Date of filing: 28.03.2019
Date of disposal: 06.06.2023
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION
THIRUVALLUR
BEFORE TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law) .…. PRESIDENT
THIRU.P.VINODH KUMAR, B.Sc., B.L., ......MEMBER-I
THIRU.P.MURUGAN,M.Com.ICWA(Inter),B.L., ....MEMBER-II
RBT/CC. No.89/2022
THIS TUESDAY, THE 06th DAY OF JUNE 2023
(CC.No.82/2019 sent from DCDRC, Chennai North)
Mr.K.Ravi, S/o.G.Kumar,
No.64/1, Justice Rathinavel Pandian Road,
George Nagar,
Mogappair, Chennai 600 037. ……Complainant.
//Vs//
1.ETA General Private Limited,
Rep. by its Manager,
Corporate Office,
New No.71, Old No.63,
ETA Star House, 3rd Floor,
Sterling Road,
Nungambakkam, Chennai 600 034.
2.Viveks Private Limited,
Rep. by its Manager,
Registered Office,
No.150/68, Luz Church Road,
Mylapore, Chennai 600 004. .......Opposite parties.
Counsel for the complainant : M/s.B.Sivakumar, Advocate.
Counsel for the 1st opposite party : M/s.Jayaraman, Advocate.
Counsel for the 2nd opposite party : Mr.K.P.C.Mogan, Advocate.
This complaint has been filed before DCDRC, Chennai (North) as CC.No.82/2019 and transferred to this commission by the order of the Hon’ble State Consumer Disputes Redressal Commission, Chennai and taken on file as CC.No.89/2022 and this complaint coming before us on various dates and finally on 08.05.2023 in the presence of M/s.B.Sivakumar counsel for the complainant and Mr.K.P.C.Mogan counsel for the 2nd opposite party and upon perusing the documents and evidences of both sides, this Commission delivered the following:
ORDER
PRONOUNCED BY TMT. Dr.S.M. LATHA MAHESWARI, PRESIDENT.
This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service aginst the opposite parties in selling a defective Air Conditioner unit and failing to rectify the same along with a prayer to direct the opposite parties to refund a sum of Rs.57,400/- being the cost of Air Conditioner and to pay a sum Rs.5,00,000/- towards compensation for the mental agony and hardship suffered by the complainant along with cost of the proceeding to the complainant.
Summary of facts culminating into complaint:-
Being dissatisfied and aggrieved by the act of the opposite parties in selling a defective Air Conditioner unit and failing to rectify the same the present complaint was filed.
It was the case of the complainant that he had purchased an Air Conditioner from the 2nd opposite party for Rs.52,250/- vide bill No.027006 dated 01.04.2017. However, Air Conditioner that was delivered was faulty with some manufacturing defect. The Air Conditioner did not cool the room even on powerful mode since the date of installation. Therefore the complainant raised a complaint on 26.05.2017 for which the 2nd opposite party promised to resolve the issue by 29.05.2017 but nobody visited the complainant’s premises. The complainant called the 2nd opposite party on 30.05.2017 and he was promised that the same would be attended immediately, but no one attended the same. The 2nd opposite party without even visiting the premises of the complainant had raised job card No.970319 and closed the same. The 2nd opposite party never attended the complainant’s complaint nor visited his premises based on his complaint. Since the 2nd opposite party cheated the complainant, the complainant raised the issue before the 1st opposite party. The 1st opposite party vide his complaint No.CHE11705260162 has assured the complainant that the same has been forwarded to the concerned support department. But no action has been taken. The opposite parties had caused monetary loss and mental agony to the complainant in not attending the fault when called for. Hence the complainant issued legal notice on 05.01.2018 for which the 1st opposite party sent a reply dated 29.01.2018 vaguely admitting the guilt and offered to provide satisfactory service to the complainant. Further the 2nd opposite party also sent reply dated 01.02.2018 and offered to provide best service but both the opposite parties had failed to provide any service to the AC unit. Thus aggrieved by the act of the opposite parties the present complaint was filed to refund the bill amount of Rs.57,400/- along with compensation of Rs.5,00,000/- and cost of the proceedings.
Crux of the defence put forth by the 1st opposite party:-
The 1st opposite party filed version disputing the complaint allegations that as per their verification the complainant had purchased an Air Conditioner on 01.04.2017. Usually after purchasing the Ac, the customer or the dealers who sold the AC have to register a call for installation to the opposite parties but no call was registered for installation from the complainant. The AC was installed by a third party. If the opposite party had not installed the product, as per the terms and conditions of the warranty clause No.6 (a) warranty is null and void as “The Air Conditioners not purchased from the authorized dealer of ETS General Private Limited and improper installation by unauthorized personnel“. The complainant had registered a complaint in the customer care of the opposite parties on 26.05.2017 and the same was registered in job No.CHE11705260168 as the AC unit was noisy. Immediately on receipt of the complaint a technician visited the complainant‘s place and contacted the complainant over phone. There was no response and hence the said complaint was cancelled on 29.06.2017. After receiving the legal notice on 09.01.2018 a technician had visited the complainant place and contacted the complainant over phone to attend and access the AC but the complainant was reluctant to oblige and did not allow the opposite parties technicians to inspect and access the AC condition. But there was no response from the complainant. The opposite party had not sold an AC with manufacturing defect. The opposite parties was having good name in the market and there was no manufacturing defect in the product. Neither there is any deficiency on the part of the opposite parties in rendering its service towards the complainant. Based on the complainant’s complaint the authorized Dealer’s personnel tried to contact the complainant to resolve problem but the complainant never attended the phone calls made by the authorized service person and even they visited his residence personally but all went vein. It was false and baseless that without visiting his premises they had raised job No.970319 and closed the same. Hence, the complaint allegation that they never attended their premises was false. As per the terms and conditions of the warranty clause No.3(a) “Subject to the above clause, any part of the Air Conditioner found defective, due to faulty material or workmanship, during the warranty period, shall be repaired or replaced with functionally working equivalent part by the company or authorized sales and service dealers only” and clause No.3 (b) that Part of the unit replaced or repaired under the terms of the warranty were warranted for the remaining period of the original warranty period. Thus the 1st opposite party prays for dismissal of the complaint.
Crux of the defence put forth by the 2nd opposite party:-
It was admitted that the complainant had purchased one ETA General brand Split Air conditioner 1.5 ton from Manapakkam, Chennai Ware house that belongs to 2nd opposite party. The 2nd opposite party was selling various brand Air Conditioners and the sales persons would always explain the features of all the Brand Air Conditioner and it was the customer outlook to choose a particular brand Air Conditioner of his choice. The complainant never contacted the 2nd opposite party after the Air Conditioner was installed at his residence. Hence the allegations that the complainant has complained to the 2nd opposite party on 26.05.2017 and the 2nd opposite party has raised a job No.970319 and the same was closed by the 2nd opposite party even without visiting the premises of the complainant was refuted as false. The said job No.970319 was raised by the 2nd opposite party for installation on 03.04.2017.
Even after receipt of legal notice two service technicians one from 1st opposite party and another from the 2nd opposite party had visited the complainant place on 10.01.2018 and contacted the complainant over phone to attend and assess the Air Conditioner. But the complainant did not permit the service technician to inspect and assess the machine. Hence the 2nd opposite party requested the complainant to permit the service technician to assess and inspect the Air Conditioner through letter dated 01.02.2018. But the complainant instead of calling the opposite parties to inspect the AC, has come forward with complaint that the opposite parties delivered a faulty product and failed to attend the fault. Thus they sought for the complaint to be dismissed.
On the side of complainant proof affidavit was filed and submitted documents marked as Ex.A1 to A4. Though the 1st opposite party filed written version they did not file any proof affidavit, written arguments and also not adduced any oral arguments. On the side of 2nd opposite party proof affidavit was filed and document marked as Ex.B1 was submitted on their side.
Points for consideration:
Whether the complaint allegations with regard to the deficiency in service committed by the opposite parties by selling an Air Conditioner unit with inherent defect and also failing to rectify the same has been proved by the complainant by admissible evidence?
If so to what reliefs the complainant is entitled?
Point No.1:-
The following documents were filed on the side of complainant in support of his contentions;
Bill issued by the 2nd opposite party dated 01.04.2017 was marked as Ex.A1;
Legal notice issued by the complainant to the opposite parties dated 05.01.2018 was marked as Ex.A2;
Reply of 1st opposite party dated 29.01.2018 was marked as Ex.A3;
Reply of 2nd opposite party dated 01.02.2018 was marked as Ex.A4;
On the side of 2nd opposite party the following document was submitted in support of their defence;
Job Sheet was marked as Ex.B1;
Heard the oral arguments of the complainant and perused the written arguments filed by the complainant and the 2nd opposite party along with other pleadings and material evidences produced before this commission.
The crux of the oral arguments of the complainant is that he purchased the Air Conditioner unit ASGA18 for a consideration of Rs.52,250/- on 01.04.2017. On installation it was found that the Air Conditioner unit was having manufacturing defect as it caused huge noise and did not provide any cooling to the room even on powerful mode. On 26.05.2017 a complaint was filed and the 2nd opposite party promised to resolve the problem. However, nobody attended the problem. Again on 29.05.2017 the 2nd opposite party promised to attend the unit but did not turn up. Hence the complainant raised the issue to the 1st opposite party vide complaint No. CHE11705260162. Though the 1st opposite party assured that the complaint was forwarded to the concerned department but the fault was not attended. The Air Conditioner unit was lying simply in the complainant’s premises. Hence legal notice was sent to both parties. Both parties sent reply notice offering to provide best service but both did not turn up. Thus the counsel relying upon the warranty issued on the product for 12 months for all parts except front grille and plastic parts. The compressor was given additional guaranty. Thus he sought for the complaint to be allowed and the amount to be refunded.
2nd opposite party filed written arguments stating that the complainant after installation of Air Conditioner never contacted them and on receipt of the legal notice they offered to repair after assessing the Air Conditioner unit but the complainant did not allow them for the same. Hence, it is submitted that after receipt of legal notice both opposite parties are ready to provide satisfactory service and that it is mandatory to inspect the unit for any claim or settlement. Thus it is prayed to order the complainant to permit them to attend the fault in the AC unit.
On appreciation of the entire pleadings and material evidences produced by both the parties the factum of purchase of Air Conditioner unit, installation was not disputed by either parties. However, the only grievance of the complainant is that the product supplied to him suffers with some inherent manufacturing defects. However, except stating that the product was not giving cooling but create huge noise, the complainant did not specifically provide any particulars as to the defect in the Air Conditioner unit. When inherent manufacturing defect is alleged by a party it should be sufficiently proved by expert evidence which is not done in this case. However, we could presume that the product supplied did not work satisfactorily to the complainant and when complained both opposite parties did not turn up to rectify the same. But only after issuance of a legal notice both opposite parties had come forward to provide satisfactory service. Both the opposite parties had contended that though they sent their service personnel the complainant did not permit them to attend the Air Conditioner unit. But no documentary evidence was filed by them in support of the said version like Job Card prepared for the fault raised by the complainant, attended by Engineer, refused by complainant etc. In such facts and circumstances we could safely come to the conclusion that both opposite parties had miserably failed to attend the complaint raised by the complainant with respect to the Air Conditioner unit supplied by them especially when the product was within the warranty period and when the complaint arose soon after the installation and thereby committed deficiency in service. Thus, this point is answered accordingly holding that the opposite parties had committed deficiency in service in selling a defective Air Conditioner unit and also in failing to rectify the same which was proved by the complainant by admissible evidence.
Point No.2:-
The complainant has submitted by way of arguments that he wanted only refund of the amount. However, when the inherent manufacturing defect was not proved by him and taking into consideration the version of opposite parties that they were ready to service the Air Conditioner unit to the satisfaction of the complainant we declined to award the refund of the cost of the product but direct the opposite parties to rectify the defects within four weeks from the date of receipt of copy of this order to the satisfaction of the complainant. But if they failed to do so, the complainant is entitled for refund of the said amount on returning back the product to the opposite parties. For the inconvenience and hardship caused to the complainant we award a compensation of Rs.10,000/- to be paid by both parties together along with cost of Rs.5,000/- towards litigation expenses.
In the result, the complaint is partly allowed against the opposite partyies 1 & 2 directing them
a) To rectify the defects within four weeks from the date of receipt of copy of this order or in alternative to refund a sum of Rs.57,400/-(Rupees fifty seven thousand and four hundred only) to the complainant and the complainant to return back the Air Conditioner;
b) To pay a sum of Rs.10,000/- (Rupees ten thousand only) towards compensation for the mental agony caused to the complainant;
c) To pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant.
d) Amount in clause (a) if not paid within four weeks from the date of receipt of copy of this order, an interest of 6% will be applicable on the said amount from the date of complaint till realization.
Dictated by the President to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Commission on this the 06th day of June 2023.
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MEMBER-II MEMBER I PRESIDENT
List of document filed by the complainant:-
Ex.A1 01.04.2017 Bill. Xerox
Ex.A2 05.01.2018 Legal notice. Xerox
Ex.A3 29.01.2018 Reply of 1st opposite party. Xerox
Ex.A4 01.02.2018 Reply of 2nd opposite party. Xerox
List of documents filed by the 2nd opposite party:-
Ex.B1 03.04.2017 Job Sheet. Xerox
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MEMBER-II MEMBER I PRESIDENT
