DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 22^th  day of June 2018

Present   : Smt.Shiny.P.R. President

              : Smt.Suma.K.P. Member                                 Date of filing:  01/06/2017

              : Sri.V.P.Anantha Narayanan, Member

(C.C.No.89/2017)

R.Dileep,

S/o.Radhakrishnan,                                                             -  Complainant

Devaki Nilayam, Kuniyampura,

 Kuthanur, Palakkad, Kerala.

(By Adv.K.Rajan)

 Vs

1.  The Manager,

M.J.Retail, Joby’s Mall,

G.B.Road, Palakkad, Kerala.

Regd Office,159 Okhgla Industrial

Estate Phase III, New Delhi- 110020.

3. Lloyd Electric and Engineering Ltd., -Opposite parties

Regd Office,159 Okhla Industrial

Estate Phase III, New Delhi 110020.

(Rep.by itsManaging Director/

Manager/authorized signatory

Industrial Area Kalkaji, New Delhi 110019.

                                                          O R D E R

By Sri. V.P.Anantha Narayanan, Member

Brief facts of the case. 

          The complainant purchased an inverter Air Conditioner of Lloyd Make on 05.04.2017 from the 1^st opposite party vide invoice No.64.  The complainant purchased the above said product attracted by the advertisement made by Lloyd company in the “Malayala Manorama” daily on 3^rd April 2017.  In the advertisement, four air conditioners were displayed having built in Wi-Fi.  Believing in the above advertisement the complainant purchased he above said “M.J.Lloyd Air Conditioner 1 ton invertor 13A1” for Rs.30,500/- on 05.04.2017.  Thereafter the complainant fitted the above product by the Lloyd Technician Mr.Noushad on 07.04.2017.  The technician has issued a letter to the complainant that there is no Wi-Fi facility in the above said Air Conditioner which was purchased by the complainant from the 1^st opposite party.  At the time of purchase, the staff of the 1^st opposite party made the complainant believe that the Air Conditioner purchased by him has built in Wi-Fi.  The benefit of Wi-Fi facility is that the Air Conditioner can be operated from a remote place with the help of mobile telephone which is having Wi-Fi connectivity.  It is more convenient and comfortable to operate it rather than using a remote control device.  That is why the complainant was motivated to purchase the said model Air Conditioner from 1^st opposite party.  At the time of purchase the staff of 1^st opposite party have specifically told that the air conditioner has having the Wi-Fi facilities as sought and ordered by him.  As the air conditioner is a new one and is a component with separate attachments, it cannot be tested by the complainant from the sales outlet i.e 1^st opposite party’s show room at the time of its purchase.  So naturally in accordance with the promise and assurance given by the 1^st opposite party that the air conditioner is having Wi-Fi facility and as shown by a sealed carton, the complainant did not find anything to disbelieve the 1^st opposite party and purchased the said model of Air conditioner from 1^st opposite party.  Believing the opposite party’s words the complainant has spent an amount of Rs.32,200/- for purchase, fitting and transport of the product.  The claim of the opposite party amounts to clear unlawful trade practice and cheating which comes under the Consumer Protection Act 1986.  Moreover the complainant incurred expenses and suffered mental agony also.  Thereafter on 13.04.2017 the same product was advertised in the “Malayala Manorama” which stated that “AC with Wi-Fi in Alternative”.  In the advertisement given on 03.04.2017 there is no word ‘alternative’.  The non disclosure of a material short coming and that 1^st opposite party has not sold and delivered the air conditioner as per the complainant’s instruction, can be treated as a shortcoming and deficiency in service as defined in sec.2 (g) of the Consumer Protection Act 1986 and the 1^st opposite party cannot escape from the responsibility to compensate the complainant.  The advertisements issued by the opposite parties 2 to 4 are highly confusing and misleading.  As an ordinary customer for the complainant to detect and scrutinize each and every minute detail of the advertisement it is not possible, but generally as the advertisement reflects that the air conditioner is having Wi-Fi facility, the complainant is also motivated and misled by the unclear advertisement of opposite parties 2 to 4, hence they are also responsible and liable to compensate the complainant for the said acts of deficiency of service committed by them.  On 11.04.2017 the complainant sent a lawyer notice to the 1^st opposite party demanding them to replace the Air Conditioner with built in Wi-Fi and pay an amount of Rs.10,000/- as compensation and Rs.1,000/- as cost of the notice to the complainant within 7 days from the date of receipt of the notice.  The notice was received by the opposite party on 12.04.2017.  After receipt of the notice the opposite party has neither sent any reply nor paid any compensation to the complainant so far.  The complainant is legally entitled to get the compensation from the opposite party and to replace the Air conditioner with built in Wi-Fi.  Hence it is humbly prayed that this Hon’ble Forum may be pleased to admit the complaint and direct the opposite parties to replace the “M.J.Lloyd Air Conditioner 1 ton invertor 13A1 with one which is fitted with “Wi-Fi facility” and to pay an amount of Rs.10,000/- as compensation for the mental agony and deficiency of service committed by the opposite parties and also to pay Rs.5,000/- being the cost of this complaint to the complainant with 9% interest from the date of purchase i.e 05.04.2017, till date of realization. 

          The complaint was admitted and notices were sent to all opposite parties to enter appearance and file their versions.  Other than 1^st opposite party, other opposite parties did not file their versions and hence they were called absent and set ex-parte. 

                    In the version filed, by the 1^st opposite party, this opposite party denies the allegations and averments except those expressly admitted.  This opposite parties admits that the complainant had purchased a “Lloyd Air-Conditioner 1 ton inverter 13A1” from this opposite party for an amount of Rs.30,500/- (Rupees thirty thousand five hundred only) on 05.04.2017 vide invoice No.64.     The opposite parties 2 to 4 are the manufacturers of the said Air conditioner and 1^st opposite party is only a dealer of Lloyd company.  The manufacturers (Opposite parties 2 to 4) ie, the Lloyd company, were immediately informed about this defect that this opposite party had understood that there was no built in Wi-Fi in the said model of the Air Conditioner purchased by the complainant, after knowing from the complainant that there was no Wi-Fi facility in the said product supplied to the complainant.   This opposite party also asked them (manufacturers) to make necessary arrangements to rectify the said defect, since this manufacturing defect cannot be rectified by any dealer of the appliances.  Even the lawyer notice sent by the complainant was forwarded to the manufacturers and they assured that they would rectify the said defect immediately.  Soon after, there were various talks and communications between the manufacturers (opposite parties 2 to 4) and the complainant regarding the said issue in the midst of which this complainant had lodged this complaint before this Hon’ble Forum.  But it was informed to this opposite party by opposite parties 2 to 4 as well as the complainant that the defect of the said product has been cured and a new one was replaced with built in Wi-Fi by the manufacturers and now he is in a position to use the Wi-Fi through their new inverter Air conditioner.  This opposite party also contends that neither lapses nor deficiency in service can be attributed against this opposite party and there is no cause of action against this opposite party.  So the complaint is false, frivolous, vexatious and it is only an abuse of process of law as far as this opposite party is concerned.  Hence, this opposite party respectfully submits to this Hon’ble Forum that since the manufacturers had cured the so called defect of the product purchased by the complainant by replacing it with a new one having the required facility (Wi-Fi facility), the matter is settled between the complainant and opposite parties 2 to 4; and this opposite party being a dealer has no role in curing the manufacturing defects of the products of the company, this opposite party may be exonerated from the allegations charged against this opposite party and therefore the complaint against this opposite party may be dismissed with cost of this opposite party.   

          Complainant and 1^st opposite party filed affidavits.  The documents filed by the complainant consisted of Exts.A1 to A7 which were marked except Ext.A4 which was marked with objection.  Both parties were heard. 

           The following issues arise in this case.

1. Whether there is any deficiency in service and/or unfair trade practice committed from the part of the opposite parties?
2. The remedy and relief available to the complainant ?

Issues 1 & 2

Ext.A5 shows that LIoyd company’s technician who fitted the air conditioner invertor for the complainant, on 07.04.2017 issued a letter to the complainant stating that there is no Wi-Fi facility in the said air conditioner purchased by the complainant from the 1^st opposite party.

 We have perused the affidavits and documents filed by both the complainant and the 1^st opposite party before this Forum, and understood that, the complainant purchased from 1^st opposite party “MJ Lloyd Air Conditioner 1 ton invertor 13A1 model” for Rs.30,500/- (Rupees thirty thousand five hundred only) on 05.04.2017 vide invoice number 64 which is also admitted by the 1^st opposite party, believing in the advertisement which advertised the said product and the words of opposite parties that this supplied product has built in Wi-Fi facility which is most sought after by the complainant; but the complainant came to know of the lack of Wi-Fi facility for his purchased product only on receiving a letter dated.07.04.2017 from the Lloyd company’s technician who fitted the air conditioner for the complainant.  Supplying to the customer a product by misrepresenting to him that, this product has a facility which actually the supplied product does not have amounts to unfair trade practice and deficiency in service according to Consumer Protection Act 1986 which reads as follows.  “According to section 2 (g) of the Consumer Protection Act 1986, deficiency is any fault, inperfection shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service”.  In this case also, we observe that, the opposite parties have not sold and delivered the air conditioner invertor as per complainant’s instruction that the product he is going to purchase should have built- in Wi-Fi facility.  This can be considered as a shortcoming and a deficiency in service as per section 2 (g) of the Consumer Protection Act 1986.  At the same time we also observe that immediately on knowing that the supplied air conditioner invertor does not have built-in Wi-Fi, this fact was seen immediately informed by the 1^st opposite party  to the manufacturers to rectify this defect and the 1^st opposite party also forwarded to the manufacturers (opposite parties 2 to 4), lawyer notice received from the counsel of the complainant by the 1^st opposite party and as a result the defective disputed air conditioner is seen to have been replaced by the manufacturers with an air conditioner invertor with built-in Wi-Fi to the complainant.  We also view that upto the date of replacement much mental agony, a lot of discomfort and inconvenience must have been suffered by the complainant as a result of the above gross deficiency in service and unfair trade practice seen to have been committed by the opposite parties. 

 Taking into consideration all the above we find that a lot of mental agony inconvenience and distress have been caused to the complainant as a result of non use of the air conditioner invertor with built-in Wi-Fi facility.  Therefore the  complaint is partly allowed; manufacturers of this disputed defective product are found to be liable for this.  Hence, we order the manufacturers (opposite parties 2, 3 & 4) to be jointly and severally liable to pay to the complainant a compensation of Rs.5,000/- (Rupees five thousand only) towards mental agony  and distress suffered by him and also to pay jointly and severally Rs.2,000/- (Rupees two thousand only)  to the complainant by way of cost of this proceedings spent by the complainant.  We also order that the 1^st opposite party is exonerated because 1^st opposite party is only a dealer and an agent of opposite parties 2 to 4, and have no role in curing the defects and in replacement  of the defective  disputed product.

This order shall be complied within one month from the date of receipt of this order; or else interest at 9% p.a on the total amount due to the complainant should also be paid to him from the date of this order till realization.

 Pronounced in the open court on this the 22^th day of June 2018.

                                                                                              Sd/-

                  Shiny.P.R

                   President 

                      Sd/- 

           Suma.K.P

                    Member

      Sd/-

    V.P.Anantha Narayanan

                   Member

Appendix

Exhibits marked on the side of complainant

Ext.A1          -  Original Advertisement published by Malayala Manorama Daily

             dated.03.04.2017 “Superstar AC’s with built in Wi-Fi”

Ext.A2          -  Original Advertisement published by Malayala Manorama Daily

              dated.13.04.2017 “Superstar AC’s with built in Wi-Fi”

Ext.A3          -  Original Tax Invoice cash bill number 64 dated.05.04.2017 issued by the 1^st

              opposite party to the complainant

Ext.A4          -  Receipt dated.05.04.2017 issued by ICICI bank regarding debit sale

             (Marked with objection)

Ext.A5          -  Letter dated.07.04.2017 sent by the Lloyd Technician Mr.Noushad to the

             complainant

Ext.A6          -  Copy of the lawyer notice dated.11.04.2017 sent by complainant’s counsel

             to the opposite party

Ext.A7          -  Postal Acknowledgement card dated.12.04.2017 duly signed by the 1^st

             opposite party

Exhibits marked on the side of Opposite parties

Nil

Witness examined on the side of complainant

Nil

Witness examined on the side of opposite parties

Nil

Cost  

          Rs.2,000/-