Hon’ble Mrs. Dipa Sen (Maity), Presiding Member

The instant Appeal has been filed U/s. 15 of the Consumer Protection Act, 1986 is at the behest of the Opposite Party, M/s. Great Eastern Appliances Pvt. Ltd. to assail the final order/Judgment dated 17-05-2018 passed by Ld. District Forum South 24Pgs at Baruipur in connection with case No.CC/52/2017.  Whereby the Ld. District Consumer Forum has allowed the case on contest with a final order/judgment against the Opposite Party with cost of Rs.5000/-(Rupees Five thousand) only and directed to pay Rs.10,000/- (Rupees Ten thousand) only as compensation, with further directed to the present Appellant/ Opposite Party to install the A.C Machine to the house of the Respondent/Complainant within 15 days from the date of the said order and to pay of Rs.10,000/-(Rupees Ten thousand) only as compensation for harassment and mental agony caused to the Complainant by the Opposite Party failing which  Opposite Party shall have to refund the amount received by him from the Complainant i.e. of Rs.6,650/-(Rupees Six thousand six hundred & fifty) only  along with enhanced amount of compensation of Rs.20,000/-(Rupees Twenty thousand) only and litigation cost as referred to above with interest @ 10% per annum on the total amount i.e. Rs.31,650/-(Rupees Thirty one thousand six hundred & fifty) only from the date of default till realisation thereof.   

The Respondent herein being Complainant lodged the complaint case before the Ld. District Forum and thereby stated that on 09-03-2017 the Complainant/Respondent went to the show-room of the Appellant/ Opposite Party and agreed to purchase one Split A.C Machine of Whirlpool @ total price of Rs.36,800/-(Rupees Thirty six thousand eight hundred) only out of which the Respondent/Complainant has paid Rs.6,650/- (Rupees Six thousand six hundred & fifty) only in cash and agreed to pay the balance amount of Rs.30,150/-(Rupees Thirty thousand one hundred & fifty) only by ten EMI of Rs.3050/-(Rupees Three thousand & fifty) only each.  According to general norms the Appellant/ Opposite Party put signature in the prescribed form. The Appellant/ Opposite Party intimated the Respondent/Complainant for installation of the said A.C Machine by the men of Seller Company free of cost.  But the Appellant/ Opposite Party did not install the A.C Machine in terms of Agreement and therefore the Complainant has filed this complaint case alleging deficiency in service on the part of the Opposite Party praying for refund of the cost of A.C Machine paid by him and for compensation. 

The Appellant being the Opposite Party by filing a W/V has stated that the men of Opposite Party went to the house of the Complainant in 3rd week of March, 2017 to install the A.C Machine in the house of the Complainant.  But a difference of opinion cropped up between the Complainant and those men of the Opposite Party regarding installation and length of pipe of the A.C Machine, and therefore, those men came back from the house of the Complainant.

Thereafter, the Complainant did not turn up and did not pay instalment to the Opposite Party.  There is no deficiency of service on the part of the Opposite Party.  None of the Complainant or the Opposite Party filed any separate evidence on affidavit before the Ld. District Forum.  The petition of complaint was treated as evidence of the Complainant vide petition dated 21-11-2017. 

On evaluation of the materials on record the Ld. District Commission has allowed the case on contest against the present Appellant/Opposite Party, M/s. Great Eastern Appliances Pvt. Ltd. with certain directions as stated above.   Being aggrieved and dissatisfied with the said order the Opposite Party have come up in this Commission with the present Appeal. 

Ld. Counsel appearing for the Appellant has argued that the impugned order passed by the Ld. DCDRF , South 24 Pgs, Baruipur is misconceived erroneous and contrary to law and with material irregularity.  Ld. Forum has failed to appreciate the actual fact and circumstances of the case.  They did not commit any deficiency of service.  The Respondent/ Opposite Party has failed to provide suitable place for installation of A.C Machine in his house. The present Opposite Party has no latches in rendering service and has delivered the same to the house of the Respondent/Complainant within time.  There was no manufacturing defect of the A.C Machine and the manufacturer company Whirlpool has not made party to this case. The Complainant/Respondent being defaulter of payment and is not entitled to get any relief as the Respondent/Complainant did not pay and cleared the loan amount till that date. 

The Ld. Counsel for the Respondent/Complainant has argued that the Opposite Party did not install till date and the A.C Machine is still lying with him uninstalled.  The Opposite Party has deficiency in service Complainant has already made full payment through EMIs.

Heard the parties at length.

Perused the materials on record.

Having heard both parties and on perusal of record it became clear to us that the Complainant/Respondent has paid Rs.6,650/- (Rupees Six thousand six hundred & fifty) to the Appellant as part payment of the total consideration of Rs.36,800/-(Rupees Thirty Six thousand eight hundred) only and agreed to make payment through EMI of Rs.3050/- (Rupees Three thousand & fifty)only each.  The Opposite Party Great Eastern Appliances Pv.t Ltd. has delivered the said Split A.C.Machine to the Complainant’s house and send their persons to install the said A.C Machine in the house of the Complainant/Respondent.  After that one dispute cropped up between the Opposite Party’s men and the Complainant/Respondent regarding place of installation, charges for pipes, misbehaviour etc. It also clearly appears from the arguments and from perusal of material on record that at that time full consideration amount of the said machine was not paid.  The Ld. Counsel of the Appellant has categorically argued that the Complainant/Respondent has not made party to the manufacturer Whirlpool Company and the case is suffering from mis-joinder/non-joinder of necessary party and there is no allegation on the ground of manufacturing defect and the Appellant/ Opposite Party has no deficiency in service as seller of the said machine.

We are of considered view that the Ld. District Forum has rightly hold that non installation of the machine in the house of the Complainant by the Opposite Party/Appellant is a deficiency in service and Ld. District Forum was quite justified in passing the order directing the Opposite Party/Appellant to install the A.C Machine in the house of the Complainant/Respondent. It is also very true that the said Split A.C Machine was purchased through EMI and the manufacturer Whirlpool has not been made a party and at that time the full consideration of amount was not paid. Moreover, the Respondent/Complainant has paid only Rs.6,650/-(Rupees Six thousand six hundred & fifty) only and was a defaulter.  It is also very true that the Opposite Party M/s. Great Eastern Appliances Pvt. Ltd delivered the A.C Machine to the house of the Complainant/Respondent and sent their men for installation of the same.  However, the said machine was not installed due to some dispute arised between the parties and as a result the same could not be installed and still and till date remain uninstalled for years which may create some disturbances in that particular A.C Machine.  The Complainant/Respondent kept the said A.C Machine in his custody till date and did not able to produce any evidence that the Opposite Party has demanded any amount/money for installation purpose.  Within expiry of this period of time some defect may be arisen in that particular A.C Machine.  

However, considering the facts and circumstances of the present case the Appeal is allowed in part with some modification in operative part of the impugned order. 

The Opposite is hereby directed to install the A.C Machine as it is in the house of the Complainant without taking any charges within 30 days from the date of communication of this order, failing which the Opposite Party/Appellant will have to refund the total amount received by him from the Complainant within 30 days i.d. the Opposite Party/Appellant will have to pay interest @ 9% p.a. from the date of actual payment till its realisation. 

The Opposite Party/Appellant is further directed to pay Rs.5000/-(Rupees Five thousand) only as compensation.

Considering the facts and circumstances of the case Appeal is partly allowed with above mentioned modification.

Let a copy of this Judgment and Order be supplied to both the contesting parties free of cost.

Interim order, if any, be vacated at once.

With the above observation the Appeal stands disposed of.

Note accordingly.