Presented by Miss R.Pattnayak, President.
This is a complaint filed by the Complainant namely Trimurti Sebak Meher, S/o Gotam Meher of Bargarh, U/s-12 of the Consumer Protection Act, 1986 against the Opposite Parties alleging deficiency in service.
In brief, the case of the Complainant is that, on dated 26/01/2009, he purchased a Kenstar 1.5 Ton Air Conditioner 18G.N. 207005633 from Opposite Party No.1(one) namely Western Sales (A house of Consumer Electronics and home appliance), N.H. 6, Near Gurudwara, Bargarh, who is the authorized Dealer of this product for Rs. 22,800/-(Rupees twenty two thousand eight hundred)only for his personal use.
The Opposite Party No.2(two) and No.3(three) are the Service Centre and after the purchase of the Air Conditioner, the service agent of the Opposite Party No.2(two) and No.3(three) installed the same.
At the time of purchase of the said Air Conditioner, the purchase Bill/Receipt bearing No. 1095, dated 26/01/2009 was issued by the Opposite Party No.1(one) to the Complainant showing purchase of the Air Conditioner.
According to the Complainant, after purchase of the said Air Conditioner, the service agent of Opposite Party No.2(two) and No.3(three) installed the same in his house. After using the said Air Conditioner for about two months, he found that, the Air Conditioner developed some mechanical defect and the oscillator did not work properly. So the Complainant informed to the Opposite Parties orally and over phone about the problem. It is been pleaded by the Complainant that, in the First week of September-2009, the service agent of the Opposite Parties came and tried to repair the Air Conditioner but unable to repair the same and told to the Complainant that, the Motor meant for the oscillation of the Air Conditioner was not working and took the motor with him with a assurance to return back the same after completion of the repair within a short period, but till date the said Air Conditioner was neither repaired nor replaced by the Opposite Parties. It has been pleaded by the Complainant that, despite of his repeated requests to Opposite Party No.1(one), No.2(two) and No.3(three), the Opposite Parties failed to provide any service, which amounts to deficiency in service. Again, it has also been pleaded by the Complainant that despite of his request to Opposite Parties to replace the Air Conditioner or repair the same to solve his problem, the Opposite Parties pay no heed which is illegal, be cause the Air Conditioner is being defective during its warranty period. This is the violation of warranty rule by the concerned service provider.
Finding no other way, the Complainant had caused service of Pleader's Notice on the Opposite Parties on Dt.04/12/2009, which were received by the Opposite Parties but the Opposite Parties did not give any reply, otherwise remained silent. This act of the Opposite Parties amounts to deficiency in service. The Opposite Parties are violating the terms and conditions of the warranty issued by the company. On the other hand, the Complainant suffered loss, mental agony and physical harassment due to the deprivation of the comfort of the Air Conditioner and lack of service and without getting any benefit and utility by this illegal act of the Opposite Parties.
Being aggrieved, the present complaint was field by the Complainant with a prayer to repair or exchange the Air Conditioner and to give direction to the Opposite Parties to pay compensation of Rs.10,000/-(Rupees ten thousand)only towards mental torture and to pay compensation of Rs. 5,000/-(Rupees five thousand)only towards negligence and deficiency in service and also to pay Rs. 5,000/-(Rupees five thousand)only towards litigation expenses from Opposite Parties jointly and severally.
In support of his case, the Complainant has filed the following documents:-
Warranty booklet with installation report.
Warranty Card.
Purchase Bill bearing No. 1095 Dt.26/01/2009.
Pleader's Notice.
Notices were duly served on the Opposite Parties. SR back from them and the case was posted for appearance and version by Opposite Parties but no body were appeared on their behalf either in person or through counsel except Opposite Party No.1(one). Hence on dated 20/10/2011, Opposite Party No.2(two) and No.3(three) were set ex-parte. Opposite Party No.1(one) appeared on Dt.18/02/2010 and submitted his version on Dt.23/07/2010.
In his version as well as in the written argument, Opposite Party No.1(one), while denying all the allegations raised by the Complainant, submitted that, the case is not maintainable in the eye of law and the Complainant has filed this case falsely only to harass the Opposite parties and the Complainant has also failed to prove his case, therefore the Complaint petition is liable to be dismissed with cost, as there is no negligence in rendering service to the Complainant.
The Opposite Party No.1(one) has further submitted that the Complainant never made any complaint with the Opposite Parties and the Opposite Party No.1(one) became surprised when he received the pleader Notice from the Complainant and he is ready to repair/change the alleged defective motor of oscillator of the Air Conditioner if the Complainant allows him or the Hon'ble Forum direct the Complainant to allow him (the Opposite Party No.1(one)) for said repairing. The Opposite Party No.1(one) also filed the written argument along with the citations of the Hon'ble National Commission and Hon'ble State Commission which are annexed to the case record.
Relying on the pleading of the Parties, we take up the following issues for adjudication.
I S S U E S -
(1) Are the Opposite Parties guilty of deficiency in service ?
(2) To what compensation, the Complainant is entitled for ?
We perused and gone through the terms and conditions mentioned in the Warranty Booklet and warranty card where it is clearly mentioned about the date of purchase of Air Conditioner , date of installation and from which date warranty starts, the period of warranty and about the four free services to the customer. The Opposite Party No.1(one) in his written statement at para-2(two) submitted that the allegation made in para -1(one) of the Complaint petition is false and hence denied. In para-2 (two) of the written statement Opposite Party No.1(one) has not admitted the purchase of the Air Conditioner by the Complainant from him and also not admitted the period of warranty, but at para-11(eleven) of his written statement he admitted the purchase of Air Conditioner by the Complainant from him. So, these two statements at para-2(two) and para-11(eleven) are contradictory to each other. In the warranty booklet it is clearly mentioned that the period of warranty is 12(twelve) months i.e. 1(one) years but at para-2(two) of his written statements the Opposite Party No.1(one) submitted that the period of warranty is one year is false. It is the cardinal Principle of Law that a party can not be allowed to change his version from stage to stage. The change of version by the Opposite Party No.1(one) only point out to the falsity of the defense. A person who changes his version from time to time does not deserve any credit to be given. On careful consideration of the complaint petition, version and written argument of Opposite Party No.1(one), and after hearing both the Parties we found that purchase of the Air Conditioner from Opposite Party No.1(one) admitted by both the parties, which is also proved further through the documentary evidence annexed in the case record. We also found that the defects in the Air Conditioner started just after two months of its purchase which is within the period of warranty. The Opposite Party No.1(one) also admitted at para-12(twelve) of his written statement about the receive of Pleader's Notice, but it is seen that even after receive of the Pleader Notice, Opposite Party No.1(one) and so also no other party have replied who are well responsible for the after sale service, which clearly shows that the Opposite party have no care to the Complainant.
In the warranty booklet, it is clearly mentioned at clause-2(two) of the terms and condition of the warranty that, only the company or its authorized service agent/Dealer will service/repair/attend to/install/reinstall the Air Conditioner. So, the Opposite Parties have every responsibility to give after sale service to the customer after receive of the complaint, as because is is within the warranty period.
The Opposite Party No.2(two) and No.3(three) were also neither contested in this case to counter that, there is no defect in Air Conditioner. They have also not filed their version and also failed to adduce any evidence before the forum that there is no defect in Air Conditioner or there is no complaint from Complainant at any point of time. This clearly shows that they are will fully disobeying the orders of the court.
The point whether the Complainant approached the Opposite Party No.2(two) and No.3(three) and got denied the services of Opposite Party No.2(two) and No.3(three) is under Question, as the Complainant was not able to prove it through any document or any kind of evidence but in absence of the Opposite Party No.2(two) and No.3(three) in proceeding and the related neglect shown brings weight to the grievance of the Complainant and forum views that if the Opposite Party No.2(two) and No.3(three) are not giving due regards to the court proceeding, what kind of attention they would be giving to common man. Thus the version of the Complainant is accepted.
On the whole it is well understood that, a purchase occurred with some hope and aspirations and specially the Air Conditioner is purchased by the Complainant for his self comfort, which are not full filled and the purchaser suffered from the transaction to a considerable high amount frustrating the whole purpose of transaction. After 2(two) months of its purchase if there is any defect will started in the Air Conditioner how the people would have faith on the branded company.
So, due to these act and attitude of the Opposite Parties, the Complainant has not only suffered mentally but also got financial loss and deprivation of physical comfort and the purpose of purchasing of Air Conditioner by him also get frustrated.
Since the Complainant has prove that the defect was found during the warranty period and the Complainant approached the Opposite Parties within the warranty period intimating them the fault in the Air Conditioner and then also Opposite Parties don't case to the customer hence, gross negligence and deficiency of services in providing proper service to the customer lies with the Opposite Parties. In these circumstances the complaint petition is allowed.
- O R D E R -
The Opposite Parties are directed jointly and severally to compensate the Complainant with a new Air Conditioner with similar description with in thirty days from the date of this Order i.e. Dt.16/01/2013, failing which 18%(eighteen percent) interest per annum will be charged on the original price of the Air Conditioner i.e. Rs.22,800/-(Rupees twenty two thousand eight hundred)only till final realization of the awarded amount. The Complainant is directed to return the defective Air Conditioner to the Opposite Party No.1(one) at the time of receiving the new Air Conditioner.
Accordingly case is disposed off.
Typed to my dictation
and corrected by me.
I agree, I agree,
( Miss Rajlaxmi Pattnayak) (Smt. Anjali Behera)
P r e s i d e n t. M e m b e r.
