DATE OF DISPOSAL: 01.11.2018
Sri Karuna Kar Nayak, President.
The complainant Biswa Bhanu Pattanayak has filed this consumer complaint Under Section 12 of the Consumer Protection Act, 1986, alleging deficiency in service against the Opposite Parties ( in short the O.Ps.) and for redressal of his grievance before this Forum.
2. Briefly stated the case of the complainant is that he purchased an Air Conditioner Split 1.5 ton (JS-Q 18LNUXA ) of the O.P.No.3 from the O.P.No.1 on 23.3.2017 for Rs.39,000/- vide retail invoice no. 94/23.3.2017 with 4 years of warranty period to the compressor so also twelve months comprehensive warranty to the Air conditioner for free of charges repair or replace or replace of any defective part or parts against any defect arising out of faulty or defective or workmanship. The O.P.No.1 is having its retail shop at Rohini Apartment, infront of Chaturbhuja Petrol Pump, Berhampur, in the name and style M/s Sarf Offset (P) ltd and used to sale almost all varieties of home appliances including the distributors of LG companies too. The O.P. No.2 is the servicing centre for all appliances of LG products including the Split Air Conditioners. Immediate after its purchase, the said Air conditioned was found defective, and continued like malfunction and non-functional ever since it was installed. Upon complaints, servicing Engineers used to come and go and so called repairs were attempted and some time failed, for that assurances given several times to replace the Air conditioner but in vain, and confirmed that the Air conditioner supplied by the O.P.No.1 was having manufacturing defect and old stock also, however till now it is not functioning properly, as the so called AC does not solves the purpose of complainant since 23.3.2017 and found unutilized again. Meanwhile since its purchase the faults like non functional during day time, producing unbearable sound, condenser leakage, gas chock and lastly stoppage of cooling within the comprehensive warranty period continuous. Inspite of supplying relevant papers and personal visits of the complainants to O.P.No.1 and 2, not a single step has been taken to check the continues problem and for its replacement of the Air conditioner inspite of assurance given. This is very much unfortunate and pathetic for a consumer, to get such type of irresponsible behavior as showed by an international branded company. Moreover these problems and defects could not be rectified after several repairs made by the O.Ps since its purchase. Due to the variety of defects in the Air conditioner and to its regular nature so also with additional defects, now the AC is not functioning since 23.3.2017. Irrespective of several personal approaches and contacts made by the complainant to both the local O.Ps was made futile. Therefore the complainant has been deprived of getting justice, as neither the defective AC was replaced nor price was returned till dates. Moreover the O.P. did not pay any attention towards the complainant at all. In consequent upon, and without having any alternative the complainant issued a 7 days demand notice dated 02.05.2017 to replace the defective Air conditioner or to return the purchase price with accrued interest, which was rightly acknowledged by the O.P.No.1 and refused by O.P.No.2 and till dates neither any action nor a line of reply was received by the complainant till filing of this complaint. Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps to replace the Air conditioner in the place of a new one as the O.Ps are jointly and severally liable for the loss caused to the complainant and to pay all the legitimate claims to pay the lawful compensation for the mental agony and harassment caused to the complainant with litigation cost in the best interest of justice.
3. Notices were issued against the Opposite Parties but the O.P.No.1 & 2 neither preferred to appear nor filed any written version as such the O.P.No.1 & 2 set exparte on dated 26.10.2017.
4. Upon notice the O.P.No.3 filed version through his advocate. It is stated that the averments made in Para 1 & 2 of the complaint with regard to purchase of Air conditioner on payment of consideration on 23.3.2017and issuance of warranty being submissions based on materials on record. Complainant may be put to establish same by producing original sealed and signed invoice and warranty card. Further averments made with regard to specific terms of warranty and obligation of parties in terms of warranty, being materials on record, complainant may be put to establish same. The O.P.No.2 to be the authorized service center and O.P.No.3 are the manufacturer of the product is admitted. However, all the O.Ps are independent and separate entities, running their business in their own name and style. The averments made in Para 3 with regard to detection of manufacturing defect in the air conditioner, just after purchase, supply of air conditioner having manufacturing defect, and from old stock, non functional during day time, producing unbearable sound, condenser leakages, gas chock and lastly stoppages of cooling etc. are baseless and not supported with single scrap of materials on record and is disputed and denied by the O.P. Further averments made with regard to supply of relevant papers and repeated visit of complainant is disputed and denied in absence of any proof of delivery or any other cogent evidence. It is submitted that, complainant admitted in the Para, that whenever a complaint is lodged, same is attended by the O.Ps and the averments made in the Para itself an admission that this is not a case of deficiency in service or denial of rendering service. The averments made in Para 4 of complaint with regard to air conditioner is having variety of regular nature of defects alongwith additional defects and not functioning since 23.03.2017. O.P.No.2 confirmed air conditioner is having manufacturing defect etc. are averments not supported with single scrap of materials on record. It is submitted that consumer complaint can only be filed in an established case of manufacturing defect in goods, deficiency in service and/or unfair trade practice. While examining jurisdiction of Forum, it is required to examine all other provisions and strictly follow the procedure for proceeding on receipt of complaint, and limit its relief within the laid down provisions, in the present complaint, manufacturing defect is not established, deficiency in service is not established and unfair trade practice is not proved, which disentitles complaint to get any relief. The averments made in Para 5 and 6 of complaint with regard to issuance of 7 days demand notice on 02.05.2017 due to non attendance of complaint by O.P.No.2 is disputed and denied. The complainant never preferred to ventilate his grievance to O.P.No.3. Apart from that the averments of the Para discloses claim for replacement of refund with accrued interest is simply a ground less thereof. O.Ps always assures to repair the air conditioner in terms of warranty and never assures its replacement. Copy of the notice even not filed alongwith the complaint for examination and judicial notice by the Forum. However, complaint may be put to justify his claim in terms of warranty by producing sealed and signed copy of warranty card. Averments of the complaint which are specifically not admitted are disputed and denied. No notice is issued on O.P.No.3 and for which no part of cause of action arises against it. OP No.2 being the authorized service center for the locality attended the air conditioner and found it is working perfectly and is not having any manufacturing defect as apprehended. This is not a case of denial of rendering service on receipt of complaint by O.P.No.2, and as such there is no disputes to be adjudicated by this Hon’ble Forum and same is liable to be dismissed as no part of course of action yet arisen against O.Ps. Further averments made with regard to no steps taken for rewplafeme3nte of the air conditioner needs no comment. The averments made in Para 8 of the complaint with regard to jurisdiction of Forum to try the dispute being submission on points of law; complainant may be put to establish same by producing cogent evidence. Hence the O.P.No.3 prayed to dismiss the case.
5. On the date of hearing of the consumer complaint learned counsel for the complainant and O.P.No.3 were present. We heard argument from the advocate for O.P.No.3 at length. We perused the complaint petition, written version, citation and Written arguments placed on the case record. It reveals that the complainant has not filed any documentary evidence such as technical expert opinion, job sheet, that his AC was repaired by the O.Ps repeatedly. It also reveals from the retail invoice which is issued by O.P. No.1 to the complainant, therein it has been mentioned that “Goods once sold will not be taken back or exchanged” which amounts to unfair trade practice. Further, it reveals that inspite of notice to O.P.No.1 & 2 by this Learned Forum neither they appeared nor preferred to contest the case. As such taking the sole testimony of the complainant and materials on record into consideration the contentions of the complainant is accepted.
6. On foregoing discussion, it is clear evident that O.P.No.1 is involved in unfair trade practice and all the O.Ps are negligent in rendering proper service to the complainant. Hence in our considered view there is deficiency in service on the part of the O.Ps as such for the ends of justice the complainant is entitled to get some relief as prayed for.
7. In the result, the complainant’s case is allowed partly against the O.Ps. All the O.Ps are jointly and severally liable as such they are directed to replace the complainant’s Air conditioner Split 1.5 ton (JS-Q 18LNUXA) with a new one of same model alongwith fresh warranty or in alternative refund Rs.39,000/- i.e. the cost of the Air conditioner to the complainant within one month from receipt of this order failing which all the dues shall carry 14% interest per annum. In peculiar facts and circumstances of the case no order as to cost and compensation. The case is disposed of accordingly.
The order is pronounced on this day of 1st November 2018 under the signature and seal of this Forum. The office is directed to supply copy of order to the parties free of cost and a copy of same be sent to the server of www.confonet.nic.in for posting in internet and thereafter the file be consigned to record room.
