IN THE CONSUMER DISPUTES REDRESSAL  FORUM, KOLLAM

Dated this the  18^th  Day of  January  2020

Present: -    Sri.E.M.Muhammed Ibrahim, B.A, LL.M. President

                   Smt.S.Sandhya Rani, BSc,LL.B, Member

                   Sri.Stanly Harold, B.A,LLB, Member

                                                            CC No.98/16

Saran G.Pillai                                    :         Complainant

Smithalayam

Decent Junction P.O

Kollam-691651.

[By Adv.Thirumullavaram G.Sivasankara Pillai]

V/s

1. The Proprietor                          :         Opposite parties

         Aliyas Electronics

        P.A.Aziz Centre,

       Pallimukku

       Kollam-691010

2. The Managing Director

         Sharp Business Systems(India) Ltd.

        214-221, Ansal Tower, 38 Nehru Place

        New Delhi-110019.

        [By Adv.Asarsh.S]

3. The Manager

          Easy Clean Refrigeration

          Cantonment South, Beach Road

         Kollam-691001.

4. The Manager

          Signal Electronics

          Sishira

         Kadappakkada Nagar-1

        Opp.Ramco Cement Godown

         Kadappakkada, Kollam-691008.

FAIR  ORDER

Smt.S.Sandhya Rani, BSc,LL.B, Member

          This is a case based on a consumer complaint filed u/s 12 of the Consumer Protection Act 1986.

          The averments in the complaint in short are as follows:-

          Complainant has purchased a Sharp 1.5 Ton Air Conditioner for Rs.47000/- vide sale bill No.8227 from 1^st opposite party (who is the authorized dealer).  The 2^nd opposite party is the manufacturer, 3^rd opposite party is the prior authorized service provider and 4^th opposite party is the present service provider of the Sharp Air Conditioner.  Having been attracted by the advertisements in various newspapers and other medias about the quality, performance, guarantee, life long after care service and other facilities published by opposite parties the complainant purchased the A/C on 08/03/2014.  The said air conditioner was covered by a warranty period of one year and the compressor was covered by 5 years warranty from the date of purchase and the same was installed in the complainant’s house by a service personnel of 1^st opposite party.  After a few months of purchase, the A/C started low cooling.  Though the agents and technicians deputed by  3^rd opposite party at the instance of 1^st opposite party repaired the A/C several times free of costs and paid services the said defect persisted. On repeated request of the complainant a technician from 4^th opposite party examined the A/C  and informed that the defects were due to the absence of gas in compressor and after gas filling and repair works agent of opposite party collected Rs.2400/- from the complainant by way of service charge.  Subsequently on 25.02.2016 the technician of 4^th opposite party again came to the complainant’s residence and the indoor unit of the said A/C was removed and taken for repairs but the same was neither repaired nor given back by the 4^th opposite party so far.  Even after several repairing works done by 3^rd and 4^th opposite parties  the A/C still is defective and cannot be used.  The complainant believes that there exists manufacturing defects to the A/C and he would not be able to use the same in future also because of the manufacturing defects of the A/C and the same could not be rectified by any type of repair works.  Hence there is serious deficiency in service and unfair trade practice on the side of the opposite parties.  In the circumstances the complainant prays to direct the opposite parties either to replace the said A/C with a new one or to refund the amount collected from the complainant so as to enable the complainant to purchase a defect free air conditioner or to reimburse the value of A/C Rs.47,000/- and refund Rs.3,600/- service charges collected from the complainant and compensation Rs.25000/- for deficiency in service experienced by opposite parties and for mental agony apart from monitory loss experienced by the complainant.

1^st and 4^th opposite parties remain  exparte and the   3^rd  opposite party was deleted from the party array.   The only contesting party is 2^nd opposite party who filed version raising the following contentions. The complaint is barred by limitation.  Ext.P1 purchase bill dated 08.03.2014 and the present complaint is seen filed on 05.04.2016 which is after a lapse of one month of the period of limitation.  Moreover the complainant has not filed any petition to condone the delay of 28 days, hence the complaint is barred by limitation u/s 21(A) of the Consumer Protection Act.  According to the 2^nd opposite party it is the duty of the complainant to prove the manufacturing defects of the A/C purchased by him. The 2^nd opposite party is not responsible for the alleged service conducted by 3^rd opposite party was not an authorized agent of opposite party 2^nd  directing the relevant period and no documents regarding the above service was produced before this Forum.  Hence opposite party 2 is not liable for the alleged receipt of Rs.650/- by 3^rd opposite party. As per record the warranty provided to the compressor was only for 4 years and not for 5 years.  Opposite party No.2 would further contents that the alleged defects of the A/C was not intimated to the 2^nd opposite party.  While the A/C functioning during the warranty period the  complainant sought the assistance of unauthorized persons to cure the defects is a violation of warranty condition provided to the complainant.  It is   the  duty of the complainant to prove the defects of the A/C and  that 3^rd and 4^th  opposite parties are the authorized service persons of 2^nd opposite party.  However the 2^nd opposite party would admit that as per the request of complainant, the technicians of the 4^th opposite party refilled the gas in the compressor of the A/C and received Rs.2400/- from the complainant.  Again the complainant noticed defects in AC and 4^th opposite party attended the complaint but realised that there was no problem in the functioning of the A/C.  Thereafter as per the request of the complainant the 4^th opposite party removed the A/C and that was taken to the service centre of 4^th opposite party at Kollam and  again refilled the gas and water but the complainant resisted to pay service charges Rs.4500/-demanded by 4^th opposite party.  Thereafter as per the direction of 2^nd opposite party, the 4^th opposite party has taken the A/C to the complainant’s residence on 29.02.2016 at about  3 pm but the house was locked and no one was available there.  This matter was also intimated to the complainant  over phone as well as E-mail. 

Then the complainant intimated the 2^nd opposite party that he was not ready to take delivery of the A/C and demanded full refund of the price of the A/C  unit.  Hence the  A/C unit is still in the hands of 4^th opposite party after service and the same has no defect and is in perfect working condition and that the 2^nd opposite party is ready and willing to return the above A/C unit to the complainant without paying any service charges to the 4^th opposite party.  The complainant has used the A/C properly for more than   2 years, without any allegation of manufacturing defect or any complaints of improper functioning.  The 4^th opposite party, the authorized service agent of 2^nd opposite party at Kollam had provided efficient and timely services to the complainant.  2^nd opposite party further contents that he had not received any excess or huge amount from the complainant and also prays to dismiss the complaint. 

In the light of above pleading the points arise for consideration are:-

1. Whether  the complaint is barred by limitation?
2. Whether  the A/C purchase as per Ext.P1 bill is having any manufacturing defect as alleged in the complaint?
3. Whether there is deficiency in service on the side of opposite parties?
4. Whether the complainant, is entitled to get replaced the A/C with a brand new one or entitled to get refunded the price of the A/C and service charges paid by him.
5. Whether the complainant is entitled to get compensation as claimed?
6. Reliefs and costs?

Evidence on the side of the complainant consists of oral evidence PW1 who is none other than the complainant himself.  He proves  Ext.P1 to P5 series documents.  Ext.P1 is the retail invoice dated 08.03.2014 issued from Alias Electronics Pallimukku, Ext.P2 is the operation manual issued from Sharp Business System India.  Ext.P3 is the cash bill issued from Easy Clean Refrigeration.  Ext.P4 is the cash bill dated 17.02.2016 issued from Signal Electronics Kadappakkada.  Ext.P5 series e-mail message dated 15.07.2015 dated 10.02.2016 issued by the complainant to the 2^nd opposite party(subject to proof).

Opposite parties did not adduce any oral evidence but got marked  Ext.D1 document . 

Both sides have filed notes of argument. 

Heard both sides.

Point No.1

          One  of the main contentions of the opposite parties is that the complaint is hopelessly barred by limitation and therefore the complaint is to be dismissed on that ground. Before answering the issue it is to be considered what is causion of action. The term cause of action has not been defined in the Act but the same has to be inferred keeping in view of the context in which it has been used and also the object of the legislation as laid down by the Hon’ble  Supreme Court in V.N.Shrikhande Vs. Anitha Sena Fernandas JT 2010(11)(SC).  It is well settled that “ a cause of action means every fact which would be necessary for the plaintiff to prove inorder to support his right to a judgment of the court.  It is a bundle of facts which taken together gives the plaintiff/complainant a right to reliefs against the defendant/opposite party.  It  must necessarily include some act done  by the defendant/opposite party since in the absence of such an act no cause of action will accrue. Admittedly the complainant has purchased the disputed AC on 08.03.2014 as per Ext.P1 purchase bill and the complaint has been filed on 05.04.2016.  Period of limitation prescribed for filing the complaint under Section 24(A) of the Consumer Protection Act 1986 is 2 years from the date of which the cause of action has arisen.  Here in this case the date of purchase is not the only relevant fact to consider the cause of action. 

Here in this case the purchase of disputed AC from the 1^st opposite party is not the cause of action but it is only a part of the cause of action.  According to the complainant after a few months the complainant noticed that cooling system of the AC  was not properly  functioning .  It was informed the 1^st opposite party who deputed an agent of 3^rd opposite party who came over at the residence of the complainant and free service was done.  Thereafter on the last week of February the complainant noticed the same non cooling defect.  Hence he again informed the matter to the 1^st opposite party who deputed the 3^rd opposite party to clear the defect.  The technician from 3^rd opposite party came to the complainants residence and cleaned the unit A/C free of cost and made the complainant  to believe that the entire defects were rectified free of cost.   In fact the same defect continued and the complainant informed the matter to the 1^st opposite party again.  There upon the 1^st opposite party deputed the technician from 3^rd opposite party who came to the complainant’s residence and carry out the work and collected Rs.650/- as service charge.  After a few days the complainant noticed that the defect was not cured.  It is also clear from the materials available on record that during the 1^st week of July 2015 a technician from 3^rd opposite party came to the complainant’s residence and on the basis of the complaint lodged  by the complainant, and carried out maintenance work on the AC.  Even after repeated repair work the cooling defect continued.  Again the complainant informed the 1^st opposite party on 20.01.2016 and a technician deputed by 1^st opposite party  came and repaired the unit and realized an amount of Rs.580/- from the complainant as service charge.  It is also clear from the available materials that even after the said service the AC did not functioning properly.  Hence the complainant again informed the 1^st  and 2^nd opposite party regarding the non functioning of the disputed AC and on the basis of the repeated complaints the technician from the 4^th opposite party  who is the present service centre  came to the complainant’s residence and after making necessary inspection informed that the gas filled in the compressor was lost which was the reason for the defect.  He has also carried out certain repair work and gas was filled in the compressor on 17.02.2016 and also collected Rs.2400/- from the complainant as service charge.  But within 1 week the complainant noticed the same defect which was duly informed to 1^st and 2^nd the opposite parties.  Accordingly on 25.02.2016 the technician of the 4^th opposite party again came to the complainant’s  residence and indoor unit of the said AC was removed and taken for repairs.  It is clear from the materials discussed above that  the defect of AC  was noticed within the warranty period and the said defect continued even after free service and paid repair work and it persisted even on the date of filing the complaint.  Hence it is clear that there is continuing cause of action and therefore the complaint is within time.  The point answered accordingly.

Point No.2 to 5

For avoiding repetition of discussion of materials these 4 points are considered together.   It is clear from the averments in the complaint as well as from oral evidence of PW1 coupled with Ext.P3 to P5 series documents that the disputed A/C was not properly functioning after a few months from the date of purchase.  The oral evidence of  PW1 coupled with Ext.P5 series documents would indicate that the A/C was got repaired 8 times within a period of 2 and odd years after a few months from the date of purchase and even then the disputed A/C was not functioning properly which itself would make it clear that the same is having manufacturing defect.  Cooling the room is the sole function of the A/C and if cooling system has become defective it would not serve the purpose.  Inspite of 8 repair works carried out and refilling of gas the A/C has not become functioning.  Even according to the 2^nd opposite party the  technician deputed by 4^th opposite party has taken the indoor unit of the A/C and got repaired it.  It is true that the manufacturing defect has to be established by the complainant by getting it tested by an expert  by virtue of Section 13(1) (c) of the  Consumer Protection Act 1986.  But it is to be pointed out that in the present case even according to the 2^nd opposite party it has got some defect and the 4^th opposite party who is authorized service centre has taken indoor unit of the A/C which is the main component and got it repaired. In the circumstances the 4^th opposite party and service technician is well aware and having knowledge regarding the manufacturing defect or other defect of the disputed A/C. What would the defect of the indoor system is known to the 4^th opposite party who is keeping mum by remaining exparte.  The 2^nd opposite party who is contesting the case has not made any attempt to call for a report from the technician who inspected and noted the defect before repairing it.    In this circumstances and also in view of the allegations in the complaint that he has made complaint regarding defect in the cooling system to the 1^st and 2^nd opposite parties who deputed 3^rd and 4^th opposite parties for getting it repaired for 8 times and also in view of Section 106 of the Indian Evidence Act we are of the view that the 2^nd and 4^th opposite party are bound to establish that the disputed A/C  is free from any manufacturing defect.  In the circumstance we find no merit  in the contention of 2^nd opposite party that no expert report is available to prove that the disputed A/C  is suffering from manufacturing defect. 

It is further argued  on behalf of the contesting 2^nd opposite party that the 3^rd opposite party is not the authorized service centre and that the complainant  has failed to prove that the 3^rd opposite party is the service centre of the 2^nd opposite party.  It is further argued that Ext.P3 bill is not relevant to prove the same.  It is pointed out on behalf of the 2^nd opposite party that Ext.P3 bill would not contain any seal or signature nor the date on which  it was issued nor the date on which service was carried out.  It also would not contain a description of the defects of the  A/C.  It is true that the details of defects of the said A/C is not mentioned in Ext.P3.  Ext.P3 is seen written in the letter head and also would contain the serial number and time of repair.  The signature of the technician who conducted service is also seen stated. 

The specific case of the complainant in his complaint as well as in the proof affidavit is that after a few months  of its purchase the complainant noticed that the cooling system  of the disputed A/C was not properly functioning  and it was duly informed the 1^st opposite party.  On the basis of the above allegation made by the complainant the 1^st opposite party deputed service technician of the 3^rd opposite party claiming that it is the authorized service centre and the said technician made certain repair work and free service.  But the complaint of cooling defect has not been cured.  The same process of making same complaint and deputing technician from opposite party No.3 is continued  for several months.  They have also charged some service charges by claiming that the service has been rendered after the warranty period.  Ext.P3 is one of such bill showing that  the 3^rd opposite party has levied service charges.  Inspite of the above allegation and complaint the 1^st opposite party kept mum by remaining exparty which amounts to admission of fact stated in the complaint.  If the 3^rd opposite party was not the authorized agency the 1^st opposite party ought to have denied the same and also denied having deputed any technician from the 3^rd opposite party as claimed in the complaint.  The 2^nd opposite party has also not produced the list of the authorized service agency working under them.  The 2^nd opposite party very well known who are of the authorized service agencies.  But they failed to produce  a list of service agencies to prove that the 3^rd opposite party would not come in the list of authorized service agencies deputed by the 2^nd opposite party manufacturing agency.  In the circumstances and in the absence of any specific demand on the part of the 1^st opposite party who deputed the 3^rd opposite party claiming to be authorized service agency we have no hesitation to hold that the 3^rd opposite party is the authorized service centre of the 2^nd opposite party.  It is further to be pointed out that even the 2^nd opposite party would admit that on the basis of the complaint of defect made by the complainant  the 4^th opposite party has removed the A/C and taken the indoor unit to their service centre and got it repaired and when they asked service charges amounting to Rs.4500/- the complainant was not willing to pay the service charge and taken back the A/C and as directed by the 2^nd opposite party the 4^th opposite party has taken the A/C to the complainant’s residence on 29.02.2016 at about 3 pm.  But the complainant’s house was locked and when contacted over phone  the complainant was not ready to collect the repaired A/C from the 4^th opposite party. 

The 4^th opposite party also would rely on Ext.D1 document.  It is clear from the available materials that the 4^th opposite party had taken the A/C to the residence of the complainant after rectification of the defects.  But the complainant was not ready to receive back the same for his own reasons.  According to him the complainant he refused to take delivery and the reasons for not taking delivery in the earlier e-mails and he claims to refund the full value of the A/C.  It is  clear from the available materials  that the door of the house of the complainant was not locked as claimed by the 2^nd opposite party but the complainant  refused to take delivery of the A/C.  the learned counsel for the complainant has argued that the disputed A/C was having manufacturing defect and that is why right from the warranty period it would became non working and it got repaired on several occasions almost 8 times as indicated in Ext.A5 series letters.  It is clear that the purpose of the A/C purchased by the complainant was lost as the cooling system of the A/C by was not properly functioning.   In the circumstances not receiving the repaired A/C by the complaint is justifiable.  In the circumstances we are of the view that the complainant is entitled to get the defective A/C substituted by a brand new and defect free A/C of the same specification and value and the 2^nd opposite party  who is the manufacturing company is bound to do so as it is evident from the available materials that there is deficiency in service and unfair trade practice on the part of the opposite parties in selling the A/C having manufacturing defect and not getting it serviceable within a reasonable time of noting the defects and also for demanding service charges for repairing A/C having manufacturing defect.  The point answered accordingly.

In the result the complaint stands allowed in the following terms.  1^st and 2^nd opposite party are directed to substitute the defective A/C with a brand new one of the same value and specification within 45 days from the date of getting a copy of this order.   

The opposite party No.1&2 are also directed to pay Rs.10,000/- as compensation and Rs,7500/- as costs of the proceedings to complainant within 45 days from the date of  receipt of a copy of this order.

If the opposite party No.1&2 failed to comply with the above directions the complainant is entitled to recover Rs.47000/- being the price of the A/C, Rs.10,000/- being compensation along with interest @ 9% per annum from the date of 08.03.2014 till realization from opposite party No.1&2 jointly and severally and from their assets.

Dictated to the  Confidential Assistant  Smt. Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the  18^th   day of  January 2020. 

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

Senior Superintendent

INDEX

Witnesses examined for the complainant:-

PW1:- Saran.G.Pillai

Documents marked for the complainant:-

Ext.P1:- Retail invoice dated 08.03.2014 issued from Alias Electronics Pallimukku Ext.P2 :- Operation manual issued from Sharp Business System India

Ext.P3:- Cash bill issued from Easy Clean Refrigeration

Ext.P4:- Cash bill dated 17.02.2016 issued from Signal Electronics Kadappakkada

Ext.P5 Series :- e-mail message dated 15.07.2015 dated 10.02.2016

Witnesses examined for the opposite party:-Nil

Documents marked for the opposite party:-

Ext.D1:-E-mail message dated 29.02.2016

E.M.Muhammed Ibrahim:Sd/-

S.Sandhya Rani:Sd/-

Stanly Harold:Sd/-

Forwarded/by Order

                                                                                    Senior Superintendent