This is an application u/s.12 of the C.P. Act, 1986.

          The complainant by filing this case states that he purchased a ‘Hitachi Split A.C.’, Model Hitachi RAC 318 KSDCH/1.5 Ton split A.C. for a total price of Rs.36,500/- on 30-08-2013.  The amount was paid through cheque.

          After receipt of full amount, the OP1, Great Eastern Appliances Pvt. Ltd. did not deliver the A.C. machine on the scheduled date on 30-04-2013.  Instead, the same was delivered to the complainant’s address two days late.  The men from the outlet to install the machine on 11-05-2013.

          After installation it was observed that the machine has not  adequate cooling effect.  Immediately the OPs were informed vide complaint docket no.13070800015 dated 08-07-2013.

          The OPs came to inspect the said machine and informed that the AC machine has not sufficient gas.  That is why, the problem has occurred.  The OPs filled up the gas so that the machine can work properly.  But to the complainant’s utter surprise, the AC could not work properly.  Men of OP1 filled up the gas, but the room was not as cold as it should be.  So, another complaint was lodged vide complaint docket No.13071101495 dated 11-07-2013.  OP1 stated that they would send the staff to inspect the condition of the AC on the next day, but no body turned up.  After 4 days of filling up gas, the machine completely stopped working.

          The complainant tried repeatedly to contact the OP1 over phone, but he was not attended to.  At last the complainant succeeded in contacting the OP1 and told him to replace the machine within fifteen days.  The complainant did not take any step regarding the replacement of AC.

          The complainant sent legal notice on 23-07-2013, 17-08-2013 and 29-08-2013 for the replacement of the said machine by a new one or refund of the entire consideration value of the split AC along with interest.

          Once in the month of July, men of OP1 came to the complainant’s house and somehow started the machine.  But this time also the repair did not yield satisfactory result.

          As per the complainant’s version, the OP1 sold defective irreparable, second hand AC machine for their material gain within few months of installation, the machine completely stopped working.  The AC became rusted day by day.

          The complainant holds that the OP1 sold defective and second hand machine.  So, it becomes the responsibility of OP2 to keep the AC machines in good condition at least till its warranty period.  The same responsibility also goes to their manufacturer for its repair, replacement or refund.  As the                            condemned AC machine was sold to the complainant, the complainant asks for either repair or replacement of the same or refund of the value of the AC machine along with interest  at the rate of 18 percent  p.a..  The OPs are liable to pay the complainant Rs.20,000/- as compensation for harassment, mental agony, pain, financial loss of the complainant.  because the OP through e-mail dated 08-07-2013 and 11-07-2013 committed to look into the matter by sending the same to the appropriate authority but they failed to keep their commitment.

          In the written version OP1 states that complaint was lodged on frivolous motivated ground formed with concocted stories.

          The complaint is not maintainable in the eye of law.  The complainant has not approached before the Forum with clear hands.  The complainant tries to mislead the court suppressing material facts.

          OP1 states that he is a mere seller of AC machine.  OP1 is a retail seller of electronic item manufactured by reputed manufacturers.  He was not aware of manufacturing defects.

          That the complainant called the OP1 for several times, but they were reluctant to attend the complaint is a false submission and OP1 always guides its customer by providing particulars of nearby service centre’s to contact for defects.

          The complaints are made for drawing sympathy of the Ld. Forum.  The OP1 is a reputed retail seller.  His motto is to satisfy the customers to the fullest extent.  In this case also, there was no exception so all are false allegations.  Because in all cases it is found that if any defect is detected in a machine the sellers are held liable such allegations are made against OP1 for damaging his reputation.

          OP1 is not in a position to admit that there is any deficiency in service on the part of OP1.  So, OP1 wants his name to be expunged from the complaint petition.

          OP2 also tries to evade his responsibility OP2 states that the instant complaint is harassive, mala fide, false and frivolous.  This is a baseless allegation against the OP2.  The complainant files this complaint only to deface the image of OP2.  So, OP2 wants the complaint to be dismissed.

          OP2 states that after hearing the complaint of the AC machine OP2 sent his men.  They filled up gas.  AC restarted.  Again the said machine did not work properly.  OP2 took up the matter and men were again sent to the complainant’s house.

          As per version of OP2, his men visited the complainant’s house on 11-07-2013 after second complaint was lodged.  At that time the machine was working properly.

          The complainant was lodged for getting another new AC machine but defective AC machine was not sold as the machine was in good condition.   Some technical problems were detected, but had been repaired by the men of OP2 and the problems were due to the mishandling of the said machine by the complainant.       

          In the circumstances, OP2 submitted that the Ld. Forum should dismiss the complaint with exemplary cost u/s.26 of the C.P. Act, 1986.

          OP2 also submits that u/s.13(4)(iv) of the C.P. Act, 1986, proper test report from appropriate laboratory is required for proper adjudication of the matter.  Then only condition of the AC would be assessed properly.  Before that the complainant’s contention that a second hand old machine was sold to the complainant, is not tenable.

Decision with Reasons

On an indepth study of the complaint and the written version and also considering the materials on record and on overall evaluation argument as advanced by the Ld. Lawyers of both the parties it is clear that the complainant purchased one 1.5 ton Hitachi Split AC machine from the OP1 on 30-04-2012 but the machine was received on 02-04-2014 and after completion of electrical works the machine was installed on 11-04-2014 and from the very beginning AC did not work properly as alleged by the complainant but it is equally true that as and when the complaint was lodged by the complainant the mechanic of the OP2 appeared and regularized the said AC machine after removing all defects and filled gas and machine worked properly but main contention of the complainant is that he is not satisfied with the cooling system because it is effectively not cooling the room and that matter was also reported to the OPs and as per OP’s version, OP sent their men who monitored and regularized the matter and they found that the AC was running well but anyhow the complainant has alleged that it is a defective AC machine sold to him though full payment was made so the complainant prayed for other refund of the said amount that is the price of the AC machine or alternatively to replace a new one.

          Truth is that OP2 has tried to convince that there was no defect, no technical fault and it was running well but most interesting factor is that OP has failed to produce any paper in support of satisfaction of the complainant regarding running of the said machine and after such repair no such certificate was issued by the OP in favour of the complainant to substantiate that complainant was satisfied on each occasion that his machine was running well after repair and monitoring and no such certificate has been issued by the OPs at the time of selling that it was a defect free AC machine and OP has not produced any job card before this Forum to show that after each repair in the job card complainant signed and OP’s mechanic certified that it was completely defect free no such treatment sheet is produced along with w/v and evidence to show that the said machine was performing and working well and giving service as defect free in all respect so apparently OP1 as dealer and seller of the article and OP2 as manufactured of the said article have failed to produce any such certificate to show that the said machine is defect free and they inspected it and checked it by their expert at any point of time.

          After considering the whole facts and circumstances, it appears that the purchaser must not have to file any complaint if he is not satisfied of the work of the article what he has purchased and in this case it is found that on so many occasions the said AC machine created many problems which was found by the complainant and that was reported to the OPs1 and 2 and no doubt OP2 sent their mechanic at several occasions then question is for what reason after purchasing said AC, one after another occasion why the purchaser sent information to the seller and the manufacture for repairing the said machine that means machine is not giving proper service to the complainant since inception for which complainant again and again made complaint and one after another the technical problem and defect were cured by the OP but ultimately complainant’s room is not being cooled that means system is defective but OP has failed to produce any paper to show that their mechanic went to the house of the complainant and repaired with care and after satisfaction complainant signed on it.  So, it is clear that there is/was deficiency and negligence on the part of the OPs jointly.  But truth is that both OPs have failed to produce any certificate to the effect that the machine was inspected and checked by the manufacturer, mechanic and engineers and they have issued certificate in favour of the complainant that there was or is no defect in the said machine at present and for non-production of the said certificate we are convinced that complainant has rightly proved that the deficiency and negligence on the part of the OP and also defect of the said machine and when complainant just after purchase, for so many problems OP sent his mechanic for repair and regularize the said AC machine that means defect was there and for which one after another complaint was lodged by the complainant and OP failed to send their mechanic to regulate but no defect free certificate is submitted by the OP as yet before the Forum which is must for satisfying us to conclude that after securing complainant’s signature in each occasion by repairing the defects complainant was satisfied but anyhow OPs have failed to produce then it is clear that said machine is not a defect free machine but defects are their for which OPs have tried to say that the expert report is highly required but expert report is not required in this case because manufacture OP2 in this case ought to have checked the same with the help of their engineers, experts or any persons as per the complaint in each occasion on call by the complainant but truth is that they have failed to produce that all these defects are not the defects of the machine but it is technical fault due to mal-handling by the complainant. In the light of the above observation we are convinced to hold that complainant has proved all the allegations against the OPs about gross negligence on the part of the OPs and also about the defect and also rightly pointed out the bad quality and goods and its irregular even abnormal function and fact remains OPs have failed to satisfy the complainant’s grievance as yet and another factor is that new AC machine was purchased by the complainant from the OP1 being dealer of Hitachi Company but truth is that just after purchase OPs changed the gas because sufficient gas was not in the machine that means it was defective from its inception and it is also proved that before selling the same no inspection and check report was submitted by the OPs to the complainant about its quality and moreover there is no such remark with the machine regarding the certificate of checking and inspection made by the OP2 manufacturer about its qualitative and quantitative approach of the machine after installation but even after certain repairing AC is not working but OPs have failed to produce any document to show that they appeared before the complainant’s house on several occasions and by repairing and by filing gas etc. and thereafter complainant was satisfied about functioning and ultimately no defect was found but no such document is yet produced so laches and negligence and deficiency in service on the part of the OP is well proved at the same time such sort of selling of article of the manufacturer without any inspection or check report about the selling of the same through dealer is no doubt an unfair trade practice and for which complainant has been suffered much as yet and accordingly, the unfair trade practice on the part of the OPs are well proved.

          No doubt the OP1 is a reputed name in the field of electronic goods.  Prople visits this outlet for getting adequate information regarding goods.  The men of OP1 are not cooperative and helpful at all.  When the complainant is not satisfied with the functioning of the AC machine, he calls OP1 for reporting the matter.  But the OP’s did not pay any heed to the complainants’ call.  It is the duty of OP1 to receive the complainant’s call and help him as much as possible in this regard.  Because within few days of purchase, the AC has no cooling effect.  Once the goods is sold, the responsibility of seller is not finished but OP1 must help the purchaser to solve his problem.  Such unmerchantable attitude from OP1 is not expected by a complainant who bought the machine with full payment through cheque.

          After purchase of the AC machine, the machine has developed problems.  So, the condition of the complainant can easily be imagined.  He makes several calls so that the OPs visit his house and solve the problem.  But the OPs were not much careful and responsible.  So, the complainant suffers mental pain and agony but the OPs are too negligent to understand the complainant’s condition.

          The complainant called for several times for the repair of the machine.  When the AC was disturbing and the OPs could not make it defect free even after repair so the complainant told the OPs to replace the machine.  But the OPs have no intention to replace the machine, though they know that the machine has some problem.  And it could not work.  Knowing fully well, the OPs neither replaced the machine, nor money was refunded.  On the contrary, they alleged, that the machine was not working due to mishandling.  If machine stopped working due to mishandling, it would be possible to make defect free but conceal their fault, they alleged against the complainant and no doubt OPs harassed for several times and the OPs did not issue defect free certificate to the complainant only on the ground that OPs failed to repair the AC machine properly.

          Though the complainant was informed through e-mail that they would look into the matter seriously and do the needful but they did not keep their commitment.  So, the OPs must be penalized for their negligent and deficient manner of service. 

          As OP1 is the manufacturer, he cannot skip the responsibility.  When he sold the machine, through the dealer OP1 and it is the duty of the manufacturers to see whether the article has any problem or not after selling.  They should help the customers as responsible seller and manufacturer with a good gesture which they shall show when machine is sold to the customers.

          The complainant’s main contention is to get the machine repaired if it is not possible, he wants the refund of the sum of Rs.36,500/-.  But the OPs are not interested to attend the complainant properly.

          It is the responsibility of OP2 to contact with those persons again and to arrange for repair.  But nothing was done on the part of OP2.

          It is unthinkable that a new AC machine worth Rs.36,500/- would be out of order within two months of its installation and the OPs instead of replacing the defective one with a new machine, they made allegations against the complainant so that they would not have to pay back of value of AC.  It is a tricky and deceptive practice on the part of the OPs who hardly saves the interest of the complainant.

          The AC machine was not working adequately, so the Ops were informed.  They told that gas was not filled in adequate volume at the outdoor unit.  Such problem is not expected from the OPs.  The complainant bought the machine after full payment.  He can expect a good machine. But the machine was defective from the time of installation.  The OPs ought to have paid the amount back because they fail to provide a good machine.  General people do not know about the manufacturing defects of AC and such ignorance is natural.  The OPs ought to have been careful while selling the machine.  They should check it properly but nothing is done by the OPs and even do not want to replace the machine or refund the money to the complainant in the present situation also when deficiency and negligence and deceptive manner of trade practice by the OPs are proved.

In the result, the case succeeds.

Hence,

Ordered

That the case be and the same is allowed on contest against both the OPs with a cost of Rs.10,000/- (Rupees Ten thousand only).

          OPs are jointly and severally directed to pay back the full amount of the AC i.e. Rs.36,500/- (Rupees Thirty six thousand five hundred only) to the complainant.

          The OPs are also further directed to pay compensation amounting to Rs.10,000/-(Rupees Ten thousand only). for causing harassment, mental pain and agony to the complainant.

          The OPs are also directed to pay Rs.15,000/-(Rupees Fifteen thousand only) for adopting unfair trade practice to this Forum.

          The OPs shall have to comply the order strictly within 30 (thirty) days failing which for each day’s delay and disobedience of the Forum’s order OPs shall have to pay punitive damages  at the rate of Rs.200/- per day till full satisfaction of the decree and if OPs are found reluctant to comply the Forum’s order in that case penal proceeding u/s.27 of the C.P. Act, 1986 shall be initiated against the OPs.