BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

  Complaint No.371 of 2018

       Date of Instt. 07.09.2018

       Date of Decision:23.06.2022

Sumit Gupta aged about 38 years S/o Satish Kumar, R/o 54-C, Navi Baradari, Opp. DC Office, Tehsil & District Jalandhar.

..........Complainant

Versus

1.       Vicky Gift Centre, Adda Bhargo Camp, Nakodar Road, Jalandhar     through its proprietor.

2.       Onida Customer Service, 56/70, New Oriental Bank of Commerce, Garha Road, Jalandhar through its Manager.

3.       MIRC Electronics Ltd., Onida House, G.1., MIDC, Mahakali Caves Road, Andheri East, Mumbai through its Manager.

4.       163 Onida Service Center, Backside International Hotel, Ranjit         Nagar, Bus Stand, Jalandhar through its Manager.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)   

Present:       Sh. Rajinder Kumar, Adv. & Sh. Vivek Handa, Adv.                        Counsels for the Complainant.

                   Sh. M. S. Jass, Adv. Counsel for OP No.1.

                   OP No.2 exparte.

                   Sh. Pankaj Sharma, Adv. Counsel for OPs No.3 & 4.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the complainant had purchased Window AC 5 star 1.5 Ton make Onida from OP No.1 on 21.04.2018, vide invoice no.190 for a total sum of Rs.26,001/- including taxes. After the AC was brought by the complainant to his house and as soon as the packing of the AC was opened, it was found that the Fan of the AC was in broken condition and immediately the complainant contacted OP No.1 to replace the AC. Thereafter, the AC was returned and it was exchanged with a new AC. The complainant got installed the new AC and when the complainant switched on the AC, it was found that the cooling of the AC was not proper. Thereafter the complainant again contacted the OP No.1 that even new AC is not working properly and its cooling is not proper and requested the OP No.1 to replace this AC with new one. Instead of replacing the AC, the OP No.1 asked the complainant to contact at customer care no.18001031000, where the complainant contacted at the above said number and registered his complaint regarding the cooling problem of the AC. Then OP No.4, which is the service centre of Onida at Jalandhar sent their employee namely Vipin to look into the matter. When the above said employee visited the house of the complainant and checked the AC and stated that there is no adequate gas in the AC, so due to the above said reason, the cooling of the AC is not proper. The above said person assured that he will come again and will do the needful but he never returned. Thereafter the complainant again contacted the OP NO.1 that one person namely Vipin Kumar had come and after checking the AC, returned assuring the complainant that he will come again, but he never returned. Then the OP No.1 gave contact number of Virinder, who is senior incharge of the Service Centre i.e. OP No.4 and the complainant contacted above said Virinder. The above said Virinder, again sent one another employee and similarly he also checked the AC and gave same opinion that there is no adequate gas in the AC, due to which, the cooling is not proper and he also returned assuring the complainant that some of the parts of the AC needs to be replaced, but that can be done by the Incharge/Supervisor of the OP No.4. The above said person, never returned despite the complainant tried to contact OP No.1 as well as OP No.4. Thereafter, the complainant remained vigilant in lodging and registering his complaints during different period of times on the customer care number and the complaints of the complainant were registered vide complaints no.18061086380463, 18061086381569, 18061086380607, but none from the service center i.e. OP No.4 came to the house of the complainant and fix the defect till date. The complainant is regularly contacting and requesting the OP No.1 & 2 to replace the AC with a new one, but the complainant is being harassed at the hands of OPs No.1 and 4 and for which, OPs No.2 & 3 are also vicariously liable for the act and conduct of OPs No.1 and 4. The complainant has also issued legal notice to het OPs through his counsel dated 06.07.2018. In this manner, all of OPs have been indulged in unfair trade practice to defected AC to the complainant 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 either to replace the AC or to refund the amount of Rs.26,001/- being the purchase price of AC and further OPs be directed to pay Rs.50,000/- for mental and physical harassment and Rs.20,000/- for the offence of cheating and fraud committed by the OP and Rs.25,000/- as litigation expenses.

2.                Notice of the complaint was given to the OPs, but despite service OP No.2 failed to appear and ultimately, OP No.2 was proceeded against exparte, whereas OP No.1 appeared through its counsel and filed its written reply, whereby contested the complaint by taking preliminary objections that the present complaint is not maintainable against the answering OP at all and is liable to be dismissed since being seller answering OP had no liability to repair the Window AC. The concerned company and its recognized Service Centre are liable to repair the defects of the Window AC as per terms and conditions of the warranty provided by the company. The complaint has been instituted against the answering OP with malafide and concocted grounds. It is further averred that the complaint is bad for non-joinder and mis-joinder of parties. The answering OP has been unnecessarily dragged into the present complaint. The complainant is guilty of suppression, misrepresentation and distorted of material facts. On merits, the factum with regard to purchasing the said AC by the complainant is admitted and it is also admitted that there was a problem in the said AC and the same was replaced with new one, 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.                OPs No.3 & 4 filed its separate joint written reply and contested the complaint by taking preliminary objections that the above noted complaint is not maintainable in the present form and the same is liable to be dismissed on this score alone. It is further averred that the complainant has not approached this Commission with clean hands and has suppressed & concealed the material facts from this Commission and as such, the complainant is not entitled for any relief from this Commission. The complainant has concealed that he himself was lingering on the matter on one pretext or the other and there was no defect in the AC unit and even there was no deficiency/negligence or deceptive trade practice on the part of the OP. Even the complainant had concealed the fact that whensoever he had moved the complaint to the OP, it was properly entertained and the mechanic from the side of OPs have gone to the premises of the complainant, but he had refused them from signing the documents required by the said persons i.e. mechanics. It is further averred that the court fees affixed with the complaint is less. The complainant has intentionally attached the lesser court fee as such the present complaint is not maintainable in the eyes of law. The complaint of the complainant is bad for mis joinder and non-joinder of necessary parties. The complaint is not supported with the affidavit as such the same is liable to be dismissed on this score. On merits, the factum with regard to purchasing the said AC by the complainant is admitted and it is also admitted that there was a problem in the said AC and the same was replaced with new one, 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.

4.                Rejoinder not filed by the complainant.

5.                In order to prove their respective versions, both the parties produced on the file their respective evidence.

6.                We have heard the learned counsel for the respective parties and have also gone through the case file very minutely.

7.                The complainant purchased the window AC 5 star 1.5 Ton make Onida from OP No.1 on 21.04.2018, vide Ex.C-1 for Rs.26,001/-. As per the complainant, while opening the packing of the AC, the fan of the AC was found in broken condition and when he complained to the OP No.1, the same was exchanged with a new AC. The allegations of the complainant are that the new AC was installed, but the cooling of the AC was not proper. When complaint was made to the representatives of the OP No.4, they came on different times and found that the cooling problem is due to the fact that there is no adequate gas in the AC. The contention of the OPs No.3 & 4 is that the grievance of the complainant was removed as and when the complainant made any complaint and there was no problem of inadequacy of gas in the AC. This contention of the OPs is not tenable as per the document Ex.R3&4/1. The complaint was entertained by the OPs No.3 & 4 and the same was closed against the column actual complaint, the word ‘Demo’ has been mentioned and even against the column action taken, the word ‘Demo’ has been made. The date of the purchase has been mentioned as 21.04.2018 and on 27.04.2018, when the premise was visited, there was no consumption as per Ex.R3&4/1. Similarly, as per Ex.R3&4/2 the complaint was registered on 28.05.2018 and the action taken was mentioned as ‘service’ and as per this document, again there was no consumption shown. Then the complaint was registered on 11.06.2018, the actual complaint was of ‘no cooling’ and action taken was ‘set found OK’. Again there was no consumption as per this document. As per Ex.R3& 4/4 the complaint was registered on 14.06.2018. The complaint was of ‘no cooling’ again the remarks were set OK. As per Ex.R3&4/1, the complaint was made on 28.06.2018 on the complaint of no cooling and no action was taken. From the documents Ex.R3&4/3 to Ex.R3&4/5 within the span of 17 days i.e. from 11.06.2018 till 28.06.2018 three complaints were made to the OPs No.3 & 4 for no cooling and the remarks given by the mechanics were set found OK. If the AC set was found OK, then why the same complaint arose thrice in 17 days, this clearly shows that the grievance of the complainant was never redressed. The complainant purchased the AC on 21.04.2018 and first complaint was made on 27.04.2018 i.e. after 6 days of its purchase and then on 28.05.2018 the same complaint was made, but the date of purchase has wrongly been mentioned as 26.04.2018 in this document i.e. Ex.R3&4/2. This shows that within the period of two months, the OPs entertained five complaints from the complainant on the similar complaint of ‘no cooling’ and the same was never redressed. This is clear cut deficiency in service. On the day of its purchase, the broken piece of fan of AC was given to the complainant, which was though later on exchanged with the new AC, which again was not giving proper cooling. This proves that the OPs have indulged in unfair trade practice.

8.                The contention of the OP No.1 is that he is just the seller and having no liability to repair the window AC and the complaint is not maintainable qua him, but this ground is not tenable as the OP No.1 is a seller and broken piece of the AC was sold by him to the complainant, which caused mental agony and harassment to the complainant. Similarly, again he delivered defective piece of AC causing him mental harassment and he was debarred from enjoying the fruits of the AC purchased by him. Thus, the complainant is very much maintainable against him. He is also liable for causing mental harassment to the complainant. There is a manufacturing defect in the AC as has been proved by the complainant and as such the complainant is entitled for the relief as claimed.   

9.                In the light of above detailed discussion, the complaint of the complainant is partly allowed and OPs are directed to refund the amount of Rs.26,001/- i.e. the price of the AC with interest @  6% per annum from the date of purchase the AC i.e. 21.04.2018 till realization.  The OPs are further directed to pay a compensation of Rs.10,000/- for causing mental tension, pain, agony, physical inconvenience and harassment to the complainant and the OPs are further directed to pay Rs.5000/- as litigation expenses. 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    Jyotsna               Dr. Harveen Bhardwaj     

23.06.2022         Member                          Member           President