Delhi

East Delhi

CC/421/2017

CHANDER PAL SINGH - Complainant(s)

Versus

JOHNSON CONTROLS - Opp.Party(s)

31 May 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (EAST)

GOVT. OF NCT OF DELHI

CONVENIENT SHOPPING CENTRE, FIRST FLOOR,

SAINI ENCLAVE, DELHI – 110092

 

C.C. No.421/2017

 

 

	Chandra Pal Singh Nayal R/o. 49-D, Pocket-6, MIG Flats, Mayur Vihar Phase-3, Delhi-110096.	….Complainant
Versus
1.       2.     3.	Johnson Controls-Hitachi Air Conditioning India Ltd. Regd. Office; 9th Floor, Abhijeet, Mithakhali Six Road, Ahemdabad: 380006.   Navrang electronics, 517, F.I.E., Patparganj, Delhi-110092.   Johnson Controls-Hitachi Air Conditioning India Ltd. Ground Floor, 35, F.I.E., Patparganj Industrial Area, New Delhi-110091.	……OP1     ……OP2       ……OP3

 

Date of Institution: 12.10.2017

Judgment Reserved on: 31.05.2023

Judgment Passed on: 31.05.2023

                       

QUORUM:

Sh. S.S. Malhotra (President)

Sh. Ravi Kumar (Member)

Ms.Rashmi Bansal (Member)

 

Order By: Ms.Rashmi Bansal (Member)

 

 

ORDER

 

The present complaint is filed by the complainant against OP alleging the supply of the defective product and deficiency of service by the OP with a prayer for the refund of the price of the product with interest, compensation for harassment and mental agony and litigation cost.

1. The facts of the case unfolded from the complaint are that complainant had purchased from OP2 a split 1.5 T Hitachi Toushi 3200F( RAU 317KWD) on 27.03.2016 for Rs. 30,200/- and a stabilizer on 28.03.2016 for Rs. 2,000/- and it was got installed by OP1 on 28.03.2016, and even the installation charges of Rs. 6630/- was taken by the OP. The complainant submits that after a few days, the AC started giving trouble and the first complaint was lodged on 08.08.2016 with OP3. After many complaints about the said product, the OP3 after thorough checking, replaced the indoor unit of the AC (IDU) in September 2016. However, even after the re-installation of the replaced indoor unit, the gas leaked within few days and the unit was repaired twice subsequently before the end of 2016.
2. The complainant submits that the warranty of the said AC expired on 28.03.2017 but the issues with the product were not resolved. The complainant has sent detailed history of the product to the OP1 and also its customer care and requested for the repair of the product. In July 2017, both indoor and outdoor units were taken up by the OP to the service centre of OP1 and OP3. However, the issues with AC were not resolved and he faced the same issues again after some time. The complainant had also purchased an annual maintenance contract (AMC) from OP1 on 18.07.2017 on its advice for Rs. 3894/-. He was assured via emails that his issues would be redressed by the concerned team, but the grievance of complainant was never redressed. The complainant’s request for seeking a repair history of the product was also not replied to by OP3. The complainant submits that the AC is lying idle and useless without any utility to the complainant and the product was having an inherent defect and despite several visits to OP2 and OP3 and investing lots of time and attempts to get the defects cured in the machine, the same was never cured and unit still is not in working condition. The crucial part of the machine was replaced in September 2016 and later on in July 2017 after the warranty period however, that is also of no avail. The complainant submits that there is a deficiency in service on the part of OPs in providing service to the complainant and despite the purchase of a new product against full consideration, the several complaints within the warranty period itself indicates that there was inherent manufacturing defect in the AC which were not rectified by the OP’s engineers and Mechanics. The complainant submits that he had bought the product after investing a considerable amount of hard-earned money and thereafter several rounds of repair on the said AC, which made his life miserable and now the product is without any utility to him. The complainant submits that OPs are liable to refund Rs.42,724/ including the price of AC, stabilizer, installation fee, and annual maintenance contract along with interest at the market rate and to compensate 15,000/- towards mental agony and harassment with Rs. 10,000/- for Litigation cost.
3. Upon notice, all OP have appeared and filed their respective replies.
4. OP1 filed his reply on behalf of itself and OP3 declining any deficiency of service on its part by stating that the product delivered was not defective. OP1 submits that it is well supported by the service centres having excellent set-up for after-sales servicing of its products, manned by qualified and experienced persons, and that the customers of all the products manufactured by OP1 and OP3 are provided service through large network of authorized service centers and well qualified technicians.
5. OP1submits that the complaint is not maintainable as the same is an abuse of the process of law and the complainant has suppressed the material facts and made baseless allegations with mala -fide intention against OP1 and OP3 without any documentary evidence in support thereof. The purchase of the product in question from OP2 was having a warranty of one year thereon and a compressor warranty for a period of five years is not disputed. It is admitted by OP1 that the complainant approached OP1 regarding some issues with the said AC which were duly attended, and OP3 even as a goodwill gesture has replaced the IDU of the AC. The OP1 further submits that the complainant was not happy with their services and was adamant about the refund which cannot be granted as per warranty entitlement. The OP3 is still ready to conduct necessary repairs and maintenance on FOC if the complainant will allow the visit. Since the complainant lodged service requests again and again whereby he was advised to avail annual maintenance contract (AMC) as the warranty period had expired. OP1 further submits that the relief sought by the complainant is beyond the agreed terms and conditions of the warranty, according to which the replacement of the product or refund is expressly excluded and the warranty covers, only repair or replacement of any part thereof, which needs replacement or repair, for any reason of defective workmanship or defective components. In case of damage, the product can only be repaired on a chargeable basis paid by the customer.
6. OP1 further submits that the complainant has got the services from anunauthorized and unqualified technician who may have damaged internal parts of the IDU or ODU. It is submitted that the complainant has failed to prove either manufacturing defect in the product in question or any deficiency in service or unfair trade practice against OP1 and OP3 and therefore, he does not fall within the definition of consumer dispute under the Consumer Protection Act, 1986 and the complaint is liable to be dismissed.
7. OP1 has also taken objection to the territorial jurisdiction of this commission stating that the registered office of OP1 is at Ahmedabad which is outside the territorial jurisdiction of this commission and also as per the clause of the contract which reads “Courts in Ahmadabad shall have exclusive jurisdiction in the event of any dispute.”
8. OP2 has also filed its reply admitting the sale of the product to the complainant and stated that there is no cause of action against OP2and the complainant never raised any issue before him. The OP2 submits that it is not a necessary party and only a shop from where the complainant has purchased the above-stated AC, which was handed over to the complainant in perfect working condition. The services and the warranty of the air-conditioner are carried out by OP1 and OP3 and not by OP2.
9. The complainant has filed the rejoinder reiterating his version taken in his complaint. All the parties have filed their respective evidences supported by documents.
10. Documents filed by the complainant in support of his case,

1. A copy of the purchase order dated 27.03.2016 of AC, Ex. CW1;
2. A copy of the purchase order dated 28.03.2016, of stabilizer, Ex. CW2; 
3. The purchase order dated 28.03.2016 for the installation and other accessories, Ex. CW3;
4. The copies of the bunch of complaints registered with OP, Ex. CW4; (Colly)
5. The copies of emails, Ex. CW5; (Colly)
6. The copy of the purchase order dated 18.07.2017 of Annual Maintenance Contract, Ex. CW6;
7. The copy of the email communication with OP, Ex. CW7, Ex. CW8, Ex. CW9;
8. The pictures of the product, Ex. CW 10;

11. By way of the additional document, the complainant has filed the original invoice of the product, AC split 1.5 T Hitachi Toushi 3200F( RAU 317KWD) W/C KIT, DATED 27.03.2016 issued in his favour amounting to Rs.30,200/-  showing Rs. 5000/- was paid in advance and Rs. 25,200/- was paid on 26.03.2016.
12. This Commission has heard the Ld. Counsels for the parties and perused the document.
13. The purchase of the AC, the warranty of one year and the compressor warranty for five years are not disputed. Further, the product, within the warranty period, has developed various issues and multiple complaints were made by the complainant are also not in dispute. The documents on record establishes that OP1 has attended to them and even replaced the IDU of the AC in September 2016 i.e. approximately within 5 months of the sale of the product. The IDU of the AC is an important and crucial part of the AC for effective cooling and its replacement in the initial days of use establishes that the machinery was not in the proper working condition when it was sold to the complainant. The obvious reason for the replacement of the IDU must be its ineffective/ defective working, which forced OP3 to replace the IDU. The contention of the OP1 that it has replaced the IDU as a goodwill gesture cannot be accepted. Admittedly, even after the replacement of the IDU, the complaints of the complainant with respect to the proper functioning of the AC were not redressed. Complainant statement that the IDU and ODU of the AC were taken to OP1 Service Centre for repairs is not specifically denied by the OP1. In the absence of specific denial on the part of OP1. The same is deemed to be admitted.

Further, terms and conditions of the Warranty permit for the defects cure, free of charge, if the product may suffer from any defect that may arise due to any reason of defective workmanship or defective component within one year of sale which means that chances for the defect in the product are not denied.

14. Though admittedly, no expert report is filed by the complainant to show that product was suffering from manufacturing defects, however, admittedly OP is an expert in its field as per its own version in its reply and evidence but was not able to cure the defect in the product which belongs to it. Various complaints, job cards and emails placed on record by the complainant are not denied by the OP and the same were attended to by the OP. These documents show that the issue with the product was not resolved and that the issue was escalated to a higher scale at OP1’s end. Not even in a single email, the OP confirmed that the AC is defect-free and it does not require any further rectification from them nor they ever attempted to issue any fitness certificate or any email pertaining to the declaration that the product is defect free despite being an expert in its own field and product belong to them.
15. Moreover, though warranty T& C expressly excludes the replacement of the product or refund, however, if the defects fall beyond warranty, then the same is repairable on a chargeable basis. The terms and conditions of the warranty are silent about the error/fault which started within the warranty period and continues beyond the expiration of the warranty and are not redressed, which is a deficiency of service on the part of OP1.
16. Facts on record also show that even beyond the warranty period, there were several issues which were attended to by OP1 like a gas leak and repaired the product twice. This is also admitted fact of OP that they advised the complainant for taking AMC as the product was giving the problem repeatedly and warranty period was expired. OP1 also failed to produce on record the repair history to show number of times AC was repaired and what defects were cured. As far as the contention of the OP w.r.t. the repairing of AC by complainant from outside is concerned, the OP has not able to prove that contention.
17. All above facts and the documents on the record establishing that the said AC was not in 100% perfect working condition and the product was suffering from some major defects otherwise there would have been no reason for not functioning it properly despite attending the complaints multiple times. It is OP's duty to find out and to cure the defect. The customer who pays complete consideration for getting a new product, that too of an established brand, has genuine expectations that the product would work perfectly and without any issue.
18. It has been specifically stated by the OP1 itself that despite the expiry of the period of warranty, it has been attending to the complaints as and when made by the complainant and also advised him to take AMC, which conduct of OP1 further strengthen the fact that there was an irreparable defect in the system, which could not be corrected by OP during the period of warranty and ever after the warranty period.
19. The objection of the OP1 with respect to the territorial jurisdiction of this commission is bereft of any merit and hence rejected. The condition that ‘courts in Ahmednagar shall have exclusive jurisdiction in the event of any dispute’ does not bear any merit as it is the settled principle of law that the jurisdiction of the courts cannot be created or vested by the consent of the parties and even otherwise the cause of action w.r.t. repair has arisen within the territorial jurisdiction of this Commission.
20. The OP has expressed his willingness to conduct the necessary repairs and maintenance on FOC if the complainant allows the visit is of no consequence at this stage and hence the Commission is not referring any opinion on such argument of OP.
21. Therefore, considering the facts and circumstances of the case and documents on record, this Commission is of the considered view that the OP1 is deficient in its services and a defective product was given to the complainant and direct the OP1 to refund the complete amount of the AC i.e. 75 % Rs. 30,200/- with interest @6% p.a. from the date of filing of the complaint i.e.12.10.2017 and Rs. 10,000/- towards the harassment and mental agony caused to the complainant including the litigation cost. The order is to be complied with by OP1 within 30 days from the date of receiving the order, failing which the entire amount accrued till the 30^th day shall carry interest @9% p.a. from the date of order till its compliance. The complainant would return the defective AC to the OP1 against record at the time of recovery the payment by the complainant.
22. A copy of the order is given to the parties as per CPA rules, 2019 and thereafter the file is consigned to the record room after uploading the order on the website.
23. The complaint could not be decided within the statutory period due to the heavy pendency of the cases before the Commission and the time taken by the settlement proceeding between the parties.
24. The order contains 12 pages for each beer with our signature.
25. Pronounced on 31.05.2023.