DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS ,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. 340_ OF ___2015
DATE OF FILING : 27.7.2015 DATE OF PASSING JUDGEMENT: 25.01.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : 1. Tapasi Kundu,wife of late Bibhas Kumar Kundu
- Aishik Kundu
- Sagnik Kundu , both sons of late Bibhas Kr. Kundu of Megha Apartment, Flat no.2A, 2nd Floor, 98, James Long Sarani, Kol-104.
O.P/O.Ps : 1. Great Eastern Appliances Private Limited, 171-A, Diamond Harbour Road, Thakurpukur, Kolkata – 104.
2. M/s Samsung India S.N Enterprise, 7K, M.G Road, Kolkata – 63
3. Sri Soumen Bose, 171-A, Diamond Harbour Road, Thakurpukur, Kol-104.
4. Bajaj Allianz General Insurnace Co. Ltd. GE Plaza, Airport Road, Yevawada, Pune-411006.
5. M/s Bajaj Finance Limited, Infinite Building, 12th floor, Block-EP & GP, Sector-5, Salt Lake, Kolkata – 91.
_____________________________________________________________________
J U D G E M E N T
Sri Ananta Kumar Kapri, President
This is a complaint filed under section `12 of the C.P Act, 1986 by the complainant ,since deceased, alleging deficiency in service on the part of the O.Ps for not returning the price of the TV or not replacing the TV by a new one.
The facts leading to the rise of the instant case may be epitomized as follows.
The original complainant is dead and the present complainants being his legal heirs have been substituted in place of original complainant. The original complainant purchased one LED TV 14 inch on 13.9.2014 from O.P-1for Rs.69,900/- out of which Rs.15,540/-was paid by the complainant from his own pocket and Rs.54,360/- was paid by O.P nos. 4 and 5 as loan. But, the loan amount was disbursed to O.P-1 before installation of the TV in the house of the complainant. On 13.9.2014 one technician came to install the TV but he could not do the same due to some inherent defect in the TV. 10 days thereafter another senior technician came and installed the TV in the house of the complainant but quality of the picture was not satisfactory. The repeated requests for removal of the defect of the TV or for replacing of the same has fallen on the deaf ear of both the O.P nos. 1 and 2 i.e the dealer and the manufacturer of the TV and this nonchalant attitude of them has led the original complainant to file the instant complaint praying for, amongst other, following reliefs:
- To replace the TV or to return the full price of the TV.
- To order for payment of compensation amounting to Rs.4 lacs for mental agony ,harassment etc.
Hence, this case.
The O.P-1 has been contesting the case by filing written version, wherein it is contended that he is a dealer and, therefore, is not entitled to replace the TV or to return the price of the TV. According to him, it is the manufacturer i.e O.P-2 who is liable for manufacturing defect of the TV. So, to him, the complaint should be dismissed in limini against him.
The O.P-4 has also filed written version and it is contended therein by him that there is no cause of action against him , as he is only the Insurance company and not the financer of the complainants.
The O.P nos. 2 and 3have not filed any written statement and, therefore, the case is proceeded against exparte against them.
Upon the pleadings of the parties the following points are formulated for consideration.
ISSUES
- Are the O.Ps guilty of deficiency in service as alleged in the complaint ?
- Are the complainants entitled to get relief or reliefs as prayed for ?
Evidence of the parties:
The complaint has been treated as evidence of the complainants in accordance with their prayer vide petition dated 15.11.2016 . Similarly, the written version submitted by the O.P-1 is also treated as his evidence vide his petition dated 14.3.2017.
O.P-5 has filed written version which is kept in the record and the same is treated as his evidence.
DECISION WITH REASONS
Issue nos. 1 & 2 :
The undisputed facts of the case go thus:- The complainant purchased a TV for Rs.69,900/- from the O.P-1 on 13.9.2014. The first technician went to install the TV on 13.9.2014. Then second technician went to the house of the complainants for removing the defect of the TV about 10 days thereafter. The T.V did not work properly ; the picture was displayed hazily to utter dissatisfaction of the complainants. The completion certificate regarding installation of T.V was not issued by the complainants. The T.V does not work properly still today .
The undisputed facts as narrated above go to pinpoint nothing but one thing that services rendered to the complainants in installation of the T.V is replete with fault, imperfection and shortcoming ,which may invariably be characterized as deficiency in service.
Now arises the question on whom the stigma of deficiency in service can be cast.. O.P-2 i.e the manufacturer is not contesting the case by filing written statement. It is O.P-1 i.e the dealer of the T.V who is contesting herein by filing written version of his statement. It has been contended on behalf of the O.P-1 that the dealer is not liable for the defect arising in the T.V and the manufacturer is solely liable for the said defect. Now to see whether the dealer is liable for deficiency in service or whether the manufacturer is solely liable for such kind of deficiency.
There are certain implied conditions involved with the sale of goods and the provision relating to such conditions are laid down in Section 14 to 17 of Sale of Goods Act. There is implied condition that the goods must be suitable for the purpose for which the buyer purchases it ; it must be of merchantable quality. Any breach of such implied condition makes the seller liable. Coming to the facts of the instant case, it is found that the T.V was sold to the original complainant by O.P-1, dealer. It also transpires on record and which goes undisputed that from day one, the T.V has not been functioning properly. The Technician could not set it in order. Picture is not clear, rather hazy . Then after 10 days thereof, the second Technician came but he also failed to crack the hard nut. Agony of the complainants does not abet. The Technicians could not make the T.V working properly to the satisfaction of the complainants. The complainants did not, therefore, issue any completion certificate to the O.P-1 as regards installation of the T.V. The T.V is defective till today. It is not used by the complainants for the purpose for which it was bought and that’s why it can be said very well that it falls short of merchantable quality. O.P-1 has caused the breach of implied condition. Regards being had to this aspect ,we are of the opinion that the O.P-1 being the dealer is also liable under Sale of Goods Act for the defective T.V sold to the complainants.
Under the Law of agency, O.P-1 is also liable to the complainants. In Indian Oil Corporation Vs. Consumer Protection Council, II (1994) CPJ 21 (SC), it has been held by the Hon’ble Apex Court that once delivery of vehicle is given to the dealer after realizing the price from the dealer, the relationship between the manufacturer and the dealer was not of principal and agent ,but of vendor and purchaser. In the instant case, it is nowhere stated by the O.P-1 that the delivery of the T.V was made to him by O.P-2 i.e the manufacturer after realizing the
price from him and taking into consideration this fact we do hold that the T.V was delivered to the O.P-1 by O.P-2 without realizing the price from him. The O.P-1 is the authorized dealer of O.P-2 and in view of the facts and circumstances as narrated above, the relationship of principal and agent subsisted between them at the time of sale of the T.V by O.P-1 to the original complainant. Therefore, the seller/agent i.e O.P-1 is held liable for deficiency in service.
O.P-2 is the manufacturer of the T.V. It has already been mentioned that since day one, the T.V has been found defective ;it has failed to give clear picture to the satisfaction of the complainants. Two Technicians of O.P-2 have failed to set the T.V in order. It is true that the burden of proof lies upon the complainants and it is found that they have discharged their initial burden by undisputed facts mentioned above. The onus shifts to O.P-2 who fails to discharge the onus. The inability on the part of the O.P-2 to set the T.V in order clearly demonstrates that the T.V suffers from some kind of manufacturing defect and for this reason the O.P-2 is also held liable for deficiency in service.
The original complainant purchased the T.V at the cost of Rs.69,900/-;it is not a meager amount. He parted with this fabulous sums of money only to enjoy the facilities of a brand new T.V. But the T.V has not worked satisfactorily and the O.P-1 and the O.P-2 have adopted an apathetic attitude towards the complainant. They have not taken proper steps to put it in order or to replace it by a new one. Regards being had to these facts and circumstances, it appears that the complainants have certainly gone through tremendous agony, having been deprived of the facilities to watch the T.V of their choice. Both the O.P nos. 1 and 2 will have to compensate for this reason to the complainants. In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is allowed on contest against the O.P-1 and exparte against the O.P-2 . The cost of litigation is determined to be Rs.5000/-.
As regards the rest of the O.Ps i.e O.P nos. 3,4 and 5 the case stands dismissed for want of cause of action.
Both the O.P nos. 1 and 2 , who are jointly and severally liable, are directed to replace the old T.V of the complainants by a new one of same kind and specification free from all defects , or to return the entire consideration money of Rs.69,900/- to the complainants and also to pay Rs.20,000/- as compensation to the complainant for their mental agony and harassment along with cost of Rs.5000/- ,as referred to above, within a month of this order, failing which the compensation amount and the consideration price of the T.V i.e Rs. 20,000/- and Rs.69,900/- respectively will bear interest @12% p.a till realization. A direction is also hereby issued to the
complainants to hand over the old T.V set to O.P nos. 1 and 2 ,whenever replacement or refund is made accordingly by the said O.Ps.
Let a free copy of this order be given to the parties concerned at once.
President
We / I agree.
Member Member
Dictated and corrected by me
President
The judgment in separate sheet is ready and is delivered in open Forum. As it is ,
ORDERED
That the complaint case be and the same is allowed on contest against the O.P-1 and exparte against the O.P-2 . The cost of litigation is determined to be Rs.5000/-.
As regards the rest of the O.Ps i.e O.P nos. 3,4 and 5 the case stands dismissed for want of cause of action.
Both the O.P nos. 1 and 2 , who are jointly and severally liable, are directed to replace the old T.V of the complainants by a new one of same kind and specification free from all defects , or to return the entire consideration money of Rs.69,900/- to the complainants and also to pay Rs.20,000/- as compensation to the complainant for their mental agony and harassment along with cost of Rs.5000/- ,as referred to above, within a month of this order, failing which the compensation amount and the consideration price of the T.V i.e Rs. 20,000/- and Rs.69,900/- respectively will bear interest @12% p.a till realization. A direction is also hereby issued to the complainants to hand over the old T.V set to O.P nos. 1 and 2 ,whenever replacement or refund is made accordingly by the said O.Ps.
Let a free copy of this order be given to the parties concerned at once.
Member Member President
