Date of Hearing: 7th Day of September, 2015
Date of Judgment: Friday, the 11th Day of September, 2015
JUDGMENT
The instant appeal u/s. 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the ‘Act’) is at the behest of Opposite Party No.1 against the Complainant and Opposite Party Nos.2&3 to impeach the Judgment/Final Order dated 26.08.2013 passed by the Ld. District Consumer Disputes Redressal Commission, South 24 Parganas at Alipore (In short, DCDRF) in Consumer Complaint No.44/2013.
The Respondent No.1 herein being Complainant initiated the Consumer Complaint u/s. 12 of the Act alleging that on 05.06.2012 he purchased one ton split A.C. Machine being Make – Carrier at a price of Rs.27,400/- from Opposite Party No.3 and the said machine was installed on 10.06.2012 and after purchase it was noticed that the said machine was a defective one. After correspondence, inspection was done on 14.08.2012 and also on 18.09.2012 by the technicians but the machine could not be made in order. Complainant issued notice through her Ld. Advocate on 07.11.2012 but it went in vain. Accordingly, the complaint was filed for deficiency of service on the part of the Opposite Parties with the prayers, viz. – a) an order directing the Opposite Party to replace the A.C. Machine or alternatively for direction to return entire price; b) cost of proceeding; c) compensation of Rs.50,000/- for causing mental harassment and agony etc.
The Opposite Party Nos.1&2 in their Written Version disputed the claim and stated that as per terms and conditions of warranty the A.C. Machine could not be replaced and they deputed the technician for inspection and to give suggestion for replacement of spare parts but the Complainant did not agree.
The Opposite Party No.3 by filing a separate Written Version has contended that he is a dealer and after sale he has no liability and if the replacement is at all required that can be done by the Opposite Party No.1.
Having heard the Ld. Advocate for the Parties and on going through the evidence on record the Ld. DCDRF allowed the complaint with costs of Rs.5, 000/- with a direction upon the Opposite Parties to refund the purchase value of the A.C. Machine within 15 days, and a sum of Rs.5,000/- as compensation and also a penalty of Rs.1,00,000/- which prompted the Opposite Party No.1 to prefer this appeal.
The point arises for consideration in this appeal as to whether or not the Ld. DCDRF was justified in passing the order impugned.
On close scrutiny of the materials on record it emerges that on 05.06.2012 the Complainant purchased one ton split A.C. Machine being Make – Carrier, Model ‘Durakool Star’ at a consideration amount of Rs.27,400/- only from Opposite Party No.3. The said machine was installed on 10.06.2012. Be it mentioned here that the Opposite Party No.3 is authorised dealer of the product in question while the Opposite Party No.1 is the Manager of the Maker/Product and Opposite Party No.2 is a authorised Service Dealer of the product in question. It also emerges that soon after purchase it was found that the said machine was a defective one and started giving trouble. On 14.08.2012 an inspection was made by the technicians of the Opposite Party No.2 to investigate the problem in the said machine but after thorough checking they could not identify the defects and went back with the remark ‘machine requires further check up.’ Again on 18.09.2012 technician from the Opposite Party No.2 came to the residence of the Complainant and examine the said machine. In their report the technician has observed that the remote kit, display board assembly, temperature sensor and coil sensor are defective. Thereafter, the Petitioner wrote a letter to Opposite Party No.1 on 22.09.2012 for relacing the said machine with a new one. But, it yielded no result. Thereafter, on 07.11.2012 the Complainant through her Advocate issued a notice upon the Opposite Party No.1 clearly mentioning that the machine is defective one and is started giving trouble right from the beginning and as such, she requested to replace the defective equipments. Subsequently, on 11.12.2012 the Opposite Party No2 sent technician to identify the defects but the Complainant did not allow and refused to put her signature.
The materials on record clearly indicate that the machine purchased by the Complainant was a defective one from the very beginning. Due to scorching heat in summer season the Complainant purchased it on 05.06.2012 but since then she had to face constant trouble on account of several defects in the machine, otherwise the Complainant being woman would not have run from pillar to post for redressal of her pain. As her grievances were not mitigated she had to send a legal notice to Opposite Party No.1 through her Advocate.
In their reply all the three Opposite Parties before the Ld. DCDRF has submitted that they are liable only to repair the Subject Unit of the Complainant and not to replace the same unless the same suffers from manufacturing defect. What we find in the report of the technicians of Opposite Party No.2 that there were several defects in the machine and in spite of visit of two occasions by the technician the same could not be removed. If we have a look to the Inspection Report dated 18.09.2012 it would reveal that there were defects in Remote Kit, Display Board Assembly, Temperature Sensor and Coil Sensor. Even assuming that an attempt was made on behalf of the Opposite Party No.2 to remove such defects on 11.12.2012 but still it lacks proper initiative in as much as inspection report does not show that the technician went to the house of the Complainant with spare parts for removing the defects like temperature sensor and coil sensor..
It is unfortunate to note that when a customer after payment of entire consideration amount is not getting proper service to remove the defects of the goods or subject there was certainly deficiency of service on the part of the Opposite Parties. The Opposite Parties should have addressed the grievances of the Complainant but without doing so they have raised technical question of manufacturing defect. Such a plea does not appear to us acceptable in as much as the Complainant being customer is entitled to get better protection under the Act. and if the same is not done the object behind the legislation would be frustrated.
Therefore, the Ld. DCDRF was quite justified in holding that the Complainant is entitled to get relief with regard to refund of the purchase value of A.C. machine of Rs.27,400/- plus Rs.5,000/- as litigation cost plus Rs.5,00/- as compensation aggregating Rs.37,400/-. However, the imposition of penalty of Rs.1,00,000/- does not appear to us substantial because the record does not show that there was any unfair trade practice on the part of the Opposite Parties. In fact, the defect of the machine was also unknown to the Opposite Parties at the time of selling. But when the defect was noticed the Opposite Party did not take any proper steps to remove the defects and as such, there was deficiency in service on the part of the Opposite Party but by any stretch of imagination there is no scope to impose penalty upon the Opposite Parties.
In view of the above, the appeal is allowed on contest against Respondent No.1 and ex-parte against Respondent Nos.2&3 in part but without cost.
The impugned Judgment/Final Order is modified to the extent that the Opposite Parties shall make payment of Rs.37,400/- as awarded by the Ld. DCDRF which must be paid within 30 days from date, failing which the amount shall carry an interest at the rate of 10% from the date of Judgment/Final Order passed by the Ld. District Consumer Disputes Redressal Forum, Sout 24 Parganas at Alipore i.e. from 26.08.2013 to till realisation.
The Judgment/Final Order dated 26th August, 2013 passed by the Ld. District Consumer Disputes Redressal Forum, South 24 Parganas at Alipore in consumer complaint No.44/2013 is modified to the extent indicated above.
