BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, JALANDHAR.
Complaint No.335 of 2022
Date of Instt. 13.09.2022
Date of Decision: 13.06.2023
Monika, age 44, W/o Sh. Satinder Kumar, R/o 684, New Model House, Jalandhar Mob: 9463001313.
..........Complainant
Versus
1. M/s Verma Electroworld, Phagwara Road, Deep Nagar, Jalandhar Cantt, 144005.
2. M/s Daikin Air Conditioning, India Pvt. Ltd. Palladium Tower 181/46, Fifth Floor, Industrial Area Phase-2, Chandigarh-160002. (Regional Head Office) thereafter Sandeep Rekhi Regional Business Head, Daikin India (email .)
3. M/s Daikin Air-conditioning India Pvt. Ltd. 12th Floor, Building No.9, Tower A, DLF Cyber City, DLF Phase-III, Gurgaon- 122002, Haryana (India)
….….. Opposite Parties
Complaint Under the Consumer Protection Act.
Before: Dr. Harveen Bhardwaj (President)
Sh. Jaswant Singh Dhillon (Member)
Present: Complainant in Person.
OP No.1 exparte.
Sh. Sushil Mehta, Adv. Counsel for OPs No.2 & 3.
Order
Dr. Harveen Bhardwaj (President)
1. The instant complaint has been filed by the complainant, wherein it is alleged that the complainant has purchased a Daikin AC of 1.5 Ton (5 Star) on 03.06.2022 from M/s. Verma Electroworld, Phagwara Road, Deep Nagar, Jalandhar Cantt, 144005 for an amount of Rs.46,000/- vide invoice No- T/22-23/482 dated 03/06/2022. The said AC has manufacturing defect since installation & neither it could be repaired by the company nor replaced by the company even on many complaints made online and telephonic talk with the dealer of verma electro world/representative of the company. The complainant booked the complaint online with reference ID LUD0607202226963520 and CX ID 101644523 on dated 06 July 2022 that AC is whistling and creating voice intermittently. The company Engineer visited complainant home on 07.07.2022 and checked the AC. Then he declared AC is ok now and complaint was cleared but the fault could not be rectified. The complainant booked the complaint online with reference ID LUD0807202226980216 and CX ID 101644523 on dated 08 July 2022 that AC is whistling and creating voice. The company Engineer visited complainant home on 09.07.2022, 16.07.2022, 10.08.2022 and checked AC and said that this is latest model and they have to replace some component but till time no result, the complaint is still pending and the fault could not be rectified till date. The anonymous complaint booked online with reference ID LUD3008202227275012 and CX ID 101644523 on dated 30 Aug 2022 and the complaint is still pending till date. The AC from the home of the complainant was carried away by the company representative on pretext of saying that it would be repaired in the company service centre but no result. The Receipt was given to the complainant. The complainant make the call to company representatives on 07.07.2022, 09.07.2022, 16.07.2022, 10.08.2022, 27.08.2022 and received calls from company representatives on 25.07.2022, 06.08.2022, 09.08.2022, 22.08.2022, 30.082022, 30.08.2022 in r/o said faulty AC. The complainant sent the emails to regional business head, Daikin India and branch manager Daikin India as the complaint was not getting resolved by online method. The complainant was never called upon status of AC after it was collected from home on August 27, 2022 and till date it has not been replaced. The complainant was bounded to register complaint online on July 6, 2022 for AC repair. The necessity to file the present claim arose when the OP neither unilaterally provided the right product nor replaced the AC. The act and conduct of opposite party amounts to unfair trade practice and the OP is guilty of deficiency in services and as such necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay the claim amount of Rs.46,000/- or New AC with interest @ 12% per annum w.e.f. 03 June, 2022 till the same is paid to the complainant and further to pay litigation expenses of Rs.10,000/-.
2. Notice of the complaint was given to the OPs, but despite service OP No.1 failed to appear and ultimately OP No.1 was proceeded against exparte, whereas OPs No.2 & 3 appeared through its counsel and filed written reply and contested the complaint by taking preliminary objections that OPs No. 2 & 3 states that the admittedly registered address of the Daikin Air Conditioning India Private Ltd. is at 210 First Floor Okhla Industrial Area Phase 3, Delhi 110020, which does not fall within territorial jurisdiction of this District Commission. Hence, no causes of action or part of cause of action have arisen within territorial jurisdiction of this Commission and this complaint is liable to dismissed on this ground itself. The OP No.2 submits that as per Clause 17 of warranty terms provides for as follows:-
“17 Courts in Delhi shall have exclusive jurisdiction in the event of any dispute.”
It is further averred that by virtue of terms and conditions of the warranty card, the complainant himself has agreed to the jurisdiction at Delhi, hence filing of consumer complaint at Jalandhar is not permissible since the complainant already agreed to jurisdiction at Delhi and furthermore, without prejudice and in alternative to the contention raised above, hence this complaint is liable to dismissed on this ground itself. It is stated that aforesaid "OUSTER CLAUSE" i.e. Clause 17 is contained in agreement in case where there is possibility of filing the cases at more than one jurisdiction based on cause of action or part of cause of action etc. then in such a case it is lawful for parties to enter into contract by virtue of which they can outset jurisdiction of all other court and agree upon jurisdiction of particular contracted court as done in present case by virtue of said Clause. Hence, the aforesaid clause is clear and unambiguous and does not suffer from any infirmity to render it difficult to interpret on term and condition of agreement which cannot be faulted upon as same are based on well settled proposition of law. On merits, the factum with regard to purchasing of the AC from OP No.1 and thereafter raising a complaint to the OPs No.2 and 3 are admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.
3. Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement.
4. In order to prove their respective versions, both the parties have produced on the file their respective evidence.
5. We have heard the complainant in person and learned counsel for the OPs No.2 & 3 and have also gone through the case file as well as written arguments submitted by complainant herself as well as counsel for OPs No.2 & 3 very minutely.
6. The complainant has proved that she has purchased a Daikin AC of 1.5 Ton (5 Star) on 03.06.2022 from OP No.1, vide Invoice Ex.C-1 for Rs.46,000/-. This fact has not been denied by the OPs also. The complainant has further alleged that on 06.07.2022, she lodged a complaint online that the AC is whistling and creating voice intermittently. She has further alleged that in response to the complaint, the engineer of the company visited the complainant’s home on 07.07.2022 and after checking the AC declared that AC is ok, but the fault could not be rectified. She again lodged complaints on 08.07.2022, which has been proved as Ex.C-3. Perusal of Ex.C-3 shows that the complaint was lodged and the OP had replied that some engineer will visit the site and ticket registration number was also given to the complainant. The complainant has further alleged that on 09.07.2022, 16.07.2022 and 10.08.2022, the engineer of the OP visited the home and checked the AC and suggested that they have to replace some component, but the AC has not been made in order till the filing of the complaint. She has further alleged that on 27.08.2022, the company’s representative came and took away the AC with them with the suggestion that it would be repaired in the company service centre only. She has proved on record the receipt Ex.C-2, which shows that the AC was taken back for repair to office by the employees of the OPs. The grudge of the complainant is that despite making number of calls to the company on different dates and receiving the call from the company representative and even sending the emails, her issue has not been resolved nor they have repaired nor changed the AC. She has also proved on record the email Ex.C-4.
7. The contention of the OP is that there is no manufacturing defect in the AC and the noise issue was due to copper, which was installed underground. The complainant was suggested to relocate the AC unit which was denied by her. They have admitted that the AC was taken to the workshop and after checking, the report of the engineer the AC was OK. Since, there is no manufacturing defect, therefore no replacement can be there.
8. The complainant has alleged that the part of the AC was replaced in her home in her presence only, but she does not have any record of it. Despite the changing of the component, the issue was not resolved. As discussed above, the purchase of the AC and taking away of the AC, lodging of complaint are not disputed. It is also not disputed that the AC was within the warranty period. The job sheet, which has been proved by the complainant dated 27.08.2022 shows that AC was taken back for repair to office. The OPs have also proved this document as Ex.O-4. The OPs have alleged that AC was taken to workshop for checking, but the remarks given on this document clearly show that there was some defect that was why the same was taken to the workshop for repair otherwise, they could have written it as AC taken back for checking it, but this is not so. The job card Ex.O-3 dated 07.06.2022 shows that there were remarks given AC working OK. Once the AC working was OK on 07.06.2022, then there was no point of taking away the AC for repair to office on 27.08.2022. As per submission of the OP, there was a problem of copper wire which was installed underground. They have suggested relocating the AC unit, but this suggestion itself is wrong. Once there was problem of underground pipe, there could have been number of alternatives for the installation of the AC. There is no document on the record to show that there was any problem of copper underground as alleged by the OPs. If the AC was working OK in the workshop, then they should have checked it in the presence of the complainant or should have called the complainant to the workshop to satisfy her that the working of the AC is perfect and there is no manufacturing defect and no whistling is there as alleged, but the complainant was never called to workshop/service centre to check the working of the AC installed in their workshop for checking. Nor there is any report of any engineer to show that the working of the AC was ok and there is no manufacturing defect. The complainant has purchased the AC in the month of June, 2022 and it started giving problem within few days and despite sending the emails number of times, her issue was not resolved. In Ex.C-4, the complainant has categorically stated that the so called service engineer could not locate/resolve the snag even on visiting six times at her home and keep making excuses on one pretext or another. There is no reply to the email alleging therein that there is no manufacturing defect rather the defect is of underground copper. If there was an underground copper problem, then it could have been in the entire wall. In such circumstances, the AC unit could not be relocated as alleged or suggested by the engineer of the OP. More so, the complainant has purchased the AC for her comfort to get it installed in a particular place, which was more suitable to her cannot allow the OP to change the location as per their wish. The OPs have sold the product with warranty and it is their duty and responsibility to install the unit to the satisfaction of the customer/consumer and to remove all the defects, if any or ask the complainant to get it removed if the same is not within their domain at the time of installation of unit, but they have not done so, rather they have refused to exchange and replace the AC. This is deficiency in service and unfair trade practice on the part of the OPs and thus, the complainant is entitled for the relief.
9. In view of the above detailed discussion, the complaint of the complainant is partly allowed and OPs are directed to replace the defective AC with new one with same model and same price or to refund the amount of AC to the complainant with interest @ 6% per annum from the date of purchase till its realization. The complainant is directed to return the defective AC to the OPs at the time of receiving the award amount or the New AC. Further, OPs are directed to pay a compensation including litigation expenses of Rs.8000/- for causing mental tension and harassment to the complainant. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.
10. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Jaswant Singh Dhillon Dr. Harveen Bhardwaj
13.06.2023 Member President
