition of the said AC the technician of opposite party no. 2 told that there is a voltage problem so one stabilizer is required then the complainant immediately purchased one stabilizer but after connecting the problem is not resolved then the technician left the premises of the complainant without resolving the matter. Again the opposite party no. 2 sent their technician and after observing the condition of the said AC he told that the said AC machine both inner and outer portion is defective and he reported that problem “some as past set change require” and thereafter the complainant handed over the defective report to the opposite party no. 1 but the opposite party no. 1 did not give any satisfactory reply. Even on 12.9.2017 the complainant sent a notice to opposite party nos. 1 and 2 to resolve the matter but they did not respond.
Complainant filed the complaint petition praying direction upon the opposite parties to replace the defective AC machine with new one or in default to refund a sum of Rs.34,500/- + Rs. 1850 = Rs.36,350/- along with interest 18% per annum and to pay a sum of Rs. 50,000/- towards compensation for causing mental pain, agony, anxiety and harassment and to pay a sum of Rs.10,000/- towards litigation cost and to give any other relief or reliefs as deem fit and proper.
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 as such any dispute as regard the AC machine after purchase of the same only the manufacturer i.e. opposite party no. 2 can be questioned not the dealer i.e. opposite party no. 1 and being a seller the opposite party no. 1 is not at all related and/ or liable to provide after sales services to the complainant in any manner and it is the manufacturer who can provide relieves in accordance with the warranty limitations as such the opposite party no. 1 may be released and/ or be expunged from the instant case for the interest of justice being not liable. Subject to terms and condition of the warranty and during the period of availing of said service the complainant cannot prayed for any relief claiming to refund of the amount of the AC machine and compensation those are beyond the terms and conditions of the warranty clause. The opposite party no. 1 has nothing to do and no power to refund the amount or replace the AC machine since the entire purchase value of the goods has been deposited to the manufacturer save and except the VAT and the meager amount of commission and there was no binding/ undertaking by the opposite party no. 1 to provide after sale services to the complainant and thus the instant case is not at all maintainable against the opposite party no. 1 and the same is liable to dismissed in limini with exemplary cost.
The opposite party No. 2 contested the case by filing written version denying inter-alia all the material allegations as leveled against him. This opposite party submits that those facts are entirely within the knowledge of opposite party no. 1 and Sona Aircon so he reserves his right to comment and the opposite party no. 2 never been contacted by the complainant and the technician of opposite party no.2 has not been made a party to this case so in his absence any corroboration or contradiction of his statement is next to impossible and the complainant failed to annexe any purchase memo of purchasing stabilizer and also the complainant failed to annex any jobcard and/ or observation sheet of the alleged agent of opposite party so that they can find out what work has been carried out by him or whether the AC machine in dispute contains any manufacturing defect or not and also the complainant preferred to suppress the alleged copy of defect report. Though a copy of the letter have been served by the complainant towards the opposite party no.2 in form of annexure but the authenticity of the letter is quite doubtful as though the letter is a computer generated one but some part of it is handwritten and there are many things that the complainant preferred to suppress. So the instant case is liable to be dismissed with exemplary cost.
The complainant has 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 parties filed evidence on affidavit which transpires the averments of the written version so it is needless to discuss.
Complainant and opposite parties filed written notes of argument. The evidence on affidavit and written notes of argument of both sides are taken into consideration for passing final order.
Argument as advanced by the agents of the complainant and the opposite parties heard in full.
From the discussion herein above, we find the following issues/points for consideration.
Issues/points for consideration
- Whether the complainant is the consumer of the opposite parties or not?
- Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?
- Whether there is any deficiency of service on the part of the opposite parties?
- Whether the complainant is entitled to get relief or not?
DECISIONS WITH REASONS
All the points are taken together for easiness of the discussions of this case.
1) In the light of the discussion hereinabove and from the materials on record, it transpires that the complainant is a Consumer as provided by the spirit of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986, the complainant here in is a consumer of the opposite parties.
2). Both the complainant and the opposite parties are residents/having their office addresses within the district of Hooghly. Considering the claim amount of complainant as per prayer of the petition of complainant it appears that those are not exceeding Rs.50,00,000/-. So, this Forum/Commission has territorial/pecuniary jurisdiction to entertain and try the case.
- The complainant purchased a Godrej Split Air Conditioner, 1.5 tones vide model no. 18USZ5WPR at a consideration value of Rs.34,500/- from the opposite party no. 1 and the opposite party no. 1 issued cash memo in favour of the complainant and at the time of purchase, the opposite party no.1 said that after delivery one technician will send to install the said A/C and it is free of cost and on 24.5.2017 the AC was delivered to the complainant and accordingly opposite party no. 1 send one technician of authorized service center namely, Sona Aircon to install the said AC and the said technician demanded Rs.1850/- for installation charge and when the complainant raised objection he assured that “this is the provision of the company and he will return the said amount of installation charge from the opposite party no. 1” and then the complainant paid the said amount to the technician. But after installation the said AC did not working then the technician said that there is a problem of the said AC so contact with opposite party no. 1 and thereafter the complainant immediately contacted with opposite party no. 2 over telephone and thereafter the opposite party no.2 sent their technician on 17.6.2017 and after observing the condition of the said AC the technician of opposite party no. 2 told that there is a voltage problem so one stabilizer is required then the complainant immediately purchased one stabilizer but after connecting the problem is not resolved then the technician left the premises of the complainant without resolving the matter. Again the opposite party no. 2 sent their technician and after observing the condition of the said AC he told that the said AC machine both inner and outer portion is defective and he reported that problem “some as past set change require” and thereafter the complainant handed over the defective report to the opposite party no. 1 but the opposite party no. 1 did not give any satisfactory reply to the complainant regarding this matter though the air conditioner have within warrantee period. The complainant also met with the opposite party no. 1 a number of times to pursue the matter but in vain. Thereafter the complainant on 12.9.2017 sent a notice addressing the opposite party nos. 1 and 2 stating the facts and requesting to replace the said air conditioner within 7 days which was duly served upon all the opposite parties but this time the opposite party did not respond to the said notice. So, the complainant filed the instant case before this Commission praying directions as incorporated in the prayer portion of the compliant petition.
The opposite party no. 1 in his argument averred that he is the dealer of consumer durable goods manufactured by different MNCs. The great eastern trading company is having a principle-to-principle basis relation with the said manufacturing companies. Any consumer durable products sold by the great eastern trading company are governed by the warrantee terms and condition of respective manufacturer. In general any issues related to after sale services are to be escalated by the consumers before the manufacturing company through their respective authorized service centers only. Save and except delivery the great eastern trading company is not authorized and/ or liable for the installation and/ or demonstration and/or after sales service of the products purchased by customer. Moreover as per the warrantee policy of the manufacturing company any attempt on the part of the great eastern trading company to provide after sales service shall be a third party attempt to render the warrantee coverage void. After delivery it is on the part of the complainant to register for installation request with the op no. 2. The dealer is to deliver the product purchased by a consumer to their designated address. The complainant approached the company alleging a functional issue in the air conditioner. As the dealer does not have the authority to render the after sale service the dealer had suggested the complainant to raise a complaint with the op no. 2 for necessary remedy. The op no.2 is liable to provide after sales service through their authorized service center. In case of manufacturing defects in the products and the same is limited to repair and/ or replacement of spare parts subject to terms and condition mentioned in the warrantee card. It is also alleged that for any type of complaint please contact the manufacturer and warrantee is given by manufacturer only.
Opposite party no. 2 in his argument assailed that the complainant have claimed to have purchased the A/C from the opposite party no. 1 and paid the consideration money towards the opposite party no. 1. So, whether money receipt is issued by the opposite party no. 1 and the payments were credited towards its account can only be ascertained by the opposite party no. 1. In regards to the allegation of taking extra money and issuing of money receipt can only be ascertained by SONA AIRCON and not by the opposite party no. 2. The consumer can file a case under two circumstances 1). for defecting goods and 2). Deficiency in service, though the complainant had asked for replacement of goods and/or to refund the money but from the four corners of the petition of the complaint and also from the affidavit in chief the complainant tried to emphasis upon deficiency in service and not upon defecting goods. So, from that submission of that complainant this case is liable for dismiss as because for deficiency of service the complainant can be entitled to compensation but not replacement or refund of the value of goods. No warrantee card has been annexed in this case which cast a huge doubt about the genuinity of the product in question and whether the op no. 2 is the actual maker of the product or not. So, without ascertaining the actual maker of the product solely based upon the submission of the complainant fixing any liability upon the shoulder of the op no. 2 is unwarranted. The complainant before filing of this case never informed the matter to the opposite party no. 2. The complainant has claimed that the AC is defective but no expert opinion has been annexed with this case and moreover the complainant has not taken the pain to seek any expert opinion holding op no. 2 is unwarranted. He also submits that the name of the op no. 2, GODREJ AND BOYCE MNG CO. LTD. and not any GODREGE COMPANY LTD. So, it is crystal clear that the complainant does not know the name of the op no. 2. The complainant also failed to establish what exact fault the AC has developed and whether the AC is completely inspirational cannot be ascertained due to the non availability of any expert opinion. The consumer is using this tool against the companies to settle their illegal demand and this case is non exceptional to that. As the complainant has mercilessly failed to prove his case as such he is not entitled to get the relief as claimed for.
It appears from the tax invoice dt. 22.5.2017 that the complainant purchased one split A/C from the op no. 1 by paying a sum of Rs.34,500/-. Photocopy of authorized service center namely, Sona Aircon dt. 28.5.2017 speaks that the installation charge along with accessories of the impugned split A/C is Rs. 1850/- which has been given by the customer. The call center service of Godrej smart care speaks that problem same as passed, said change required which is signed by technician D. Chakroborty. So, it is transparent from the case record and documents that immediately after installation of the said A/C it is suffered from problem in starting as a result the complainant suffers from the service of said split A/C. The case record and documents clearly speaks that complainant on several occasions tried his best to catch the admiration of the opposite party for servicing the impugned split A/C but the opposite party technician opined that set change is to be required. Thereafter the complainant made several correspondences on that context but all his effort came in vain. Getting no alternative the complainant preferred the recourse of this commission praying directions as incorporated in the prayer portion of the complaint petition. During the period of argument the ld. Advocate on behalf of the complainant assailed that the impugned A/C machine suffers from manufacturing defect since the date of installation but the opposite party after getting all information regarding the defective A/C machine remain silent which tantamount to deficiency of service on the part of the opposite party. The opposite party no. 1 in his argument stated that he is mere seller/ dealer he has no role regarding the manufacturing defect. The after sales service is to be provided by the authorized service center of the company. The opposite party no. 2, company appeared before this proceeding and tried to save their skin by filing evasive written version and the written argument.
Ld. Advocate on behalf of the complainant relied the judgement of Hon’ble State Commission West Bengal in Great Eastern appliances PVT. …..vs Bithika Bala on 8.3.2018 in which it is held that a manufacturing defect is a problem that becomes part of the product while the same is in the making. The most common causes of manufacturing defects are poor quality materials and carelessness in putting the product together or shoddy workmanship. The manufacturing defect is one that could be gotten read altogether, if the product were made with better quality materials or was made by a more careful and experience worker. In Jose Philip Mampillil vs. premier automobiles ltd. and another, AIR (2004) SC 1539 the Hon’ble Supreme Court made it clear that the dealer/ agent would be as liable as the manufacturer. If it was legally possible the dealer would later recover that money from the manufacturer, but as far as the consumer was concerned both were responsible, the Hon’ble Court observed. In case of M. Subba Reddy vs. Avula Venkata Reddy (R.P. No. 3282/2003, decided on 22.3.2007) the Hon’ble National Commission has been pleased to held that since the dealer sales the product to a customer, complaint is definitely maintainable against it. If the seller has any grievance it is free to draw appropriate legal proceeding against the manufacturer to realize the awarded amount from the manufacturer.
Upon hearing the argument and perusing the case record and documents this Commission is in the opinion that the complainant purchased the impugned A/C machine from the opposite party no.1 which is found defective and the opposite party failed to repair the defects. As a result the complainant suffered at the behest of negligence on the part of the opposite parties.
So, from the above observation this Commission is in the opinion that the complainant being a consumer of the opposite party purchased the impugned AC machine by paying money, money receipt filed. The impugned A.C. machine is found defective since after installation. As a result the complainant deprived of getting service of the said AC machine. He knocked several times to the opposite party but the opposite party on their turn tried to repair the defects. So, we may presume that the impugned AC machine have any manufacturing defect which is not repairable by the service center of the manufacturing company. Thus, the said AC machine is required to be replaced by a new one having same feature and same capacity and volume.
So, from the above discussion we may safely conclude that the complainant proved his case beyond reasonable doubt as such the complaint petition deserved to be allowed with cost and compensation.
Hence,
it is
ordered
that the complaint case being no. 234 of 2017 be and the same is allowed on contest against the opposite party with a litigation cost of Rs. 10,000/-.
The opposite party nos. 1 and 2 are directed to replace the impugned A/C machine with a new one having same feature, capacity and volume in default refund the entire consideration money of Rs. 34,500/- within 45 days from the date of passing this order.
The opposite party no. 1 and 2 are also directed to pay compensation of Rs. 20,000/- for mental pain and agony of this complainant within the stipulated period.
At the event of failure to comply with the order the opposite party shall pay cost @ Rs. 50/- for each day’s delay, if caused, on expiry of the aforesaid 45 days by depositing the accrued amount, if any, in the Consumer Legal Aid Account.
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.
