DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD
Dated this the 30th day of October 2020
Present: Sri.V.P.Anantha Narayanan, Member(President I/c)
: Smt.Vidya.A, Member Date of Filing: 15/05/2019
CC /159/2019
Abdul Kareem,
S/o.Muthukutty Rawther, - Complainant
Mannayamkattupura,
Kothamangalam,
Kuthanoor.P.O,
Palakkad - 678 721.
(By Party in person only)
V/s
The Proprietor/Dealer, - Opposite party
Kochukudiyil Agencies,
15/513(69), A&P Complex,
Stadium Bye Pass Road,
(By Adv.P.Sreeprakash)
O R D E R
By Sri.V.P.Anantha Narayanan, Member
The complaint in a nutshal is stated as follows:
On 07/04/2019 the complainant purchased one ton inverter LG AC for Rs.38,000/- from the opposite party. For one or two months there was no problem. But after that the AC was not working. On complaining to the opposite party, two times the opposite party technician came and cleaned the filter. Even then, the same was not made right. Again many times, complaints were made about the AC to the opposite party but they did not come. As per the instructions of another person an email complaint was given to the opposite party. After one week complainant was informed to take the product to the service centre. At his expense complainant took the AC to service centre. After five days complainant was called from the service centre and he was informed that to set right the AC Rs.2,500/- expense is necessary and only by spending and giving this amount the AC could be set right by them. According to the complainant, for the last one month his AC was with the service centre of the opposite party and he was earning his livelihood by running a hotel and he could not use the AC fruitfully for at least three months spending Rs.40,000/-. Since there was no AC for five days his hotel was shut down and the hotel business went into a huge loss and complainant had to incur liability of wages of five workers. At this time the complainant purchased a second hand AC for Rs.20,000/- and fitting the same in his hotel he is doing business now. As a result of this he incurred Rs.80,000/- loss. According to the complainant, he had purchased the AC from the opposite party telling them that it was for hotel purpose the AC was bought. The opposite party gave the bill for the AC in the name of the hotel and the opposite party fitted the AC in the hotel. But now the opposite party tells that this AC is not suitable for hotel purpose but only for domestic purpose. Complainant pleads that telling these lame excuses he is mentally harassed and tortured. In the service centre the guarantee period of the AC expired. Complainant further pleads that complaint for this AC occurred from three months which is known to the opposite party and when complained about the product they did not do positively. Hence this complaint was filed before this Forum. The complainant prays to this Hon’ble Forum to order for payment of Rs.38,000/- paid by the complainant for this subject AC and for payment of compensation of Rs.42,000/- towards mental agony suffered by the complainant.
The Complaint was admitted and notice was sent to the opposite party to enter appearance and file its version. In the version filed the opposite party contends that this complaint is not maintainable either in law or on facts and the opposite party denies all the contentions mentioned in the complaint. According to the opposite party the complainant has filed this complaint willfully suppressing the real facts and projecting false claims. This opposite party denies as false the contentions in the complaint that on 07/04/2019 this opposite party delivered 1.5Ton inverter LG Air Conditioner to the complainant. The AC was purchased by the complainant on 07/04/2018. The contention in the complaint that after two months cooling effect of AC was reduced is false. The contention that after two months the opposite party failed to attend complaints of this complainant is also false. This opposite party is only a dealer of various products. In the event of any complaint after sale the customer has to approach the respective service centre of the manufacturing company and all the complaints of the complainant were attended by LG service personnel. This opposite party also contends that the complainant has to strictly prove his allegation of demand of Rs.2,500/- by the opposite party towards maintenance charges etc. The contention that air conditioner was in the service centre for three months is also false. This opposite party also denies as false the complainant’s contention that his hotel remained closed for five days due to want of AC and due to non availability of AC his business was in loss and the complainant had to meet wages of five workers. This opposite party also denies as false the purchase of second hand AC and incurring loss of Rs.80,000/- due to non availability of AC. According to this opposite party it is true that the AC was purchased for the purpose of using it in a hotel and the contention that the AC is not fit for use in a hotel is false; it will depend upon how the hotel and AC are maintained. This opposite party further denies as false the contention that this opposite party is aware of the defect of the product and expressed helplessness. Every time when the complaint of the air conditioner was reported the service personnel of the manufacturer attended the same without delay. The dealer has absolutely nothing to do with this act. It appears that four times complaint was reported. On 31/05/2018 the complaint regarding remote function was attended. This opposite party contends that it was only due to lack of experience, remote function was disturbed. Then on 09/07/2018 evaporator was filled with dust due to improper use which was also attended by the service centre, third time wet service was done. According to this opposite party there was no defect for this air conditioner and complainant has no complaint regarding the service rendered by this opposite party. Hence this opposite party contends that it is an unnecessary party to the proceedings and the manufacturer is a necessary party to this proceedings. Hence in the absence of the manufacturer this complaint is bad for non joinder of necessary parties. Further this opposite party argues that there was no patent defect while delivering the AC and it was in perfect working condition. Hence there is no manufacturing defects/deficiency in service from the side of this opposite party. According to this opposite party complainant is running a hotel where the dust and smoke content is very high. The new filters in the AC are micro nano filters which is effective so that even a small dust gets accumulated in the filter. Since the complainant is running a hotel where much smoke and dust exist and the filter gets blocked which is not due to any manufacturing defect or deficiency in service. The filter in the AC requires periodical cleaning, if placed in the dust and smoke zone. If the AC is fitted in a household not in a commercial place, filter cleaning is not required, if the AC is installed in a commercial place like a restaurant necessary precautions should be taken to avoid fume, dust and smoke, but complainant has failed to do so. According to this opposite party, this appears to be the reason for damage. This opposite party further contends that the complainant is not a consumer as defined in the Consumer Protection Act and the purpose of purchase of this AC was for commercial purpose and therefore he is not entitled to file a complaint before this Forum. He has employed five workers in his hotel. Therefore, according to this opposite party it is not for his livelihood. Hence complaint should be dismissed. Hence this opposite party prays to this Hon’ble Forum to dismiss this complaint as there is no manufacturing defect or deficiency in service from the part of this opposite party.
The complainant and the opposite party filed their chief affidavits. Notice to opposite party served, name called absent and the opposite party was set ex-parte. Opposite party filed application to set aside ex-parte order and this application was allowed on cost. Exts.A1 and A2 were marked from the side of the complainant and Exts.B1 and B2 from the side of the opposite party. Both parties were heard.
The following issues arise in this case:
- Whether there is any deficiency in service and unfair trade practice from the part of the opposite party?
- If so, the relief and cost available to the complainant?
Issues 1&2 in detail.
Complainant has filed Exts.A1 and A2 to prove his pleadings. Ext.A1 is a tax invoice issued by the opposite party which evidences the purchase of LG inverter AC 1.5Ton for Rs.38,000/- by the complainant on 07/04/2018. Ext.A2 is a copy of work order on 10/04/2019 which discloses terms and conditions. The opposite party has produced Exts.B1 and B2 to defend its contentions. Ext.B1 is a copy of tax invoice issued to the complainant for the purchase of a LG inverter AC 1.5Ton for Rs.38,000/-. Ext.B2 are job sheets received from the complainant dated 31/05/2018 which reveals purchase date, defect reported by engineer as “remote function explanation given set OK”, receipt dated 09/07/2018 which shows defect reported by engineer as “evaporator clean set OK”, job sheet receipt dated 24/11/2018 which shows defect reported by engineer as “wet service”, job sheet receipt dated 24/01/2019 which shows defect reported by engineer as “dry service done set OK” and job sheet receipt dated 25/02/2019 which shows defect reported by engineer as “engineer visited/ow AC using for commercial purpose(hotel). High dust area, need full”. These Exhibits clearly show repairing and servicing done by the opposite party.
After perusing the affidavits and documentary evidences submitted by both parties we observe that on 07/04/2018 the complainant purchased from the opposite party (1) LG inverter AC 1.5Ton ASNQ 18 PUXA-I/D (2) LG inverter AC 1.5Ton JSUQ 18 PUXA-O/D for a total price of Rs.38,000/- which is clear from tax invoice dated 07/04/2018 issued by the opposite party. We view that the opposite party is a dealer of products and on making complaints about the product, the complainant himself has admitted that two times the opposite party technician came and cleaned the filter of the inverter AC. But complainant has not produced any proof of his having sent to LG company, the manufacturer of the inverter AC a complaint of non working of the AC by email and a copy of the said email is not seen produced by him(the complainant). Also no proof is seen produced by the complainant about his having been demanded Rs.2,500/- by the opposite party technician to repair the said inverter AC. Further no proof is produced by the complainant that for three months the AC could not be efficiently used by him, that due to non working of the AC his hotel had to be shut down for five days and as a result his hotel business went into a big loss of Rs.80,000/-, that he has purchased a second hand AC for Rs.20,000/-. But we view that the tax invoice issued by the opposite party evidencing the purchase of the AC clearly shows; “delivery at night light Arab hotel near Kanikkamatha School, Mepparambu bye pass road, Palakkad” which proves for the hotel purposes the AC was purchased by the complainant and delivered to him. But complainant could not prove that since 10/04/2019 his AC was in the service centre of the opposite party and LG authority’s statement that the purchased AC could not be used for hotel purpose but can only be used for domestic purpose. Further we observe that the complainant has not produced any warranty card for the AC to prove that the product is still within the warranty period ie. at the time of filing this complaint. We also understand that the AC was given to LG service centre for repair and service on 10/04/2019 which is proved by Ext.A2 and Ext.B2 proves that the opposite party has done service to the subject AC which is clear from job sheets dated 31/05/2018, 09/07/2018, 24/11/2018, 04/01/2019 and 25/02/2019 which all prove that during the warranty period of the said AC, the AC has been repaired and serviced by the opposite party which demonstrates the existence of some manufacturing defect to the AC; but we view that the complainant has not taken out any expert commission to prove the existence of manufacturing defect for the inverter AC purchased by him and he has not impleaded the manufacturer of the inverter AC as a party in the opposite party array of this case. At the same time we observe that the opposite party cannot evade from its liability to ensure smooth working of the subject AC which has become non working within a short period of three months of date of its purchase and the opposite party is also not seen to have ensured its smooth working during its warranty period atleast. Finally we observe that within three months of its purchase on 07/04/2018 the said inverter AC has to be serviced and repaired which enough demonstrates the existence of some manufacturing defect for the said inverter AC.
Under the circumstances mentioned above, we view that within the warranty period of one year for the AC the said AC has become non working which gravely affected the earnings of the complainant which caused much financial loss and consequently huge mental agony to the complainant and his family. But the complainant has failed to implead the AC manufacturer as a party in the opposite party array in this case and to take out an expert commission to prove the manufacturing defect in the inverter AC purchased by the complainant. At the same time the opposite party is also not seen to have taken steps to inform and impress upon the manufacturer of the inverter AC about the non working condition of the AC and get it repaired free of cost or replaced with a new one charging nothing from the complainant. We view that the opposite party should have reported to and impressed upon the inverter AC manufacturer about the non working condition of the AC even after its repair by opposite party and to get it replaced free of cost with a new inverter AC. It is also observed that the AC purchased by the complainant has 12 months warranty for all parts and also has additional warranty for the compressor which is admitted by the opposite party in its argument notes as-“an LG AC is having 12 months warranty on all parts and it is also having additional warranty for the compressor”. We observe that within nearly three months of its purchase on 07/04/2018 the said inverter AC had to be repaired and serviced which is clear from job sheets dated 31/05/2018 and 09/07/2018 from which we can reasonably assume the existence of some manufacturing defects for the said AC. We observe that it is the duty of the opposite party to ensure the smooth working of the inverter AC during the warranty period of one year atleast as it has become non working within a very short period of three months of the date of purchase.
Considering all the above points, we decide to partly allow the complaint.
We direct the opposite party to pay Rs.15,000/-(Rupees Fifteen thousand only) to the complainant as compensation for the deficiency in service committed by the opposite party and for financial loss incurred by the complainant and consequent mental agony suffered by him. At the same time we cannot allow prayer of the complainant to order the opposite party to pay the invoice price of the inverter AC of Rs.38,000/-(Rupees Thirty eight thousand only) which was purchased by the complainant on 07/04/2018 because the complainant had used the inverter AC for some time till it became fully unusable. Further we observed that the opposite party is only a seller of products and not their manufacturers.
This order shall be executed within a period of one month from the date of receipt of this order; otherwise complainant is also entitled to receive interest @ 9% per annum on the total amount due to him from the date of the order till realization.
Pronounced in the open court on this the 30th day of October 2020.
Sd/-
V.P.Anantha Narayanan
Member(President I/c)
Sd/-
Vidya.A
Member
Appendix
Exhibits marked on the side of complainant
Ext.A1 –Tax invoice issued by the opposite party to the complainant on 07/04/2018.
Ext.A2 - Copy of work order on 10/04/2019
Exhibits marked on the side of Opposite party
Ext.B1 – A copy of Tax invoice issued to the complainant on 07/04/2018 which evidences the
purchase of this disputed inverter AC.
Ext.B2 – Job sheets received from the complainant dated 31/05/2018.
Witness examined on the side of complainant
NIL
Witness examined on the side of opposite party
NIL
Cost : NIL
