Haryana

Ambala

CC/152/2022

Jasdev Singh - Complainant(s)

Versus

Voltas Ltd - Opp.Party(s)

Anmol Singh

10 Nov 2023

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

Complaint case no.	:	152 of 2022
Date of Institution	:	18.05.2022
Date of decision	:	10.11.2023

Jasdev Singh (Age- 55 Years) Son of Late Shri Narata Singh Resident of House. No- 53 Sector 1 Ambala City (Haryana) (M)-9416225111, 9416936700.

……. Complainant

Versus

1. Voltas Limited, Voltas House A Dr. Baba Sahib Ambedkar Road, Chinchpokli, Mumbai – 400033 Contact No-022- 66656666 through its Managing Director.
2. Lovely Electronics Geeta Nagri Near Dhulkot Railway Station Ambala City through its Proprietor Sh. Rajinder Kumar.

….…. Opposite Parties

 Before:       Smt. Neena Sandhu, President.

                             Smt. Ruby Sharma, Member,

          Shri Vinod Kumar Sharma, Member.           

 

Present:       Complainant in person

                    Shri Rajiv Sachdeva, Advocate, counsel for the OP No.1.

                   OP No.2 alr ex parte.

                  

Order:        Smt. Neena Sandhu, President.

                   Complainant has filed this complaint under Section 35 of the Consumer Protection Act, 2019 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’) praying for issuance of following directions to them:-

1. To replace the said defective air conditioner with new one or to refund the amount of Air Conditioner Rs.37036.60/- plus Rs.1000/- installation charges.
2. To pay Rs.22,000/- as compensation on account of suffering pain, agony, mental and physical harassment.
3.  To pay Rs. 22,000/- as cost of litigation
4.  Grant any relief which this Hon’ble Commission may deems fit.

 

2.             Brief facts of this case are that the complainant purchased a Voltas Split Air Conditioner 1.5 Ton 5 Star Inverter from OP No.2 vide invoice number 1044 dated 26-03-2021 for a sum of Rs.37036.60/-. The complainant got installed said Air Conditioner as per the instruction of OPs from their authorized- service center Gulati Electronics SCO-61 Prem Nagar Ambala City and paid Rs.1000/- as installation charges to them vide invoice number 3237 dated-10-04-2021. From the day one many complaints/defects were found in the air conditioner which were intimated to the OPs and asked the OPs to replace the said air conditioner with new one or to refund the amount paid. On 22-7-2021 the official/ASM of OP No.1 Sh. Sudip Dutta sent an mail to the complainant saying that as per discussion the company is extending the warranty of product for 1 year as he has allowed to repair the coil of the said air conditioner and that in case he faces any issue within 1 year, the company shall replace the unit. After assurance of Sh. Sudip Dutta ASM of OP No.1, the complainant allowed the OPs to change the coil of the said air conditioner, yet, even then it did not work and the defects like less cooling, throwing water, loud noise and bad gas smell still existed.  When many complaints made to the OPs did not yield any result, ultimately, the complainant served a legal notice upon the OPs through his counsel on 05-04-2022 to change the said air conditioner with new one or refund the amount of air conditioner but to no avail.  Hence, the present complaint.
3.           Upon notice, OP No.1 appeared and filed written version wherein it raised preliminary objections to the effect that the complainant has not approached this Commission with clean hands;  the present complaint is nothing but a concocted story just only to grab illegal benefits;  the complaint of the complainant alleging defect in the product cannot be determined on the simpliciter submissions of the complainant and needs a proper analysis test report to confirm the same; it is the settled position of Law that an expert opinion/ cogent Evidence is mandatory under section 38 (2) (c) of the Act to prove the allegations/averments made by complainant which he failed to do so; no cause of action arises in favor of complainant and there is no deficiency in services on part of OP No.1. On merits, it has been stated that VOLTAS Ltd. is a renowned company in Electronic Products and Commodities and is manufacturing Electronic products for the past several years. The technology used by the company in manufacturing the World Class Electronic Products is highly sophisticated and the intent of the company is to serve its customer and provide goods at the most competitive price and also to provide after sales service and there is no intent whatsoever to deny the same under any circumstances. In fact the complainant, in regard to the unit in question approached to the company in the month of July 2021 and reported some issue and a call was registered and the engineer visited to the premises and the thoroughly checked the unit, and it was found that the unit is required to be repaired. However, the complainant refused to get unit repaired and started demanding replacement for his unit. The engineer told the complainant that the unit is repairable and will work after repair, but complainant remained adamant for replacement. However it was told by the company to get the unit repaired and to allow repair for unit with an assurance that if further same issue will be faced by the complainant after repair, the company as a goodwill gesture, will replace the unit and also two free services will be provided. The complainant agreed and the service/repair was done and the unit started working fine. After that the complainant again approached to OP No.1 on 13.10.2021 and thereafter on 15.03.2022 for free service of the unit. As promised, OP No.1 provided free of cost service/routine service to the complainant and the unit was serviced by the company and thereafter, no problem was reported by the complainant. After that, no call has been registered by the complainant with OP No.1. Thereafter, OP No.1 came to know about the present complaint. OP No.1 has provided services to complainant and also the company is always still ready to provide services/replacement of unit to the complainant.  The company provides one year warranty on the unit and five years warranty only for the compressor of the unit and warranty means in case of any problem with the unit, the unit will be repaired or its parts will be replaced as per company policy and the warranty of the unit (warranty means only repair not replacement) and also the warranty is subject to some conditions and the warranty of the unit becomes void in case of Liquid Logged/water logging; Physically Damage; Serial no. Missing; Tampering; Mishandling/Burnt etc. As per the law decided by the Hon'ble Apex Court of India in case titled RAMESH CHANDRA AGARWAL VERSUS REGENCY HOSPITAL LTD.& ORS. 2010(1) CONSUMER PROTECTION CASES-1, it has been held that "Consumer Protection Act, 1986-Section 23-Evidence Act, 1872-Section 45-Expert evidence-Expert opinion is admissible in evidence only if it is supported by scientific evidence-Judge is duty bound to form independent judgment basing it on credibility of expert-In the absence of relevant data mere assertion is not an evidence to reach at a correct conclusion-In the instant case, Assistant Registrar did not show proper care in forwarding records of treatment given to the patient to the expert-National Commission failed to appreciate that in the absence of documents expert could not give correct opinion-Impugned Order cannot be sustained". The reliefs sought by the complainant in the present complaint, are beyond the agreed terms & conditions of warranty and also outside the ambit of section 14(1) of the Act. It is well settled by the Apex Commission that under Section 14(1) (d), compensation can be awarded to a consumer only in respect of loss or injury suffered by the consumer due to the negligence of the OP. The Hon'ble Supreme Court in STEREOCRAFT VS MONOTYPE INDIA LTD, NEW DELHI(2000, NCI(SC(59) has clearly held that when terms of warranty does not cover refund or replacement then consumer cannot claim either replacement or refund during or after the lapse of warranty period. The Hon'ble Supreme Court of India in Maruti Udyog Limited vs. Susheel Kumar Gabgotra, (2006) 4 SCC 644, at paragraphs 10 and 11) held that where a warranty condition is specifically stated, a contrary implied warranty cannot be imputed. Further, in Bharathi Knitting v. D.H.L. Worldwide, (1996) 4 SCC 704, the Hon'ble Supreme Court had held that in case of specific term in the contract, the parties will be bound by the terms of the contract. Rest of the averments of the complainant were denied by OP No.1 and prayed for dismissal of the present complaint with heavy costs.
4.           Upon notice, none appeared on behalf of the OP No.2 before this Commission, therefore, it was proceeded against ex-parte vide order dated 25.07.2022.
5.           Complainant tendered his affidavit as Annexure CW1/A alongwith documents as Annexure C-1 to C-10 and closed the evidence of the complainant. On the other hand, learned counsel for the OP No.1 tendered affidavit of Rajesh Kumar, C/o OP No.1 Company-Voltas Limited as Annexure OP-1/A alongwith documents-Annexure OP-1/1 to OP-1/5 and closed the evidence on behalf of OP No.1.
6.           We have heard the complainant and learned counsel for OP No.1 and have also carefully gone through the case file.
7.           Complainant submitted that despite the fact that the air conditioner in question was under warranty period when the defects arose in the same, yet, the OPs by neither making it operational during the warranty period by rectifying the defects nor replacing the same with a new one nor refunding the price of the same, are deficient in providing service and indulged into unfair trade practice. Complainant in support of his contention, has placed reliance on the judgment dated 11.02.2014 passed by Hon’ble Delhi State Consumer Disputes Redressal Commission, in the case of Jugnu Dhillon Vs. Reliance Digital Retail Limited & Others  and judgment dated 25.03.2015, passed by Hon’ble State Consumer Disputes Redressal Commission, UT Chandigarh, in the case of M/s Daikin Airconditioning India Vs. Mandeep Kaur.
8.           On the other hand, learned counsel for OP No.1 while reiterating the objections and contentions raised in its written version submitted that since there was no manufacturing defect in the air conditioner in question and at the same time, defects occurred therein were removed to the satisfaction of the complainant as such, the complainant is not entitled to get any relief now.  He further submitted that no expert evidence has been placed on record by the complainant to prove that there is any manufacturing defect in the air conditioner in question. Learned counsel for the OP No.1 has placed reliance on the judgments, mentioned in the written version.
9.            Since the fact that the complainant had purchased the air conditioner in question from OP No.2, which is manufactured by OP No.1 as per the details mentioned in the complaint; that defects arose in the said air conditioner during warranty period as a result of which efforts were made by the OPs to rectify the same are not in dispute, as such, the only moot question which falls for consideration is, as to whether, the complainant is entitled to get any relief in the matter or not and if yes, to what extent. It may be stated here that it is evident from the job cards Annexure OP-1/1 to OP-1/5 wherein date of visit has been mentioned from 20.04.2021 to 15.03.2022 and also emails Annexure C-8 dated 22.07.2021 & 26.03.2022, Annexure C-9, that various defects like power fluctuation; noise problem; gas problem/not cooling etc. arose in the said air conditioner. The complainant is alleging that despite making efforts the defects could not be rectified in the said air conditioner till date, yet, on the other side, it is the specific stand of OP No.1 that the air conditioner is not suffering from any manufacturing defect and also is working perfectly as on date and at the same time, the complainant has failed to prove his case by way of placing on record any expert report. It is significant to mention here that irrespective of the fact that the complainant has not placed on record any expert report to prove that there was any manufacturing defect in the air conditioner in question, yet, OP No.1 has failed to convince this Commission as to why, when there was no manufacturing defect in the said product, then what forced them to offer replacement of the said air conditioner with a new one, offered to the complainant vide email dated 02.06.2022, Annexure C-10. Relevant part of the said email is reproduced hereunder:-

“……Dear concern,

We are replacing your AC. You will get a new AC within the next 10 working days.

Model Voltas 185V ADS (R32)

Serial No.4552665B21BC10157 & 4512723G21AC07986

Thanks & Regards

Sudip Dutta

                         7001377653

Voltas Customer Care……” 

 

10.           Had the air conditioner in question been not defective or not suffering from any manufacturing defects, the OPs would not have offered replacement of the same. However, there is nothing on record that the defective air conditioner was replaced with a new one in lieu of email, Annexure C-10, by the OPs. Under these circumstances, an adverse inference could easily be drawn  against the OPs that in the first instance, defective air conditioner was supplied  to the  complainant which was beyond repair and thereafter, despite offering replacement  of the same with a new one and not providing the same to the complainant, the OPs indulged into unfair trade practice and are also deficient in providing service to the complainant.  It is also significant to mention here that the ratio of law laid down in the judgments referred to by  OP No.1 is not applicable to the present case, as in the present case, despite making assurance qua replacement of the defective air conditioner vide email Annexure C-10, OP No.1 failed to do so. It may be stated here that no help can be drawn by the counsel for OP No.1 from the judgments referred in the written version.
11.           In view of the aforesaid discussion, we hereby allow the present complaint and direct the OPs, in the following manner:-   
    1. To replace the defective air conditioner in question with a new one (defect free) of the same specifications/model free of cost or in the alternative to refund the entire amount of Rs.37036/- alongwith interest @6% p.a. w.e.f 18.05.2022, i.e the date of filing of the complaint, till realization.
    2. To pay Rs.3,000/- as compensation for the mental agony and physical harassment suffered by the complainant.
    3. To pay Rs.2,000/- as litigation expenses.

                             It is further directed that OPs shall comply with the aforesaid directions, jointly and severally, within the period of 45 days, from the date of receipt of the certified copy of the order, failing which the OPs shall pay interest @8% per annum on the awarded amount, from the date of default, till realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced:- 10.11.2023

 

(Vinod Kumar Sharma)	(Ruby Sharma)	(Neena Sandhu)
Member	Member	President