DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.86 of 28-03-2017

Decided on 09-11-2017

Manoj Oberoi aged about 41 years S/o Balbir Pal Oberoi R/o # 76, Street No.3, New Shakti Nagar, Bathinda.

........Complainant

Versus

1.Daikin Air Conditioning India Pvt. Ltd., l2th Floor, Building No.9, Tower-A, DLF Cyber City, DLF Phase-3, Gurgaon-122002, through its Manager/M.D./Director/Incharge.

2.Daikin Air Conditioning India Pvt. Ltd., Regd. Office: 210, 1st Floor, Okhla Industrial Area, Phase-3, Delhi-110020, through its Manager/M.D/Director/Incharge. (Deleted).

3.Microcool Refrigeration, (Authorized Service Centre), 6492, Natha Singh Namberdar Street, Mehna Chownk, Bathinda Now at H.No.21287, Gali No.2-B, Ajit Road, Bathinda, through its Prop./Manager/M.D/Partner/Incharge Mr.Amrik Singh. (Deleted)

4.Ravi Enterprises, H.O.: # 4551, Dhobi Bazaar, Bathinda, through its Prop./Owner.

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986

QUORUM

Sh.M.P Singh Pahwa, President.

Sh.Jarnail Singh, Member.

Present:-

For the complainant: Sh.Naresh Garg, Advocate.

For opposite party No.1: Sh.Sanjay Goyal, Advocate.

Opposite party Nos.2 and 3: Deleted.

Opposite party No.4: Ex-parte.

ORDER

M.P Singh Pahwa, President

1. The complainant Manoj Oberoi (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties Daikin Air Conditioning India Pvt. Ltd. and Others (here-in-after referred to as opposite parties).

2. Briefly, the case of the complainant is that opposite party No.1 and 2 are manufacturer-cum-importer of Air Conditioner model FTKP50Q Inverter 1.5 Ton Daikin. Opposite party No.4 is the dealer/distributor of opposite party Nos.1 and 2. It sells Air Conditioner of Daikin. Opposite party No.3 is the service centre of opposite party No.1 and 2 at Bathinda. The complainant purchased one Air Conditioner of Daikin 0003441 for Rs.46,000/- vide bill No.40 from opposite party No.4 on 8.4.2016 with sufficient full guarantee of 1 year on full Air Conditioner and 7 years guarantee on motor/compressor.

3. It is alleged that from the day one, the Air Conditioner is not working as after sometime, it started multiple problems i.e. cooling not proper and noise etc. The complainant lodged the complaint to opposite party No.4, but it told him that the service centre is opposite party No.3 and it has no concern with guarantee and service. He several times visited the service centre and opposite party No.4 and also lodged complaints on phone and e-mails with opposite party Nos.1 and 2, but to no effect. In the month of June 2016, the service engineer checked the Air Conditioner and clearly stated that there is manufacturing defect and company will be totally responsible for the same. Thereafter the complainant again lodged the complaint with opposite party No.4 at Bathinda and opposite party No.1 and 2 representative visited the shop of opposite party No.4, but nobody was ready to listen him. On 9.3.2017, the complainant again lodged the complaints with opposite parties at mobile, e-mail and SMS, but they were not ready to rectify the Air Conditioner or change it with new one. There is manufacturing defect in the Air Conditioner, which cannot be removed.

4. It is also alleged that on 11.3.2017, the service engineer of opposite party No.3 came and checked the Air Conditioner and on receiving (acknowledgment), the complainant again mentioned that the Air Conditioner is not working properly from day one and not maintaining room cooling temperature. As such, he was not satisfied. He also got issued legal notice dated 10.3.2017 to opposite parties, but to no response.

   On this backdrop of facts, the complainant has alleged deficiency in service on the part of opposite parties. He has alleged that he has suffered great mental tension, agony, botheration, harassment and financial loss and claimed Rs.46,000/- i.e. price of Air Conditioner with interest and Rs.25,000/- as compensation and Rs.22,000/- as cost of litigation. Hence, this complaint.

5. In view of statement suffered by counsel for complainant, name of opposite party Nos.2 and 3 was deleted from the array of opposite parties.

6. Upon notice, none appeared on behalf of opposite party No.4. As such, ex-parte proceedings were taken against opposite party No.4 whereas opposite party No.1 appeared through its counsel and contested the complaint by filing the written version. In the written version, opposite party No.1 has raised the preliminary submissions that opposite party Nos.1 and 2 are companies incorporated under the Companies Act, 1956.

7. Thereafter opposite party No.1 has raised the preliminary objections regarding maintainability of complaint; territorial jurisdiction of this Forum and cause-of-action.

8. It is also pleaded that as per Clause 17 of warranty terms, Courts in Delhi shall have exclusive jurisdiction in the event of any dispute and the complainant himself agreed to the jurisdiction at Delhi by virtue of terms and conditions of warranty card. As such, the complaint is liable to be dismissed.

9. It is further pleaded that the allegations of the complainant can only be determined with proper analysis or test of the goods as per mandatory provision contained under 'Act'. The alleged defects are based on his conjecture and surmises, which can never take the shape of the evidence. As such, in this case, this Forum is left with no option but to proceed with the complaint as per provisions of Section 13(1) (c) to (g). The goods in question i.e. Daikin Air conditioner shall be sent to appropriate laboratory as defined U/s 2(1) (a) of 'Act' at the costs and expenses of the complainant. The complaint has been filed only to harass and gain undue advantage and unjustified monies from opposite parties. It deserves to be dismissed in limine. The complainant is highly disputed. The alleged aspect can be properly adjudicated after taking detailed evidence of parties. As such, this complaint cannot be tried before this Forum where the complaints are adjudicated through summary trial only. The complaint being frivolous and vexatious is liable to be dismissed under 'Act'. To support its version, opposite party No.1 has quoted some case law, reference of which is not considered necessary at this stage.

10. Regarding facts of the case, it is admitted that the complainant purchased one Air Conditioner for Rs.46,000/- vide invoice No.40 from opposite party No.4, manufactured by opposite party Nos.1 and 2 on 8.4.2016. It is further mentioned that after installation of Air Conditioner at the premises of the complainant, it was working efficiently with his full satisfaction. As per rule, a technician is appointed whenever a service call/request is registered by the customer. Opposite party No.1 was in receipt of a service call from the complainant in the month of June 2016 complaining about cooling issues with Air Conditioner. After receiving the complaint, the service technician visited the premises of the complainant and duly inspected the machine for about 3 hours, but it was working absolutely fine as per the standards and even the cooling was perfect, which goes on to establish that there was no manufacturing defect in the Air Conditioner. After closing the service call/complaint, service report was shared with the complainant via e-mail dated 11.6.2016 to which he never objected. After first complaint call, he used the Air Conditioner for almost 9 months and again registered his service call in the month of March 2017, which was for Regular Maintenance Service of Air Conditioner. As per process, the technician was appointed, he immediately attended the service call and provided necessary services. After that, Air Conditioner was working fine and properly.

11. It is also asserted that the Air Conditioner was working as per the standards and complainant is complaining about the cooling effect without any base and technical know how of the machine. All other averments of the complainant are denied.

12. On merits, opposite party No.1 has controverted all the material averments, but it is also asserted that opposite party No.1 never gave any guarantee over its products and it provided only warranty for a period of one year on the parts of Air Conditioner and 5 years warranty on compressor. During the warranty period, opposite party No.1 is only liable for replacement of defective part of the product and terms and conditions of warranty nowhere provide for replacement of complete machine. All the qualities and features of the product are written in the product catalogue/brochures for the help of customer.

13. In further written version, opposite party No.1 has reiterated its stand as already revealed in the facts of the case and had controverted all the averments of the complainant. In the end, opposite party No.1 has prayed for dismissal of complaint.

14. Parties were asked to produce the evidence.

15. In support of his claim, the complainant has tendered into evidence his affidavit dated 6.7.2017, (Ex.C1); photocopy of e-mail, (Ex.C2); photocopy of retail invoice, (Ex.C3); photocopy of legal notice, (Ex.C4); photocopies of postal receipts, (Ex.C5 to Ex.C8); photocopy of service report, (Ex.C9) and submitted written arguments.

16. To rebut the claim of the complainant, opposite party No.1 has tendered into evidence affidavit of Anurag Mishra dated 29.6.2017, (Ex.OP1/1) and closed the evidence.

17. We have heard learned counsel for parties and gone through the file as well as written arguments submitted by learned counsel for complainant.

18. Learned counsel for complainant has reiterated his stand as taken up in the complaint and detailed above. It is further submitted by learned counsel for complainant that the material facts are not in dispute. It is not disputed that the complainant has purchased Air Conditioner from opposite party No.4, manufactured by opposite party Nos.1 and 2 on 8.4.2016. The complainant has also pleaded that he lodged complaint as there were cooling and noise problems in the Air Conditioner. Opposite party No.1 in the written version admitted receipt of complaint. It is also admitted by opposite party No.1 that the service technician visited the premises and inspected the machine. Of-course, it is further pleaded that the working of Air Conditioner was absolutely fine as per standards and cooling was perfect, but there is no evidence to support this version of opposite party No.1. Copy of inspection report was received by the complainant, which is Ex.C2. As per this report, the machine was checked from 5:15 P.M to 6:45 P.M i.e. for one and half hour. At the start of checking, room temperature was 32°c and it was 27°c at 5:45 P.M and 26°c at 6:45 P.M. There is no report to show that the temperature was further lowered from 26°c. In this checking report, the technician has simply asked the company to check data and reply. It is nowhere reported by the technician also that the machine is working absolutely fine and as per standards. Opposite party No.1 has also not produced any literature to prove that the minimum temperature will be upto 26°c only. The complainant has also produced another service report dated 11.3.2017, (Ex.C9). In this report also, he has reported that he is not satisfied as Air Conditioner is not working properly from day one. As such, it is proved that Air Conditioner is defective from the beginning. Opposite party No.1 has failed to remove the defect. In these circumstances, it is to be inferred that this problem is due to manufacturing defect. The complainant is entitled to replacement of the product or refund of its price with claimed compensation.

    To support these submissions, learned counsel for complainant has cited following case law:-

    i) 2010 (2) CPJ 26 U.T Chandigarh, Voltas Ltd. Vs. Amritpal Kaur;

    ii) 2010 (2) CPJ 111 (NC) Godrej & Boyee Vs. Raj Kumar Maini;

    iii) 2014 (2) CPJ 17 Jugnu Dhillon Vs. Reliance Digital Retial Ltd.;

    iv) 2013 (3) CPJ 25 Navdeep Solar Vs. Suhag Sari;

    v) 2006 (4) CPJ 27 Panasonic India Pvt. Ltd. Vs. M.M Sharma.

19. On the other hand, learned counsel for opposite party No.1 has submitted that the complaint is abuse of process of law. The complainant has alleged that there is manufacturing defect in the Air Conditioner, but there is no evidence to prove this fact. Of-course, he has also alleged noise problem, but there is no complaint at anytime. He himself has produced on record inspection report, (Ex.C2). This report rather proves proper cooling and working. As per this report, checking was started at 5:15 P.M when room temperature was 32°c and it was 27°c at 5:45 P.M. There was decrease of 5°c within half an hour. The temperature was 26°c at 6:45 P.M i.e. decrease of 1°c. This Forum can also take the judicial notice of the fact that after considerable decrease, it takes more time for further decrease. It is nowhere mentioned that there is no decrease in temperature after 6:45 P.M. Therefore, this report rather proves the proper working of the product. The complainant has not lodged any other complaint after this report till next service, which was got conducted on 11.3.2017. This fact also proves that the product was properly working. Of-course, in the service report dated 11.3.2017, (Ex.C9), the complainant has mentioned that he is not satisfied, but grouse is that Air Conditioner is not maintaining the room cooling temperature. There is no complaint regarding any noise problem. This Forum can also take judicial notice of the fact that the maintenance of room cooling depends on number of factors, which include size of room and normal temperature etc. The complainant has not produced any expert evidence to prove any manufacturing defect. The case law cited by learned counsel for complainant will not help the complainant because facts of the cited cases are clearly distinguishable. The manufacturing defect cannot be held proved only on the basis of one complaint lodged by the complainant. The complaint be dismissed.

20. We have given careful consideration to these rival submissions and gone through the case law cited by learned counsel for complainant.

21. Admitted facts are that the complainant purchased Air Conditioner from opposite party No.4, manufactured by opposite party Nos.1 and 2 on 8.4.2016. He lodged the complaint of cooling problem with opposite party No.1, it got the Air Conditioner checked through its technician. The report of technician was provided to the complainant also, copy of which is Ex.C2. A perusal of this report reveals that the checking of Air Conditioner started at 5:15 P.M when room temperature was 32°c. It was 27°c at 5:45 P.M i.e. after 30 minutes and 26°c at 6:45 P.M i.e. after further one hour. The point for determination is whether the product can be held perfectly working or still defective. The report of technician is incomplete. It is nowhere mentioned that there is no further decrease in the temperature after 6:45 P.M. Similarly, it is not mentioned that the product was working absolutely fine as per standards and cooling was perfect.

22. Of-course, the complainant has also alleged that there was noise problem, but there is no complaint regarding noise problem. He has himself relied upon the service report, (Ex.C9). As per this document, fault detailed was RMS, which stands for Regular Maintenance Service as per opposite party No.1. Therefore, the complaint was only regarding annual service. In these circumstances, conclusion is that the complainant has failed to prove any noise problem. Opposite party No.1 has also failed to ensure the proper cooling after 26°c. It amounts to deficiency in service.

23. Now, question is whether the complainant is entitled to replacement of product with new one or any other relief. He has simply mentioned that there is manufacturing defect. There is only one complaint, which was attended by the technician. From the evidence of the complainant and report of technician, it cannot be concluded that there is any manufacturing defect. The complainant has also not produced on record any warranty terms and conditions to support his demand for replacement of product with new one whereas categorically version of opposite party No.1 is that in no cost, warranty shall extend to replacement/return of product.

24. For the reasons recorded above, the complaint is partly accepted with Rs.5000/- as cost and compensation against opposite party No.1 and dismissed qua opposite party No.4. Opposite party No.1 is directed to repair the Air Conditioner in question as per warranty terms and conditions.

25. The compliance of this order be made within 45 days from the date of receipt of copy of this order.

26. The complaint could not be decided within the statutory period due to heavy pendency of cases.

27. Copy of order be sent to the parties concerned free of cost and file be consigned to the record.

    Announced:-

    09-11-2017

    (M.P Singh Pahwa)

    President

     

     

    (Jarnail Singh)

    Member