CC/570/2016
Date of filing : 30.11.2016
Judgment dt.14.8.2019
Mr. Ayan Sinha, Member.
This is a complaint under Section 12 made by Sri Apurba Kumar Jana, son of late Dharani Dhar Jana of Mayur Apartment, Flat No.9, Second floor, 33, Banamali Naskar Road, Kolkata-700 060, Dist.-South 24-Parganas against The President, Samsung India Electronics Pvt. Ltd., A-25, Mohan Co-operative Industrial Estate, Ground floor, Front Tower, New Delhi-110 044(OP No.1), The Manager, Samsung India Electronics Pvt. Ltd., Sumangal Building, 10A, Lee Road, Near Exide, Kolkata-700 020 (OP No.2) and Sales Emporium (South) 226, Diamond Harbour Road, P.S.-Parnasree, Kolkata – 700 060 (OP No.3) praying for directions upon the OPs to restore the New A. C. Machine along with Rs.50,000/- as award and Rs.5,000/- as litigation costs.
Facts in brief :
The Complainant purchased one Samsung Split A.C.Machine from OP No.3 vide memo No.CR/04400/1/2013-2014, dt.28.1.2014 by paying Rs.35,800/- and the same was installed at Complainant’s flat on 5.3.2014.
As stated in the complaint petition, the said A.C.Machine got out of order firstly on 16.4.2015 and against the lodged complaint at Samsung Customer care, the mechanics of OP No.1 & OP No.2 came on 21.4.2019 for examination of the machine. They told that the condenser is in disorder which is also within the warranty period and thereafter took the A.C.Machine to the Service Centre for repairing. The OP No.1 & 2 demanded Gas Charges, Capillary tube, labour charges, service tax, transport charges amounting to Rs.2,789/- and so the Complainant paid the money despite raising strong objections since the OPs are unable to repair. The said A.C.Machine went out of order after 3 months i.e. on 3.12.2015. Again the mechanics of OP No.1 & OP No.2 came and took the machine for repairing. T he OP No.1 & 2 sent an estimate of Rs.9,443/- for repairing. The Complainant paid the above said money and thereafter, the said A.C. was installed on 2.6.2016. Again on 29.8.2016 the A.C.Machine was out of order and the mechanics of OP NO.1 and OP No.2 came for examination of the A.C. Thereafter the OP No.1 & OP No.2 did not take any steps for repairing. As alleged by the Complainant in his petition of complaint that OP No3 sold defective and old A.C. model and installed the same after 32 days from the date of booking for which the Complainant had to pay twice for this faulty A.C.
Thus the Complainant filed this case.
Notices were served upon OPs. OP No.3 contested this case by filing written version and denied all allegations made out in the complaint petition stating, inter alia, that they are dealer and not a manufacturer or a service centre, as such they are not liable for any defects and prayed for dismissal of this case.
OP No.1 & OP No.2 did not contest this case by filing written version and so the matter was heard ex-parte against them and so they preferred a revision vide No.RP No.46/2017 and the Hon’ble SCDRC was pleased to pass an order directing OP No.1 & 2 to file written version along with cost of Rs.20,000/- to be paid to the Complainant. But, OP No.1 & 2 did not pay the cost and so the case proceeded ex-parte against them. Both the parties adduced their evidences. Both the Complainant and the OP No.3 filed BNA.
Points for determination
(i) Whether there is any deficiency of service on the part of OPs.
(ii) Whether the Complainant is entitled to the relief as prayed for.
Decision with reasons
Both the points are taken up together for a comprehensive discussion.
On perusal of the records in file and the originals, there is no doubt that the Complainant has purchased one Samsung Split A.C. from OP No.3 vide Memo No.CR/04400/1/2013-2014 dt.28.1.2014 for an amount of Rs.35,800/- with free installation. The same was installed at Complainants flat on 5.3.2014 and a money receipt of Rs.2,150/- was issued by Simran Services. The Complainant has filed two copies of acknowledgement service request issued by OP No1 & 2 from where it appears that the Complaint was lodged and twice he paid money to S.N. Enterprise, exclusive Samsung Service Centre i.e. Rs.2,789/- on 26.5.2015 and Rs.9,443/- on 30.3.2016. On perusal of the warranty card of OP No.1 & 2 which is duly stamped and signed by OP No.3, it appears that the warranty for the A.C. is for 12 months and the warranty for compressor is for 60 months. We have also observed although the A.C.Machine was purchased on 28.1.2014 but the same was installed on 5.3.2014 as per the cash receipt No.1602 dt.5.3.2014 issued by Simran Services. OP No.3 has not explained why there had been delay in installation for 32 days approx.
Firstly, no buyer will expect that after purchasing a split A.C.Machine for Rs.35,800/- will go out of order immediately after 1 year.
Secondly, even though he has paid money twice to the mechanics against receipts and estimate of OP No.1 & 2 for repairing, it is understood that the Complainant did not get relief as the mechanics were taking the A.C.Machine to the workshop on repeated times. However, no expert opinion report has been filed by the Complainant also to prove that the A.C. suffered from inherent defect.
In this matter, we have relied upon the order of Hon’ble NCDRC in Sushila Automobiles Pvt. Ltd. vs Dr. B. N. Prasad [MANU/CF/0076/2010] “makes it clear that the Complainant has to prove by cogent, credible and adequate evidence supported by the opinion of an expert that the vehicle suffered from inherent manufacturing defect”. Similarly, in the case of classic Automobiles VS LILA NAND MISHRA & ANR [I(2010) CPJ 235 (NC)] it is stated that the onus to prove the manufacturing defect was on the Complainant and further, it was necessary to obtain expert opinion before saying that there was manufacturing defect.
Moreover, the Complainant has used the A.C. for 12 months where the comprehensive warranty has expired except the warranty for compressor is for 60 months. So, keeping in view of the above, judgments passed by Hon’ble NCDRC, prayer for replacement of the A.C. cannot be allowed.
Now coming to the written version of OP No.3 as stated by them, that they are dealer and are not liable for any after sales service. On perusal of the warranty card of OP No.1 & 2 it is clear that the same has been issued by OP No.3 with seal and sign. OP No.3 cannot shirk off their liability after selling the product, who is a dealer.
In this matter, we have relied upon order passed by Hon’ble NCDRC in TATA MOTORS VS RAJESH TYAGI, where it is held “ It is the bound duty of both the manufacturer and the dealer to attend to the said defect and make it a defect free vehicle”.
Even though there is no material that there was inherent manufacturing defect in the A. C. Machine, but there was defect which is evident from the very fact that the mechanics of the OP No.1 & OP No.2 had inspected and repaired several times but still the defect could not be removed.
Since the services were hired by the Complainant from OP No.1 & OP No.2, so we are of the view that there was deficiency of service on the part of all the OPs and the Complainant is entitled to the reliefs as prayed.
Complainant has also prayed for compensation of Rs.50,000/- and litigation cost of Rs.5,000/- which is exaggerated.
In our view if a direction be given upon OPs jointly and severally to remove the defects of the A.C. Machine without charging any extra costs and install the same at Complainant’s address after repairing the alleged A.C. Machine ASV125PBB along with compensation of Rs.20,000/- and litigation cost of Rs.3,000/- justice would be served.
Hence ordered
CC/570/2016 be and the same is allowed on contest against OP No.3 and ex-parte against OP No.1 & OP No.2
The OPs are directed to repair the Samsung A. C. Machine Model No.ASV125PBB as per Memo No.CR/04400/1/2013-2014 dt.28.1.2014 and install the same within 30days at Complainant’s address at free of all costs.
The OP No.1, 2 & 3 are jointly and severally further directed to pay Rs.20,000/- towards compensation to the Complainant along with litigation cost of Rs.3,000/- within the aforesaid period.
