Order-16.
Date-25/04/2017.
Shri Kamal De, President.
This is an application u/s.12 of the C.P. Act, 1986.
Complainant’s case in short is that, Complainant purchased one set of Daikin Air Conditioning machine being AC Machine No. Daikin-AC-1.5T 3S-FTC50QRV16 (IN) 1 piece, manufactured by Daikin Air-Conditioning India Limited (OP-1) for a total sum of Rs.34,990/- on 30.03.2016. The petitioner paid Rs.6,998/- to OP-3 and the balance amount of Rs.27,992 was financed by Bajaj Finserv, OP-5 to be paid the Complainant on monthly installment at the rate of Rs. 2,961/- per month by ECS through Bank of India. The said Air-Conditioning machine was also installed at the address of the Complainant as stated in the petition of the complaint on 31.03.2016 by OP-4 being the men of Agent of OP-3. After installation of the same the Complainant found that the said machine is not functioning well. The Complainant contacted OP-3 and 4. The men of OP 4 came and tried to correct or repair the faulty AC machine, but the said AC Machine could not be corrected. The said AC Machine failed to chill the room. The Complainant thereafter made complaint to OP-1 on 06.04.2016. The Mechanics of OP-1 came and tried to repair the said AC Machine but failed to correct the faulty Machine. On 12.04.2016 two mechanics of OP-2 being service provider of OP-1 came and tried to repair the AC Machine but failed. It is alleged that the Machine is a defective one and the OPs have been deficient in rendering services to the Complainant and have indulged in unfair trade practice.
It is also alleged that Complainant has informed the OP-5, Financer, but to no good.
It is stated that the Complainant is not liable to pay any further instalment in respect of the said Machine to OP-5 until the scheduled defective Machine is replaced by a good/corrected AC Machine of the same brand. Complainant has prayed for replacement of the subject AC Machine along with other reliefs. Hence this case.
OP-1 has contested the case inn filing w.v. contending inter alia that the case is not maintainable in fact and in law. It is stated that the Complainant himself has agreed to the jurisdiction at Delhi by virtue of terms and conditions of the warranty card, as such, the case is not maintainable in the Forum at Kolkata. It is stated that the subject AC Machine was installed by unauthorized agent and the answering OP is not liable for the act of unauithorised installation which is in breach of the terms and conditions of the warranty as mentioned in the warranty card. It is stated that the Complainant is not an appropriate agency to determine any defect or so-called manufacturing defect and it requires specialized technical and check up to determine by sending an appropriate agency only. It is stated that on inspection it was detected that there was gas leakage which had occurred because of faulty installation. This faulty installation was done by some unauthorised personnel in breach of terms of warranty. It is stated that this OP as a gesture of goodwill filled the gas after which his AC is working apparently fine. It is also alleged that the Complainant was adamant in replacement of present Machine along with atrocious demand of compensation which is not legally tenable. This OP has denied deficiency of service or unfair trade practice. This OP has prayed for dismissal of the case.
OPs 2, 3 and 4 have not contested the case and the case has proceeded ex parte against these OPs.
OP-5 however, has contested the case contending inter alia that the case is not maintainable either in fact or in law. It is stated that the Complainant entered into a loan transaction with OP-5 vide agreement No.410CD1235318 dated 06.04.2016. The loan amount financed was Rs.34,990/- for a contract of 19 months, rate of interest 0.0 percent and monthly EMI fixed to be paid by Rs.3,449/-. It is stated that the Complainant had issued ECS mandate for the instalments and instalment no. 2,3,4,5,6 and 7 got dishonored due to reason of ‘insufficient fund’ and as a result an amount of Rs.56336 stand due and the same is also getting reflected in the statement of account. It is submitted that OP No. 5 is not an agent of OP No. 1,2 and 3 and OP No. 5 being the Financer is not at all responsible or liable for vicarious liability. This OP has prayed for dismissal of the case for non-payment of balance amount.
Point for Decision
1) Whether OPs have been deficient in rendering services to the Complainant?
2) Whether the Complainant is entitled to get the relief as prayed for?
Decision with Reasons
We have perused the documents on record i.e. photocopy of Tax Invoice of OP No. 3, photocopy of Bill of Chowdhury Enterprise (OP-4), photocopy of service completion certificate of OP-2 and photocopy of other documents on record.
It appears that OP No. 1 is the manufacturer of the subject AC Machine. OP No. 2 is the service center of Daikin Air Conditioning Pvt. Ltd.. OP No. 3 is Raipur Electronics Pvt. Ltd. from where the Complainant purchased the AC Machine, but it is not an authorized dealer of OP- 1, OP-4 is Chowdhury Enterprise, who installed the subject AC Machine at the residence of the Complainant, but OP-4 is neither authorized nor Company associate of answering OP-1. OP-5 is financer. It appears that OP -1 has its branch office in Kolkata, within the jurisdiction of this Forum. Moreover, Complainant also obtained permission from this firm under section 11(2) (e) of CP Act. We find that OP-1 carries on business or a branch office within the jurisdiction of this Forum and the case as such is maintainable in this Forum as per Section 11 (2) (b) of CP Act.
It appears that the subject Air Conditioning Machine was not functioning after installation. OP -2 however, subsequently attended the Machine and it is stated that the Machine was working absolutely fine. Gas was also filled-in. Subsequently, the Machine also demonstrated problem as it is alleged by the Complainant. It is stated by OP-1 that there was gas leakage which had occurred due to faulty installation and this faulty installation was done by OP-4 being an unauthorized personnel. Be that as it may, the question is why a new Machine will show gas leakage and gas charging has to be done. No explanation is forthcoming from the side of OP-1 in this regard. The Complainant however, has failed to explain why he got the unit installed by an unauthorized dealer or representative. Be that as it may, the fact remains that the Machine is out of order and is not functioning since the very beginning. It only inevitable conclusion that can be inferred from the documents on record is that the Machine is defective. We think that manufacturer has to replace the Machine. On the other hand we find that the Complainant took a loan of Rs.27,992/- from OP-5. It appears that the Complainant has stopped payment to OP-5, the Financer. The Complainant by had issued ECS mandate for repayment of instalment and instalments 2,3,4,5,6 & 7 got dishonored due to reason insufficient fund. We cannot encourage the Complainant’s argument that Complainant is not liable to pay any further instalment in respect of the said AC Machine to OP-5 till AC Machine is replaced by a new one of the same brand. OP-5 is not an agent of OP-1 and OP-3and OP-5 being Financer is not at all responsible or liable for vicarious liability. In the fitness of things, we think that Complainant has to clear the dues to the Financer, OP5.
In result, the case merits success.
Hence,
Ordered
That the instant case be and the same is allowed on contest against the OP-1 and dismissed against OP-5.
OP-1 is directed to replace the subject AC Machine with a new one subject to payment of balance amount of Rs.27,992/- to OP-5 by the complainant within one month from the date of this order. O.P.-1 is also to pay litigation cost of the Rs.10,000/- to the complainant by the date fixed subject to compliance of payment of dues to OP-5.
We make no order against OPs-3 and 4.
Failure to comply with the order will entitle the complainant to put the order into execution u/s.25 read with Section 27 of the C.P. Act.
