Date of filing:-18/07/2017
Date of Order:-31/01/2018
DISTRICT CONSUMER DISPUTE REDRESSAL FORUM (COURT),
B A R G A R H.
Consumer Complaint No. 31 of 2017.
Bijaya Kumar Agrawala, aged about 60(sixty) years, Occupation- Cultivation, R/o Sialkhandatha Ps./Thasil. Bheden, Dist. Bargarh, at present residing at Master Colony, Kainsir Road, Sambalpur, Po/Ps/Dist. Sambalpur. ..... ..... ..... ..... Complainant.
-: V e r s u s :-
The Manager, L.G. Electronics Pvt (Care), Plot No. 51, Surajpur,m Kasna Road, Greater, NOIDA-2013210,(Udyog Vihar).
The Manager, L.G. Electronics Pvt (Care), Plot No.2. Ist Floor Bapujinagar, Bhubaneswar, Odisha Pin-751009.
The Proprietor, M.S. Electronics, Near L.I.C.Office, Bhdharaja, Sambalpur, Po/Ps/Tahasil/Dist. Sambalpur, Pin-768004.
The Proprietor, Ashok Electricals, Bargarh, At- In front of Purohit Hospital, Old N.H.6(six) Bargarh, Po/Ps/Tahssil/Dist. Bargarh, Pin-768028.
..... ..... ..... ..... Opposite Parties.
Counsel for the Parties:-
For the Complainant :- Sri M.K. Satpathy, Advocate with others Advocates.
For the Opposite Party No.1(one), :- Sri S.K.Mohanty, Advocate with others Advocates.
No.2(two) and No.3(Three).
For the Opposite Party No.4(four):- Ex-Parte.
-: P R E S E N T :-
Sri Krishna Prasad Mishra ..... ..... ..... ..... ..... P r e s i d e n t.
Ajanta Subhadarsinee ..... ..... ..... ..... ..... M e m b e r (W).
Dt.31/01/2018. -: J U D G E M E N T:-
Presented by Ajanta Subhadarsinee, Member(w):-
The Complainant has filed this case U/s 12 of Consumer Protection Act-1986, against the Opposite Parties alleging deficiency in service and adopting unfair trade practice.
The brief fact of the case is that, the Complainant has purchased a LG, LED 321B 5650 brand Television from the local dealer i.e. Opposite Party No.4(four) on Dt.29/10/2014 bearing serial No, 407 PL NB 198455 on payment of Rs.30,500/-(Rupees thirty thousand five hundred)only with due receipt for his domestic use. But on Dt.20/06/2017 the same Television stop operating and no picture showed in the screen. Then the Complainant approached before the Opposite Party No.4(four) and raised his grievance on the next day. One of the service man of the Company came to the house of the Complainant and done some repair, but he could not made operate. And as per the direction of Opposite Party No.4(four), the Complainant has deposited the Television before the Opposite Party No.3(three), as he is the authorized service provider of the Company, on Dt.25/06/2017. Even after repeated request of the the Complainant, the Opposite Parties were deferring to solve the problem of the Television till Dt.07/07/2017, for which the Complainant has been suffering a lot in every count and corner of his day-to-day life being now a days Television a part of entertainment and education etc. Such act and conduct of the Opposite Parties towards the Complainant amounting to unfair trade practice and deficiency in consumer service. Again as per the complainant Television was well within the warranty period.
Finding no way out the Complainant has served pleader notice on Dt.07/07/2017 on the Opposite Parties calling upon them to solve the problem of the Television and to compensate him for his suffering. But the Opposite Parties remained silent after receiving the notice till filing of this case, without providing any service to the Complainant. Thus the Opposite Parties are liable to compensate the Complainant for his suffering from all count, which he assessed to a sum of Rs.25,000/-(Rupees twenty five thousand)only including litigation expenses. As per the complaint, the Opposite Parties are also liable to furnish a new Television as the same has got some inherent defect.
The Complainant has relied upon the following documents (xerox copies) to establish his case.
Money receipt vide Sl. No. 5367 Dt.29/10/2014 issued in favour of the Complainant.
Job Sheet Dt.25/06/2017 issued by the L.G. Electronics India Pvt. Ltd to the Complainant.
Happy living plan vide HPL No. OB009415 valid from 29/10/2016 to Dt.28/10/2019 with an payment of Rs.3,804/-(Rupees three thousand eight hundred four)only.
Extended warranty Card vide No. FPD14 884604 issued in the name of the Complainant by the company.
The office copy of Pleader Notice to the Opposite Parties Dt.07/07/2017.
Original Postal receipts Dt.07/07/2017.
The Complainant has filed memo of argument narrating his case in details.
Having gone through the complaint petition, documents and hearing of his advocate, prima facie, it seemed to be a genuine one hence, admitted and notices were served on the Opposite Parties. On being noticed the Opposite Party No.1(one), No.2(two) and No.3(three) appeared before the Forum and filed their version through their Advocates but though due notice was served on the Opposite Parties No.4(four), he did not appear nor filed his version, consequently the Forum was pleased to set him Ex-parte on Dt.16/10/2017.
In the preliminary objection filed by Opposite Party No.1(one) and No.2(two), the Complainant is not entitle to any claim, and also this case is not maintainable in law and no cause of action arises to bring the case against them i.e. Opposite Party No.1(one) and No.2(two), who are the manufacturer of the set having head office at Noida and branch office at Bhubaneswar respectively. They also objected that they have not any branch office at Bargarh district.
As per the Opposite Parties in Annual maintenance contract the Opposite Party assured to render free service and repair the Television, if required by changing certain (New or reconditioned) parts only, in case any complaint is lodged before its Authorized Service Centre during AMC in force. Again ss per the Opposite Parties no claim for service is made during warranty and pending within warranty period. But the Complainant prefers to avail AMS (Annual Maintenance Service) after expiry of warranty period, and AMC terms never assures any replacement or compensation in any manner.
It is also contends in their preliminary objection that after proper service and observation, when the alleged Television set get ready for delivery at Authorized service centre and the Complainant was intimated personally to receive the Television set from the service centre by giving proper endorsement. The Complainant though assures to receive back the set from the service centre, issued a legal notice through his lawyer by suppressing the facts and terms of AMC. Then the Opposite Party replied the legal notice through speed post on Dt. 22/07/2017 requesting the Complainant to receive the Television from service centre at Sambalpur. But surprisingly same was returned with postal remark “Address not known”. However, replay was served on learned counsel for Complainant by requesting to advice his client to receive his Television which was repaired. So it is not an established case of deficiency in service by the service provider in terms of AMC and not a case of unfair trade practice and also liable to be dismissed with cost. The Parities are bound by the terms and conditions agreed among them. The terms of AMC clearly runs as follows:-
“While every effort shall be made to give preferential attention to emergency breakdown of the equipment, the Company shall not be held responsible for any loss arising.”
Hence, the case is liable to be dismissed as this is not a case of silence in terms of contract and deficiency in service or unfair trade practice. The Opposite Party No.1(one) and No.2(two) were mentioned one decision of Hon'ble Supreme Court i.e. AIR 2006 S.C. 1586, Arajit Pasayat, JJ(Matuti Udyog Ltd Vs Susheel Kumar Gabgotra and others in this context.
The Opposite Party No.3(three) in his version contends that he is the authorized Service Centre of the Company at Sambalpur and it has no any branch office at Bargarh district. The Complainant submitted his Television at Sambalpur for repair and filed the case at Bargarh.
Again he contends that he is an independent concern and not an agent of Opposite Party No.1(one) and No.2(two). And also he runs his business in Sambalpur area in its own name and style, is liable to be dismissed due to non joinder of necessary and appropriate party.
The Opposite Party No.3(three) in support of his contention relied upon the following documents.
Xerox copy of Job card Dt.23/06/2017 in favour of Complainant bearing Job No. RNP 170623040057.
Xerox copy of legal Notice sent by the Complainant.
Xerox copy of a reply to legal notice with proof of service.
Reply sent to Complainant returned un-served.
The Opposite Party No.1(one), No.2(two) No.3(three) filed their version jointly in a common notes stating that there in no conflict of interest among the Opposite Parties. They contend that the Complainant purchased one LG LED Television on Dt.29/10/2014 on payment of consideration from Opposite Party No.4(four) and on Dt.20/06/2017, some defects noticed in the Television, for which service is claimed from Opposite Party No.3(three), the authorized Service Centre, at Sambalpur. On Dt.25/06/2017, alleging the Television to be within warranty, and for which he is entitled for free service. For getting such service he need to run from piller to post and for that he assessed compensation of Rs.25,000/-(Rupees twenty five thousand)only and claimed a new television, alleging deficiency in service committed by Opposite Party. Legal notice is also served on Opposite Parties demanding compensation and replacement of Television. The claim is made stating television to be within warranty but sealed and signed warranty card is not filed disclosing such claim.
The case of the Opposite Parties is complete denial of claim made by the Complainant and submitted that all televisions of LG make are offered for sale with one year warranty during which manufacturer of the product assures to provide free service of cost and replace same specified parts and never assures replacement of the product.
As per the Opposite Parties one year warranty period of Television expires since Dt.24/10/2015, so the claim made by the Complainant is unjust. Again the Complainant availed one Annual Maintenance Contract under which he is entitled to avail free service and replacement of certain parts if required. The Opposite Parties in their version admitted that the Complainant has submitted his Television before Authorized Service Centre, located at Sambalpur on Dt. 23/06/2017. On inspection it is detected that module and main PCB of Television set is required to be replaced and same are also replaced by the Opposite Parties. After such replacement the Television found working perfectly and the Complainant refused to receive back the Television after repairement, claiming a new Television from the service centre. Then the Complainant served a legal notice claiming replacement with compensation apprehending alleged Television to be within warranty. Whereon Opposite Parties replied the notice suggesting the Complainant, that the defected Television is working now perfectly after replacement of minor components and requested the Complainant by telephonic message as well as in writing to receive the same from the service centre. In such circumstances, all the Opposite Parties jointly denies any kind of deficiency in service and unfair trade practice and prays for dismissal of the Complaint.
The Opposite Parties in their version, contend that the dispute on same facts with the Complainant like-existence of warranty on alleged Television and they have provided service in terms of AMC contract, as communication among parties are the documents in the record to establish it. Deficiency in service and unfair trade practice by the Opposite Parties are also disputed.
Again the version of the Opposite Parties contend that LG Electronics India Private Limited, is a registered Company and duly represented through its authorised persons. Company is engaging numbers of Managers to manage the concern and its day to day affairs, who are personally not liable under a Consumer Complaint and the Company is not made a party. Opposite Party No.3(three) is an independent concern and not an agent of Opposite Party No.1(one) or 2(two). Opposite Party No.3(three) is an Authorized Service Centre for Sambalpur district, which runs its business in its own name and style. Hence, the Complaint is liable to be dismissed due to non joinder of necessary and appropriate party. Existence of inherent defect in Television is disputed and no Complaint is lodged or pending during warranty in force.
The version of the Opposite Parties contend, that the Complainant is not a Consumer and there is no jurisdiction to maintain this case in this Forum under Sec-11 of Consumer Protection Act and is liable to be dismissed with penalty to the tune of Rs. 10,000/-(Rupees ten thousand)only under Sec-22 of the Consumer Protection Act.
Having gone through the Complaint, the documents relied on by the Complainant and the preliminary objection, version and citations of the Opposite Party No.1(one), 2(two) and 3(three) and the arguments from the parties the issues crop up for decision of the Forum as follows :-
Whether the Complainant is a Consumer of the Opposite Parties ?
Whether the case is maintainable in its present Forum ?
Whether the Opposite Parties have violated the terms and condition of warranty and Annual Maintenance Contract of the Television, in providing service to the Complainant ?
Whether the Opposite Parties are liable for deficiency in rendering service to the Complainant and so also unfair trade practice ?
Whether the Complainant is entitled to the reliefs as shout for by him ?
Issue No.1(one)
Admittedly the Complainant has purchased the alleged Television with payment of Rs. 30,500/-(Rupees thirty thousand five hundred)only from Opposite Party No.4(four) who is the authorized local dealer of L.G. Products on Dt. 29/10/2014, against which money receipt has been issued by him to the Complainant. Hence as per Sec 2(d), Consumer Protection Act 1986, the Complainant is a Consumer of the Opposite Parties.
Issue No.2(two)
The Complainant in his Complaint alleges that the alleged television sold to him, started giving display problem after warranty period of one year. But the Opposite Parties have issued an extended warranty under happy living plans for the Television with vide card and HPL number for which the Complainant has paid Rs. 3,804/-(Rupees three thousand eight hundred four)only valid from Dt.29/10/2016 to Dt.28/10/2019 the said fact have not been disputed or disagreed by the Opposite Parties. When some problem arosed in the Television set and became function less, the Complainant has placed his grievance before Opposite Party No.4(four) and as per, his direction the set was deposited by the Complainant on Dt. 25/06/2017 before Opposite Party No.3(three), who is the Authorized Service Provider of the product. This fact is evident from the documents filed by the Complainant in the present case record. So in view of such circumstances we are of the view that it is a fit case of Consumer dispute and it is maintainable in the present Forum, as such it is answered accordingly in favour of the Complainant.
Issue No.3(three)
After perusal of the Complaint, memo of argument and the version filed by the Opposite Parties, it is found that defect occurred in the alleged T.V. Set on Dt. 20/06/2017, which is after the expiry of one year manufacturer warranty period No claim for service is made during that warranty period. But the said T.V set defunct in the period of Annual maintenance contact period. The Opposite parties in their preliminary objection in para 3 (three) admitted that “however, the Complainant prefers to avail Annual maintenance Service after expary of warranty period and under AMC, the service provider assures to render free service and repair the Television of required by Changing certain (New or reconditioned) parts only, in case any Complaint is lodged before its Authorised service centre during AMC in force”, which clearly reveals that in accordance with the terms of Annual maintenance contract the Complainant has rightly approached the Opposite Party No.3(three), the authorised service centre of LG. Electronics India Private Limited at Sambalpur during AMC period.
It is the duty of the Company to give free service to their customer as per Annual Maintenance Contract and the Opposite Parties have violated the terms and conditions of AMC with the Complainant.
Issue No.4(four).
In their preliminary objection and version the Opposite Parties categorically mentioned that after proper service and observation, when it was ready for delivery at authorized service centre end, they intimated the Complainant personally and by correspondence to receive the Television from the service centre by giving proper endorsement. The Opposite Parties in their support has filed an judgment order of Hon'ble National Commission, New Delhi of Revision Petition No. 211 of 2009, against the order Dt.03/12/2008 in Appeal No. 2511/2008 of the State Commission, KARNATAKA is not similar with the present case and is no applicable in this case, and also they have filed a number of judgment orders of Hon'ble Supreme Court-2006 AIR SCW 1681 (From Jammu & Kashmir) and others, through their learned counsel
As per the complaint petition and memo of argument by the Complainant Opposite Party No.3(three) has been deferring to solve the problem of the Television till Dt.07/07/2017, even after repeated request by him. Finding no way out the Complainant has served pleader notice on Dt.07/07/2017 on the Opposite Parties, to solve the problem of his Television and to compensate him for his suffering.
From the facts and discussion of the case and also from the documents in the records, Forum found that Opposite Parties are liable for rendering deficiency in service to the Complainant, as they have intimated the Complainant on Dt.27/07/2017 to receive the Television from the service centre after getting the legal notice from him, which was returned back un-served.
Issue No.5(five).
The alleged Television became functionless within the Annual Maintenance Contract period which is admitted by the Opposite Parties in their preliminary objection and version. As per terms and conditions of Annual Maintenance Contract- “It will repair/replace any defective parts and correct any problems resulting from workmanship free of charge”. Again from the reply letter on behalf of LG Electronics India Pvt. Limited through their Advocate reveals that the Complainant availed Annual Maintenance Service, after expiry of warranty period and under this contract, service provider assures to replace certain parts and provide service only, never assures any replacement or compensation in any manner, and the alleged Television set after proper service and observation is ready for delivery at authorized Service Centre. The Complainant has prayed for replacement of alleged Television with a new one of the same value with Rs.25,000/-(Rupees twenty five thousand)only for compensation including litigation expenses.
While considering the question as to whether the complainant is entitled to reliefs as sought for, by him, it is found that the alleged Television set was not within the warranty period of one year but within the Annual Maintenance Contract period, so replacement of Television is not proper and just. Now we are of the view that he is partially entitled to get reliefs claimed by him for which all the Opposite Parties are jointly and severally liable.
Having regards to all the facts, evidence, assertions and counter assertions of the parties, the Forum comes to a conclusion and order as follows:-
-: O R D E R :-
The Opposite Party No.3(three) is directed to remove the defects found in the LG LED 32IB 5650 Brand Television, bearing serial No, 407 PL NB 198455, and deliver in a perfectly fit condition to the Complainant along with a certificate of fitness under the signature of a technical personnel of the manufacture not below the rank of a General Manaer, to the satisfaction of the Complainant and further all Opposite Parties are directed, jointly and severally to pay a compensation of Rs.5,000/-(Rupees five thousand)only towards mental agony, harassment and litigation expenses, within thirty days form the date of Order to the Complainant, failing which the awarded amount shall carry interest @10%(ten percent) per annum from the date of filing of the case till the actual realization of the amount.
The case is allowed against the Opposite Parties and is disposed off accordingly.
Typed to my dictation
corrected by me.
(Ajanta Subhadarsinee)
M e m b e r(w).
I agree,
(Sri Krishna Prasad Mishra)
P r e s i d e n t.
