Sri Shyamal Gupta, Member

Both the Appeals bearing Nos. A/592/2017 and A/1028/2017 relates to the Order dated 25-04-2017, passed by the Ld. District Forum, Kolkata-II (Central) in Complaint Case No. 476 of 2016.  The facts and circumstances of both these Appeals being same and identical, the same are disposed of through this common order.

The dispute centres around an Air Conditioning Machine that is allegedly not functioning properly since its installation.

Parties were heard through their respective Ld. Advocates and documents on record gone through.

It appears that the disputed Machine was purchased by the Complainant on 30-03-2016. 

Allegedly, the machine is not working properly from the very beginning and despite attempts being made by the service engineer of the OP Nos. 1 and 4, the problem still persists. 

Counter case of the OP No. 1 is that during inspection, it was detected that there was gas leakage which occurred due to faulty installation of the same done by the OP No. 4, who was not authorized to carry out the job. Further case of the OP No. 1 is that, by installing the machine through unauthorized person, the Complainant breached warranty condition and therefore, he deserved no relief.

We have given our thoughtful consideration to the aforesaid averment of the OP No. 1.

It appears that, as a sales promotional offer the OP No. 3 offered free installation of the AC Machine to the Complainant.  Accordingly, the OP No. 4 installed the AC machine free of cost. 

Being the dealer, it was incumbent on the part of the OP No. 3 to install the AC machine through the authorized personnel of the OP No. 1.  As a layman, it was virtually next to impossible for the Complainant to figure out whether the OP No. 4 was duly authorized by the OP No. 1 to carry out installation work or not. Thus, if someone was indeed at fault, it was the OP No. 3 and none else.

The OP No. 1 though disowned the OP No. 3 as its authorized dealer, while the latter deals with the product of the OP No. 1 for years together in broad daylight and never before the OP No. 1 raised objection to such dealings, in our considered opinion, the OP No. 1 cannot avoid vicarious liability even if it is accepted that by outsourcing the installation work to an unauthorized company, viz., the OP No. 4, the OP No. 3 breached warranty condition. If it feels so, the OP No. 1 shall be at liberty to prosecute the OP No. 3 before the appropriate Court of Law.

Further, it appears that the OP No. 1 accorded warranty service to the Complainant on 12-04-2016. Therefore, there was no valid reason for the OP No. 1 to back out from doing so subsequently.  Though the OP No. 1 attributed it to goodwill gesture, such flip flop is highly deplorable.

Fact of the matter remains that the OP No. 1 failed to cure the defect of the AC machine.  As the Complainant was in no way responsible for the present impasse, the OP No. 1 has to take due responsibility to replace the defective AC machine and install it at site free of cost.

It appears that the OP No. 1 called in question the admissibility of the case on the ground that the disputed AC machine was installed at the business place of the Complainant together with another AC machine.  It is, however, not understood how this could stand in the way of initiation of complaint case.  Even if it is accepted that the Complainant runes his pharmacy and mobile business where the AC machine has been installed, let us appreciate that, it was not purchased for re-sale purpose and installation of an AC machine has got no direct nexus with the profit orientation motive of a business.  In our considered opinion, therefore, the complaint case was rightly adjudicated by the Ld. District Forum. 

It is also argued by the OP No. 1 that due to frequent opening of the door of the shop, the AC machine was not giving proper cooling effect.  However, this happens in respect of all commercial shops.  However, never before this, we came across such uncanny reasoning on the part of any AC manufacturer.  While admittedly, the problem cropped up in view of leakage of gas from the AC machine due to faulty installation of the same, we are not inclined to buy such unsubstantiated reasoning mooted by the Ld. Advocate for the OP No. 1.

There is no denying the fact that the Complainant suffered a lot due to improper functioning of the AC machine.  However, that could not be a valid reason for him to withhold payment of EMIs to the OP No. 5 who was in no way responsible for the sufferings of the Complainant.  Taking strong object to such illegal act of the Complainant, we refuse to entertain his prayer for compensation.

Overall, the impugned order appears to be fully in order and as such, the same does not warrant our intervention in any manner whatsoever.

Accordingly, we dismiss both these Appeals.  Parties do bear their respective costs.

Let the original copy of this order be kept in the case record of A/592/2017 and a photocopy thereof in A/1028/2017.