BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No14/2016

Dated this the 13^th day of April 2018

(Date of Institution: 33.03.2016)

S. Vinayagamoorthy, son of Subbarayan

No.10, Anna Street, Govindapet, Muthiraiyarpalayam

Puducherry – 605 009 represented by Power of Attorney

Subbarayan.

….     Complainant

vs

1. The Proprietor

     Darling Digital Worlds

     No.43, Villianur Road

     Pavazha Nagar

     Puducherry – 605 005.

2. The Manager

     Customer Care Centre

     MIRC Electronics Ltd.,

     Onida House, G-1, MIDC

     Mahakalai Caves Road

     Andheri (East), Mumbai – 400 093

3. Onida Service Centre

    Rep. by its Authorised Signatory

    No.6, Iyyanar Koil Street

    Iyyanar Nagar, Puducherry – 605 013.

                                                          ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B., 

MEMBER

Tmt. D. KAVITHA, B.A., LL.B.,

           MEMBER

FOR THE COMPLAINANT:  Party in person           

FOR THE OPPOSITE PARTIES: OP1 – Ex. Parte.  

(M.V. Ramachandramurthy, Advocate filed

Vakalat)

                                                         OP2 and OP3 – R. Mugundhan, Advocate

O R  D  E  R

(by Thiru A. Asokan, President)

              This is a complaint filed by the complainant u/s 12 (1) of Consumer Protection Act for ;

1. Directing the Opposite Parties 1 and 2 to replace the Onida AC with a new one;
2. Directing the Opposite Parties to pay a sum of Rs.2,00,000/- for the mental agony and monetary loss caused to the complainant;
3. to pay the cost towards this complaint.

2.  The case of the complainant is as follows:

          The complainant purchased Onida Air Conditioner from OP1 on 25.07.2015 for Rs.30,000/- by paying Rs.10,300/- in cash and the balance by way of availing loan from Bajaj Finance.  Despite agreement to install the Air Conditioner on the same day of purchase, the Air Conditioner was installed in his house on 01.08.2015.  On 08.08.2015 when he switched on the AC, the AC did not work.  The matter was complained to OP1 who informed that the matter may be complained to OP3 Service Centre.  Despite pursuing the matter with OP1, only on 24.08.2015 two persons from OP3 came to his house and took some parts from the Non-functional AC.  15 days later, again two persons came from OP3 and took the warranty card and some more parts from the AC machine on 08.09.2015.  The matter was complained to OP1 and OP3 from time to time.  There was no response from either of them.  They refused to replace the non-functional AC with a new one.  Hence the complaint after sending notice to the Opposite parties which did not evoke any positive response.

          3. The first opposite parte remained absent and set ex parte. 

4. The reply version filed by the OPs 2 and 3 briefly discloses the following:

          The allegation in the complaint that two persons from OP3 came to the house of the complainant to attend the non-functional AC, took away some spare parts and warranty card is not true.  If any authorised person from the service centre is deputed, they would give a job card duly signed by the authorised service person and the customer would be given a copy of the job card.  There is no deficiency of service or unfair trade practice committed by OP2 and OP3.  If there is any defect, in the AC machine, the complainant should have called the Toll Free Number or call centre number given in the warranty card and the complaint would be referred to the local service centre and the grievance of the complainant would be attended within 24 days.  The complainant did not resort to the above said complaint Redressal mechanism, but has chosen to file this vexatious complaint before this Hon'ble Forum.  Hence, the prayer to dismiss the complaint. 

 5.      On the side of the complainant, the Expert only examined as court witness and Ex.X1 was marked through him.  The complainant did not let in any oral evidence, however, Exs.C1 to C9 were marked on consent.    On the side of the opposite parties, one Thirumurugan, the Service Manager of OP2 company was examined as RW1, however, no document was marked through him. 

6.       Points for determination are :

1. Whether the Complainant is the Consumer?
2. Whether the opposite parties attributed any unfair trade practice and deficiency in service?
3. To what relief the complainant is entitled for?

7. Point No.1:

          The complainant has purchased an Onida Air Conditioner from the first opposite party manufactured by second opposite party on 25.07.2015 for Rs.30,000/- vide Ex.C1 the photocopy of Sales Invoice.  The third opposite party is the service provider.    Hence the Complainant is the Consumer for the opposite parties as per the Consumer Protection Act.

          8.  Point No.2:

We have perused the complaint, Exs.C1 to C9, and the evidence of Expert / the Court witness.   We have also perused the reply version filed by the second and third opposite parties and the evidence of RW1.  The first opposite party and their Counsel remained absent and hence, the first opposite party is set ex parte.    

          9. The complainant alleged that he purchased one Onida  Air Conditioner from the first opposite party vide Ex.C1 on 25.07.2015 with a condition that the same should be installed on the same day.  But, the first opposite party failed to do so and on 01.08.2015 two persons from OP3 came and installed the Air Conditioner.  On 8.8.2015 when the Air Conditioner was switched on, it was not working.  The father of the complainant informed the same to first opposite party who in turn sent him to lodge a complaint before third opposite party.  The complainant alleged that only on 24.08.2015 two persons from third opposite party came to his house and took some parts from the Air Conditioner and after 15 days, i.e. on 08.09.2015 again two persons came from third opposite party and took the warranty card and some more parts from the AC machine.  Since the complainant did not get proper response from the first and third opposite parties, he sent a letter dated 10.10.21015 through courier as per Exs.C2 and C3 for replacement of another Air Conditioner.  Though the said letter was acknowledged through Ex.C4, the first opposite party did not care to even sent a reply.  Hence, on 05.11.2015 the complainant sent legal notice Ex.C5 to the first opposite party which was also acknowledged by them vide Ex.C6, they did not care to send any reply or come forward to replace the Air Conditioner.   The complainant also sent notice Ex.C7 to the second opposite party, but there was no response from the.  Therefore, the complainant preferred this complaint.

          10. On the other hand, the opposite parties 2 and 3 alleged that they are not aware of the oral and written correspondences between the complainant and the first opposite party and the complaint dated 05.11.2015 is in Tamil.  The complaint should be made to the toll free number or the call centre and the same would be referred to the local service centre and the grievance would be addressed within 24 hours and   instead of doing so, the complainant has filed this complaint before this Forum.  Since there is no deficiency in service or unfair trade practice on their part, the complaint is liable to be dismissed. 

11.     This forum has carefully perused the materials available on record.  The complainant alleged that within a few days of purchase, the Air Conditioner was not working properly.  The first opposite party did not appear before this Forum and not refute the allegation of the complainant.  The person who appeared and deposed on behalf of the OP 2 not stated any reason for non-functioning of the Air Conditioner.  The OPs 2 and 3  have simply stated in their evidence that they do not know the purchase of Air Conditioner by the complainant and the installation was made by OP3.  Further, alleged that they have not received any intimation about the non-function of the Air Conditioner and about the taking back of the two components  and the warranty card by the persons from OP3.  This Forum perused the Exs.C2, C5 and C7, the written complaints in respect of the defect in the Air Conditioner sent by the complainant to the first and second opposite parties about non-function of Air Conditioner.  Even after receiving the Exs. C2, C5 and C7, the opposite parties had not given reply and not come forward to identify and rectify the defects. 

           12. In order to ascertain whether the Air Conditioner having defect as alleged by the complainant, this Forum appointed an Expert for inspection of the alleged Air Conditioner.  The Expert visited the house of the complainant after due notice to the parties and filed his Report Ex.X1 stating that the indoor and outdoor units are running, the power board is not working properly.  The Expert also stated that the  area is facing low voltage problem and outdoor unit installation is too long from the indoor unit".  The Expert was examined as Court witness who in his cross examination by the complainant stated that "Due to power fluctuation and low voltage in the complainant's house, the indoor power panel not functioning properly."  But, he has not produced any records to show that there was power fluctuation in the complainant's house.  Further, the Expert in his evidence has stated that he had enquired the neighbours in that area and somebody told that there is power fluctuation and also low voltage persist in that area.  The Expert admitted that he has not received any report from the Electricity Department in respect of the power fluctuation.  Therefore, without any report from any authority, the hearsay report is not taken into consideration.    But, on perusal of Ex.C1 the bill, the Air Conditioner was sold along with a Stabilizer and the same would protect the unit from any electrical fluctuation.  Furthermore, since the product was purchased on 25.07.2015 the defect was pointed out on 8.8.2015 and subsequent dates, the same is covered under warranty period.  Until and otherwise, it is established by the opposite parties that the damages caused due to unforeseen circumstances to any of the parts, in our view, the opposite parties liable to rectify the defects noticed by the Expert.      

13. From the facts narrated above and from the Expert's opinion, this Forum observed that the power board is not working properly even with the help of Stabilizer that too within short span of purchase and installation i.e. within 15 days causing mental agony to the complainant.  The complainant also not used the Air Conditioner and the Opposite Parties have not rectified the defects till date.  The purpose for which the Air Conditioner purchased by the complainant was not served.  The opposite parties also not cared about the request made by the complainant.  Hence, to meet the ends of justice, this Forum comes to a conclusion that the opposite parties not only have committed negligent act,  deficiency in service, but also indulged in unfair trade practice which subjected the complainant to undergo mental agony and monetary loss and hence, it is held that the complainant is entitled  to get back the money which was paid by the complainant for the purchase of the Air Conditioner and for compensation and the opposite parties are liable for the same.

14.  POINT No.3:

          In the result, the complaint is hereby allowed and the OPs are jointly and severally directed

1) to return back the amount of Rs.30,000/- to the complainant towards the cost of defective Air Conditioner and get back the Air Conditioner with Stabilizer after compliance of this order;

2) to pay a sum of Rs.10,000/- as compensation for the loss, hardship and mental agony suffered by the complainant due to deficiency in service and unfair trade practice of Opposite Parties. 

          3) to pay a sum of Rs.5000/- towards cost of this proceedings. 

Dated this the 13^th  day of April 2018.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

MEMBER

COMPLAINANTS' WITNESS: NIL

COURT WITNESS:

16.10.2017           S. Murali, Vocational Instructor      

OPPOSITE PARTY'S WITNESS:

RW1           17.01.2017           Thirumurugan

COMPLAINANTS' EXHIBITS:

Ex.X1                   21.07.2017           Inspection Report issued by Court Witness

OPPOSITE PARTY'S EXHIBITS: NIL

LIST OF MATERIAL OBJECTS:  NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

(D. KAVITHA)

MEMBER