DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BATHINDA

CC.No.222 of 01-08-2017

Decided on 03-05-2018

Pritam Singh aged about 70 years S/o Sajjan Singh R/o Village Jassi Pau Wali, Distt. Bathinda.

........Complainant

Versus

1.Symphony Limited, Symphony House, FP12, TP 50, Bodakhu, Off 5G Highway, Ahmedabad, Gujrat-380054, through its Prop./Manager/M.D./Partner/Incharge.

2.Pal Sales Near Hero Honda Agency, Opp. Dr.Narang Children Hospital Near Hotel Imperial, Bibiwala Rado, Bathinda, through its Prop./Manager/Partner/Incharge.

.......Opposite parties

Complaint under Section 12 of the Consumer Protection Act, 1986

QUORUM

Sh.M.P Singh Pahwa, President.

Sh.Jarnail Singh, Member.

Smt.Sukhwinder Kaur Member

Present:-

For the complainant: Sh.Kanwar Ajay Singh, Advocate.

For opposite party No.1: Sh.Nitesh Sharma, A.R.

For opposite party No.2: Sh.Amandeep Pal, Proprietor.

ORDER

M.P Singh Pahwa, President

1. The complainant Pritam Singh (here-in-after referred to as complainant) has filed complaint U/s 12 of Consumer Protection Act, 1986 against opposite parties Symphony Limited and Other (here-in-after referred to as opposite parties).

2. Briefly stated, the case of the complainant is that opposite party No.1 is manufacturer of the Symphony air cooler. Opposite party No.2 is the dealer/distributor of opposite party No.1 and it sells the Symphony air cooler and other electronic items of opposite party No.1. The complainant purchased one air cooler touch 80 for Rs.13,192/- vide invoice No.2550 dated 5.4.2017 from opposite party No.2 on 5.4.2017 with sufficient warranty.

3. It is alleged that after sometime from the date of purchase, the air cooler was not giving proper cooling. The complainant made complaint with opposite party No.2. The employee of opposite parties came to the house and checked the air cooler on 9.5.2017. It was found that there was no cooling in the cooler. There is manufacturing defect in the air cooler. The complainant many times approached opposite party No.2 and requested it either to replace the air cooler or refund its amount, but to no effect. The cooler is lying in the house of complainant. The very purpose for which the complainant had purchased the cooler in the summer has been defeated due to manufacturing defect in the cooler. He got issued notice dated 25.5.2017 through his counsel. Opposite party No.1 gave reply on wrong facts and also issued photocopy of job sheet issued by S.K. Enterprises, authorized service centre of opposite party No.1 to the complainant.

4. It is further alleged that due to this act of opposite parties, the complainant has suffered from great mental tension, agony, botheration harassment and financial loss. He has lost his reputation in the eyes of his family relatives and friends. He has claimed refund of price of air cooler i.e. Rs.13,192/- and Rs.50,000/- as compensation for great mental tension, agony and botheration etc. and Rs.11,000/- as cost of litigation. Hence, this complaint.

5. Upon notice, opposite party No.1 appeared through its Authorized Representative whereas opposite party No.2 appeared in person and contested the complaint by filing their separate written version. In the written version, opposite party No.1 has pleaded that the allegations made in the complaint are incorrect It is in the business of trading, marketing and selling of air coolers and other consumer appliances under the brand name of 'Symphony' since the year 1988. It is a pioneer in branded air coolers in India. Its products mainly air coolers are certified to meet international quality standards of UL, CE, SASO, ETL, NOM, SONCAP and KUCAS.

6. It is further pleaded that opposite party No.1 is selling its world class products under warranty only. The product is installed and used as per terms and conditions stated in the warranty card and user manual. The validity of warranty is one year subject to Ahmedabad Jurisdiction. It is admitted that on 5.4.2017, the complainant purchased the air cooler.

7. It is further mentioned that after few weeks of installation, the complainant found that the air cooler is not working properly. He informed opposite party No.1. Subsequently, technical person of opposite party No.1 visited and provided services as per valid warranty. The technical person explained and advised the operating system in utmost good faith to the complainant. The complainant has denied to endorse on the call slip as a gesture of availing such services. Subsequently, he arranged to issue the legal notice and same was replied by opposite party No.1. Despite all such efforts by opposite party No.1, complaint is filed and same is nothing, but either pressure tactics or to defame the reputation and goodwill of opposite party No.1.

8. It is also pleaded that opposite party No.1 as a gesture of goodwill is offering and prepared to arrange visit by technical person to the place of the complainant and ready to provide expert advice to rectify the problem, if possible. The allegations of the defect or deficiency or negligence in the supplied product are misconceived, groundless, false and untenable in law. In the end, opposite party No.1 has prayed for dismissal of complaint.

9. In the written version, opposite party No.2 has raised the legal objections that the complaint is not maintainable against it. It is bad for non-joinder of necessary party. The complainant has no locus-standi or cause-of-action to file the complaint against opposite party No.2. Opposite party No.2 has been unnecessarily dragged in the false litigation. The complaint is liable to be dismissed.

10. On merits, it is admitted that opposite party No.2 is the authorized dealer of opposite party No.1. The guarantee/warranty, if any, was given by opposite party No.1. The complainant approached opposite party No.2, it was made clear to him that as opposite party No.2 is the seller only, it cannot replace the air cooler.

11. It is asserted that there is no fault on the part of opposite party No.2 and there is no deficiency in service on its part. All other averments of the complainant are denied. In the end, opposite party No.2 has prayed for dismissal of complaint.

12. Parties were asked to produce the evidence.

13. In support of his claim, the complainant has tendered into evidence his affidavit dated 21.12.2017, (Ex.C1); photocopy of bill, (Ex.C2); photocopy of job sheet, (Ex.C3); photocopy of legal notice, (Ex.C4); postal receipt, (Ex.C5) and closed the evidence.

14. To rebut the claim of the complainant, opposite party Nos.1 and 2 have tendered into evidence affidavit of Nitesh Sharma dated 19.3.2018, (Ex.OP1/1) and closed the evidence.

15. We have heard learned counsel for parties and gone through the file carefully.

16. Learned counsel for complainant has submitted that it is not disputed that the complainant purchased the air cooler, manufactured by opposite party No.1 on 5.4.2017. He has also produced on record copy of job sheet, (Ex.C3), which proves that the complaint was lodged with the service centre of opposite party No.1 on 9.5.2017 i.e. within about one month from the date of purchase. Opposite party No.1 has taken the plea that the air cooler is perfectly working and complainant was explained the operating system. The main objection of opposite party No.1 was that there is no ventilation, but in the job sheet itself, the complainant has himself given remarks regarding proper ventilation, room is with doors, windows, proper ventilation, but air cooler is not giving cooling. This fact shows that he was not satisfied with the services provided by opposite parties. It proves that opposite parties failed to rectify the defect. This can be only due to some manufacturing defect. The deficiency in service on the part of opposite parties stands proved. Therefore, the complaint be accepted as prayed form.

17. On the other hand, opposite parties have submitted that the complainant has firstly to allege some specific defects and then to prove the same by way of evidence. In the complaint, only allegation of the complainant is that the air cooler is not giving proper cooling. It is not his case that the air cooler is not working properly. The factum of air cooler depends upon various factors, which included size of room and ventilation etc. Of-course, the complainant made complaint regarding 'no cooling' and action taken was only visit and no defect was found in the cooler. The complainant has not produced any expert evidence to prove any defect. In these circumstances, his averment cannot be held proved.

18. We have given careful consideration to these rival submissions.

19. Admitted facts are that the complainant purchased the air cooler from opposite party No.2 on 5.4.2017. His averment is that the air cooler is not giving proper cooling. He has not revealed any other defect in any part of the air cooler or regarding its working. He was required to prove his case by affirmative evidence.

20. It is to be seen that whether the complainant is able to prove his case from his evidence. Ex.C1, is affidavit of the complainant, which is repetition of averments. Ex.C2, is invoice, which can only prove purchase of air cooler. Ex.C4, is legal notice and Ex.C5, is postal receipt. These documents will also not prove the allegations of the complainant. The main evidence from his point view is job sheet, (Ex.C3). Of-course, this complaint was lodged by Tejinder Singh Dhillon, but opposite party No.1 has not disputed that this complaint is regarding air cooler in question. As per job sheet, reported defect was 'not cooling' and action taken is only visit. It is not case of the complainant that the air cooler is not properly working. He has also not produced any other evidence to prove any defect in the air cooler or any of its part. Moreover it is not his case that the air cooler is not working. In these circumstances, the conclusion is that he has failed to prove any defect in the air cooler.

21. For the reasons recorded above, the complaint is hereby dismissed without any order as to cost.

22. The complaint could not be decided within the statutory period due to heavy pendency of cases.

23. A copy of this order be sent to the parties concerned free of cost and file be consigned to the record room.

    Announced:-

    03-05-2018 (M.P Singh Pahwa)

    President

    (Jarnail Singh) (Sukhwinder Kaur)

    Member Member