Complaint No: 173 of 2022.

                                                                Date of Institution: 09.08.2022.

                                                                        Date of order: 01.03.2024.

Neelam Bala Wife of Kapil Dev, resident of Shankar Nagar, Gurdaspur, Mobile No. 84271 – 55414.

                                                                                                                         ….....Complainant.

        VERSUS

1.       Ajay T.V. Centre, Tibri Road, A.G.M. Palace, Gurdaspur, through its Partner / Proprietor.

2.       Managing Director, JOHNSON CONTROLS - HITACHI AIR CONDITIONING INDIA LIMITED, 9th Floor, Abhijeet – 1, Mithakali Six riads, Ahmedabad, Gujarat. Pin Code – 380006.                                                                                                                                                     

                                                                                                                            ….Opposite Parties.

                                             Complaint U/S-35 of Consumer Protection Act.

Present: For the Complainant: Sh.Akash Mahajan, Advocate.

             For the Opposite Party No.1: Sh.Rahul Puri, Advocate.  

             Opposite Party No.2:  Exparte.

Quorum: Sh.Lalit Mohan Dogra, President, Sh.Bhagwan Singh Matharu, Member.

ORDER

Lalit Mohan Dogra, President.

          Neelam Bala, Complainant (here-in-after referred to as complainant) has filed this complaint under section 35 of the Consumer Protection Act, (here-in-after referred to as 'Act') against Ajay T.V. Centre Etc. (here-in-after referred to as 'opposite parties).

2.       Briefly stated the case of the complainant is that the complainant has purchased Hitachi AC 318HDDO Split A.C. for Rs.45,000/-  from Ajay T.V. Centre, Tibri Road, A.G.M. Palace, Gurdaspur and as such the complainant is consumer within the meaning of section 35 of the Consumer Protection Act. The above said product purchased by the complainant has two years warranty period as per terms and conditions of the policy of the company. It is pleaded that at the time of purchase of the product the complainant went to purchase Window A.C. The complainant told the OP No. 1 that she wants to install A.C. in her bed room. However, it was told by the OP No. 1 that the complainant should purchase Split A.C. of Hitachi 318HDDO instead of window type A.C. as Split A.C. has Low Noise Level than the window A.C. and would be comfortable to sleep. It was further told by the OP No. 1 that split A.C. purchased by the complainant i.e. Hitachi Air Conditioner, 1.5 Ton 5 Star Model No. 318HDDO has noise level of 43 DB. The main objective behind the installation of the Split A.C. than the window A.C. was low noise level than the window type A.C. It is further pleaded that after the installation of the Air Conditioner purchased it revealed that it has some manufacturing defect due to which it generates huge noise and failed to work properly. The level of noise is so high that it was impossible for the complainant to sleep after switching on A.C. The noise produced by the A.C. is not bearable. There was leakage of water / some liquid from the indoor unit of the A.C. and the compressor of the A.C. was not working properly. It is further pleaded that the complainant lodged various complaints at Hitachi service center from her mobile number since the A.C. was not working properly. The person who came to attend the complaint from Hitachi service center tried to remove the defect, but the defect being incurable and manufacturing defect, hence they failed. The Mechanic told the complainant that the product has some manufacturing defect and would be replaced with new one. It is further pleaded that the complainant contacted the OP No. 1 and asked for replacement of A.C. as it is within period of Guarantee / Warranty. The OP No. 1 promised the complainant that the product will be replaced with the new one as the warranty period of two years is pending. As such, on the assurance of the opposite party No. 1, the complainant kept on waiting, but the OP No. 1 failed to replace the above said product purchased. It is further pleaded that due to this illegal act and conduct of the opposite parties the complainant has suffered great loss and also suffered mental agony, Physical harassment and inconvenience. It is further pleaded that there is a clear cut deficiency in service on the part of the opposite parties.

          On this backdrop of facts, the complainant has alleged deficiency and unfair trade practice on the part of the opposite parties and prayed that necessary directions may kindly be issued to the opposite parties to replace the above said product with new one and a sum of Rs.50,000/- (Rupees Fifty Thousand Only) as compensation for the sufferings of the complainant.

3.       Upon notice, the opposite party No.1 appeared through counsel and contested the complaint and filing their written reply by taking the preliminary objections that the present complaint of the complainant is not maintainable in the present form and no cause of action has accrued to the complainant against the answering OP No. 1 for filing the present complaint. It is pleaded that the complainant has no locus standi to file the present complaint and the present complaint is sheer misuse and abuse of the process of law. The complainant has not come to the Hon’ble Court with clean hands and has filed a false complaint with sole motive to cause unnecessary harassment and inconvenience to the answering OP. It is further pleaded that the complainant has purchased the Split A.C. of Hitachi 318HDDO at her own with her own will and accord and the answering OP No. 1 never advised the complainant to purchase the above mentioned A.C. instead of Window type A.C. as alleged in this complaint and the answering OP is not a manufacturer of the A.C. in question. It is further pleaded that neither there was any defect in the A.C. so supplied to the complainant, nor the complainant has lodged any complaint with the answering OP at any point of time that there is any kind of defect in the A.C. Hence, question of on the assurance of the answering opposite party No. 1, the complainant kept on waiting does not arise at all. Story mentioned in this complaint is bundle of lie and having no ring of truth. It is further pleaded that the answering OP has supplied a defect free A.C. to the complainant which is manufactured by the OP No. 2. To the best of knowledge of the answering OP and as per information given by Mechanics who checked the A.C, there is no defect in the A.C, hence question of replacing the same or refunding its price by the answering OP to the complainant does not arise. It is further pleaded that the complainant has filed the present false and frivolous complaint by setting up totally a false and concocted story with sole motive to cause unnecessary harassment and to extract money from the answering OP. The complaint is sheer misuse of the process and the same is liable to be dismissed.

          On merits, the opposite party No.1 has reiterated their stand as taken in legal objections and denied all the averments of the complaint and there is no deficiency in service on the part of the opposite party. In the end, the opposite party prayed for dismissal of complaint with costs.

4.       Opposite party No.2 did not appear despite the service of notice and was proceeded against exparte vide order dated 22.09.2022.

5.       Learned counsel for the complainant has placed on file affidavit of Neelam Bala, (Complainant) as Ex.CW-1/A alongwith other documents as Ex.C-1 to Ex.C-3 alongwith complaint.

6.       Learned counsel for the opposite party No.1 has placed on file affidavit of Sh. Pankaj Gupta, (Partner, M/s. Ajay T.V. Centre, Gurdaspur) as Ex.OP-1/1 alongwith other document as Ex.OP-1/2 alongwith reply.

7.       Rejoinder not filed by the complainant.

8.       Written arguments not filed by both the parties.

9.       Counsel for the complainant has argued that complainant had purchased one Split Air Conditioner on the assurance of opposite party No.1 that Window Air Conditioner gives very huge noise and as such opposite party No.1 compelled the complainant to buy Split A.C.. It is further argued that after installation it was recorded that the Split A.C. was having manufacturing defect and was giving huge noise and there was leakage in the indoor unit of the A.C. and compressor was not working. Failure to replace and repair the said A.C. amounts to deficiency in service on the part of the opposite parties.

10.     On the other hand counsel for the opposite party No.1 has argued that opposite party No.1 had never insisted the complainant to purchase Split Air Conditioner. It is further argued that complainant had never lodged any complaint with answering opposite party and the A.C. of the opposite party No.1 is working in proper condition and as such there is no deficiency in service on the part of opposite party No.1 and complaint is liable to be dismissed.

11.     Opposite party No.2 remained exparte.

12.     We have heard the Ld. counsels for the complainant and opposite party No.1 and gone through the record.

13.     To prove her case complainant has placed on record her duly sworn affidavit Ex.CW-1/A, copy of tax invoice Ex.C1, copy of messages Ex.C2, copy of warrant card Ex.C3 including copy of report of Local Commissioner and affidavit of Local Commissioner whereas opposite party No.1 has placed on record affidavit of Pankaj Gupta Partner Ex.OP-1/1 and copy of tax invoice Ex.OP-1/2.

14.     It is admitted fact that complainant had purchased one Hitachi AC 318HDDO Split AC from opposite party No.1. It is further argued that said A.C. was having warranty of one year from the date of invoice. The only disputed issue for adjudication before this Commission is whether the A.C. sold to the complainant was having any manufacturing defect or required to replacement.

15.     Perusal of tax invoice Ex.C1 shows that the A.C. in question was purchased on 08.08.2021 and the complainant had lodged first complaint as per Ex.C2 on 07.03.2022 and thereafter complaint has been closed on 07.08.2022 and thereafter again complaint has been lodged on 07.12.2022 it was closed and again complaint was lodged. Perusal of said messages shows that the opposite parties have although closed the said complaints but have not mentioned as to what was the defect in the A.C. which was rectified which shows that the defect if any was never rectified by the opposite parties. Opposite party No.1 has pleaded that opposite party No.1 never received any complaint regarding defect in the A.C. and we are of the view that if there was no defect in the A.C. and the complainant did not make any complaint then why opposite parties replied the complaints mentioned in Ex.C2.

16.     During the pendency of the complaint counsel for the complainant has moved an application for the examination of the A.C. through expert on which Sh.Deepak Singh was appointed as Local Commissioner to examine the A.C. who has submitted his report, as per which said Local Commissioner had inspected the A.C. on 21.12.2023 and found that the A.C. is having leakage in the cooling gas which is filled in outdoor unit of the A.C. It is further mentioned that no cooling gas was present in the outer unit of the A.C. and A.C. is not working at all due to the manufacturing defect. The said report of the expert is supported by affidavit. Counsel for the opposite party No.1 has not rebutted the report of the said expert nor made any attempt to cross-examine the said witness Sh.Deepak Singh, Local Commissioner which shows that opposite party No.1 is admitted the report of Local Commissioner as correct. We are also do not find any deficiency in the report given by the Local Commissioner. As such sale of defective A.C. and failure to repair the same is deficiency in service on the part of the opposite party No.1.

17.     We have also relied upon judgment of Hon'ble Supreme Court of India reported in S.L.P. No.9896 of 2010 D/d. 24.11.2010 in case titled as C.N. Anantharam Vs. Fiat India Ltd. and others etc. wherein it has held as under:-

          "Consumer Protection Act, 1986, Sections 2(f) and 23 - Manufacturing defect in vehicle - Diesel vehicle - Alleged to have      manufacturing defect - Engine from which certain noises were allegedly emanating replaced - Explained that engine operating on diesel makes a rattling noise and there was no manufacturing defect therein - Still not satisfied, petitioner filed complaint before district consumer Forum - Forum directed refund of purchase  price, cost of repairs with interest - Appeal by respondents to National Commission - National Commission directed to deliver the vehicle to the complainant after proper checking by an independent technical expert with certificate of such expert that the vehicle was free from any defect - Upheld - If inherent manufacturing defect found in the vehicle by such expert, petitioner to get refund of whole amount spent with interest".

After gone through the facts, evidence on record and going through judgment referred above we have no hesitation in holding that failure to replace the A.C. with manufacturing defect amounts to deficiency in service on the part of both the opposite parties. Accordingly, opposite parties are directed to replace the A.C. sold to the complainant.

18.     Accordingly, present complaint is partly allowed and opposite parties are directed to replace the A.C. with new A.C. within 30 days of the receipt of copy of this order. If, order is not complied with within 30 days as given above, then opposite party No.1 shall be liable to refund Rs.45,000/- to the complainant alongwith interest @ 9% P.A. from the date of filing of the present complaint till realization. Complainant is also directed to hand over the old A.C. after receiving the new A.C. from opposite party No.1.

19.     The complaint could not be decided within the stipulated period due to heavy pendency of Court Cases, vacancies in the office and due to pandemic of Covid-19.

20.     Copy of the order be communicated to the parties free of charges. File be consigned.                                                                                                                                                               

            (Lalit Mohan Dogra)

                                                                                      President.  

Announced:                                                   (B.S.Matharu)

March. 01, 2024                                                    Member.

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