CARRIER AIRCON LTD. vs TAMILNADU RURAL URBAN CONSUMER PROTECTION COUNCIL

THIS appeal is directed against the order dated 9.9.1998 in O.P. No. 58/1997 on the file of the District Consumer Disputes Redressal Forum, Villuppuram.

THE appellants are the opposite parties 2 and 3. Respondent No. 1 is Tamilnadu Rural Urban Consumer Protection Council while the 2nd respondent is the complainant. THE 3rd respondent is the 1st opposite party. Short facts may be related in order to understand the crux of the issue arising for consideration in this action.

The 1st opposite party is one Bell & Company, Air-conditioning and Refrigeration Engineer having their place of business at 61, Tennur High Road, Trichy. The 2nd opposite party is Carrier Aircon Limited having their office at No. 88, Mariamman Koil Street, Reddiarpalayam, Pondicherry - 605 010. The 3rd opposite party is the Manager, Carrier Aircon Limited, 57B, Kodambakkam High Road, T. Nagar, Chennai.

CARRIER Aircon Limited apart from having their office at Madras is also having an office at Pondicherry. The 1st opposite party is the dealer of CARRIER Aircon Ltd., located at Trichy. The 2nd respondent/complainant one R. Perumal, Proprietor of Sri Rajarajeswari Transport residing at Durgam Road, Kallakurichi, purchased a 2 ton carrier air-conditioner from the 1st opposite party dealer for Rs. 34,750/- on 22.4.1997. The purchase of the air-conditioner was for the installation of the same in his residence at Kallakurichi. The price of the air-conditioner was paid by means of a cheque on the date of the purchase itself. The air-conditioner so purchased was not immediately installed in the house of the complainant. It is only after a delay of two months, the same had been installed in his house. The air-conditioner so installed, it is said, within an hour of its installation, ceased to function. Subsequently it was reported to the dealer about the non-functioning of the air-conditioner. The air-conditioner so installed was not at all functioning well and it was always under repair. Even the A/c mechanic deputed by the dealer on its inspection found that the compressor as well as the condensing coil in the air-conditioner were damaged and both of them required to be replaced. The mechanic had stated these aspects of the matter in the service report. The complainant having purchased a new air-conditioner was not amenable for the replacement of the compressor and the condenser and he wanted the same air-conditioner to be replaced by a new air-conditioner free from any defect. More than an year elapsed. The Carrier Aircon Ltd., of course addressed a letter to the complainant agreeing to replace the carrier air-conditioner by a new air-conditioner free from defect as a special case. But, none the less, the air-conditioner was not replaced and more than one year elapsed in the meantime.

THE complainant suffered all sorts of mental agony and anguish all along this one year without an air-conditioner although he had parted with a huge sum of money of Rs. 34,750/- an year before for the purchase of an air-conditioner from the 1st opposite party dealer. In such a backdrop and setting, the 2nd complainant knocked at the doors of the Forum below with the aid and assistance rendered by the 1st respondent/complainant alleging deficiency in service on the part of the opposite parties and for certain reliefs as prayed for in the complaint. The 1st opposite party in pith and substance would contend that the Forum below has no jurisdiction at all to entertain the complaint and as such the complaint is liable to be dismissed purely on the question of jurisdiction. The 2nd and 3rd opposite parties would contend that the air-conditioner had not at all been purchased directly from them and as such there is no privity of contract between them and the 2nd complainant and such being the case, it goes without saying that the complaint is liable to be dismissed. They would also state that in any event the compensation so awarded by the Forum below is excessive calling for interference.

THE Forum below after taking into consideration the materials placed on record, allowed the complaint by directing the opposite parties to replace the air-conditioner sold to the complainant by a new air-conditioner free from any defect and also to pay to the complainant Rs. 5,000/- by way of compensation for the mental agony and anguish suffered besides the payment of cost of Rs. 500/-.

WHILE allowing the complaint, the Forum below of course recorded a finding that there was deficiency in service on the part of the opposite parties. The Forum below however did not frame any question as respects the jurisdictional issue raised by the 1st opposite party and consequently did not render any finding therefor. Aggrieved by the order as above, the 2nd and 3rd opposite parties resorted to the present action by engaging a Counsel of their choice, namely learned Counsel Mr. S.K. Rakhunathan and Mr. S. Natarajan.

On service of process, the 1st respondent/1st complainant and 3rd respondent/1st opposite party were remained absent and the 2nd respondent/2nd complainant alone entered appearance through a Counsel of his choice, namely learned Counsel Mr. A.G. Rajan and Mr. S. Deivaneethi.

WE heard the arguments of learned Counsel Mr. K. Swaminathan representing learned Counsel M/s. S.K. Rakhunathan & S. Natarajan appearing for the appellants/opposite parties 2 and 3 and learned Counsel Mr. S. Deivaneethi appearing for the 2nd respondent/2nd complainant. Learned Counsel Mr. K. Swaminathan representing learned Counsel appearing for the appellants would reiterate the contentions as had been raised in the version filed by the opposite parties before the Forum below. What he would contend is that the Forum below committed a grave error in not considering the question on the jurisdictional issue as raised and recorded a finding thereon. In elaboration, what he would state is that if such an issue had been considered, the Forum below would have definitely dismissed the complaint on the ground that the Forum below has no jurisdiction at all to entertain the complaint. He would further contend that in view of the fact the 2nd respondent/2nd complainant had not purchased the air-conditioner in question directly from the complainants/opposite parties 2 and 3, there is no privity of contract between the 2nd respondent/complainant and the appellants/opposite parties 2 and 3 and, therefore, it is the order of the Forum below in allowing the complaint cannot at all be stated to be sustainable in law.

LEARNED Counsel Mr. S. Deivaneethi appearing for the 2nd respondent/complainant would however strike a discordant note. We shall first enter into the arena of discussion as relatable to the question of jurisdiction as raised by learned Counsel appearing for the appellants/opposite parties 2 and 3. There is no pale of controversy that the 1st opposite party is the dealer of Carrier Aircon Limited which is having their office at Pondicherry as well as at Chennai represented respectively by opposite parties 2 and 3. Of course true it is that the 2nd respondent/complainant purchased a new carrier air-conditioner from the 1st opposite party dealer at Trichy for the purpose of installation of the air-conditioner in his house at Kallakurichi.

THE question of jurisdiction of the District Forum, both territorial and pecuniary is dealt with by Section 11 of the Consumer Protection Act, 1986 (for short, "the Act"). Sub-section (1) of Section 11 deals with the pecuniary jurisdiction of the District Forum while Sub-section (2) is relatable to its territorial jurisdiction. Sub-section (2) thereto consists of three parts as (a), (b) and (c). We are concerned not with parts (a) and (b). We are concerned with part (c) of Sub-section (2) of Section 11. According to the said part, a complaint shall be instituted in a District Forum within the local limits of whose jurisdiction the cause of action, wholly or in part arises. As already indicated, the air-conditioner had been purchased at Trichy and the payment of the cost price had been effected only at Trichy. Though the air-conditioner had been purchased at Trichy by the complainant, yet, the sordid fact is that the air-conditioner so purchased is required to be installed in his house at Kallakurichi. Such being the case, the cause of action arose both at Trichy as well as at Kallakurichi. Kallakurichi being within the jurisdiction of the District Consumer Disputes Redressal Forum, Villuppuram, it cannot at all be stated that the complaint as instituted by the 2nd respondent/complainant before the District Forum at Villuppuram is without jurisdiction. THE fact that such a question had not been considered by the Forum below is of no consequence on the facts and in the circumstances of the case.

AS regards the other question relatable to the privity of contract as raised by learned Counsel appearing for the appellants/opposite parties 2 and 3, the advocate fact is that the opposite parties 2 and 3 are the manufacturers of carrier air-conditioners while the 2nd opposite party is the dealer/agent. It is an axiomatic truth that the manufacturer of any products are not usually selling their products by themselves although in certain rarity of rare cases the manufacturers also sell their products along with the dealers/agents. In the case on hand, as already referred to, the 1st opposite party being admittedly a dealer under the opposite parties in respect of the sale of carrier air-conditioners, it goes without saying that any act done by the 1st opposite party as a dealer/agent of the 2nd and 3rd opposite party manufacturers, the same will bind the manufacturers/opposite parties 2 and 3 on the Sanguine Principles of Law of Agency that the act of the agent must be construed to be the act of the principal. Such being the case, to say as has been said by learned Counsel appearing for the opposite parties 2 and 3 that there is no privity of contract between the appellants/opposite parties 2 and 3 and the 2nd respondent/complainant cannot at all be expected to commend acceptance at our hands. So, we reject such an argument out-and-out. As respects the award of compensation, we are of the view that the order of the Forum below cannot at all be stated to be not sustainable in law. The Forum below after all awarded compensation quantified in a sum of Rs. 5,000/- for the agony and anguish suffered by the complainant for a period of one year without having the benefits of having an air-conditioner notwithstanding the fact that he had parted with a huge sum of money of Rs. 34,750/-. Such an amount cannot at all be stated to be unreasonable calling for interference.

No argument has been made as respects the award of costs. We however feel that the cost awarded in a sum of Rs. 500/- is something reasonable calling for no interference.

COMING to the cost of this appeal, we feel that the appellants/opposite parties 2 and 3 must be mulcted with heavy cost on the facts and in the circumstances of the case. The opposite parties 2 and 3 effected the sale of their air-conditioner through their dealer/agent 1st opposite party to the complainant. Admittedly, in the air-conditioner so sold, the compressor and the condenser were not at all functioning and the same required to be replaced as per the Field Service Report marked as Ex. B4. In an air-conditioner, the compressor is the main thing. In a new air-conditioner, the compressor is not working. Such thing cannot at all be tolerated. It is not as if the complainant purchased an assembled air-conditioner. The plain fact is that he purchased a brand new company assembled air-conditioner. Such an air-conditioner suffered from a vital defect of a compressor not having been functioning right from the date of its purchase. Added to this, the condenser was also not functioning. It is because of all these defects, the opposite parties agreed to replace the sold out air-conditioner to the complainant through their dealer 1st opposite party by a brand new air-conditioner free from defect and to that effect they sent a communication to the complainant under Ex. B5. This sort of a communication, we rather feel, had been sent in rather a bid to save their reputation in the business world. Otherwise, it is likely to affect their sales. Having said so, not only the opposite parties not replaced the sold out air-conditioner to the complainant by a new air-conditioner free from defect but also came forward with an appeal dragging the matter for quite long. Admittedly, the complaint has been instituted in the year 1997 and it had been disposed of by an order dated 9.9.1998. Without complying with the order, the appellants/opposite parties 2 and 3 of course armed with the purse of a sword dragged a hapless complainant before this Commission by way of filing an appeal and as such the matter was allowed to be kept hanging at a democle''s sword over the head of the complainant till upto now for a period of four years. We are of the view that such high-handed act of the appellants/opposite parties 2 and 3 deserves to be mulcted with heavy cost and in that view of the matter, we direct the appellants/opposite parties 2 and 3 to pay to the 2nd complainant a sum of Rs. 10,000/- by way of costs of this appeal. As such, the appeal deserves to be dismissed. In fine, the appeal fails and the same is dismissed with cost of Rs. 10,000/-. The order of ours as above is required to be complied with by the opposite parties within a period of one month from the date of receipt of our order or otherwise the 2nd respondent/2nd complainant would be perfectly at liberty to invoke the provisions under Section 27 of the Act. Appeal dismissed.