BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE   

Dated this the 6^th June 2017

PRESENT

SRI. VISHWESHWARA BHAT D         : HON’BLE PRESIDENT

SRI. T.C. RAJASHEKAR                       : HON’BLE MEMBER

ORDER IN

C.C.No.480/2014

(Admitted on 8.12.2014)

Mr. Ronald V Noronha,

S/o Late Charles Noronha,

Aged about 51 years,

R/at Kembar Village, Padil Post,

Alape, Mangalore Taluk.           

                                                           ….. COMPLAINANT

(Advocate for the Complainant: Sri SK)

VERSUS

1. Propritor,

Panchami Electronics Pvt.Ltd,

Presidency zone 1,

Bendoorwell Circle, Mangalore 002.

2. Propritor, M/s Abhinav Enterprises,

Sony Authorised Service Center,

D/No/25.02.90/2 (2), 1^st floor,

Car Mansion, Kankanady,

Bye pass Road, Mangalore.

3. Sony India Pvt.Ltd, A.31,

Mohan Co-operative Industrial Estate,

Mathura Road, New Delhi.110044.

                                                                 ….OPPOSITE PARTIES

(Advocate for the Opposite Party No.1 Sri AKB)

(Opposite Party No.2: Ex parte)

(Advocate for the Opposite Party No.3: Sri BMD)

ORDER DELIVERED BY HON’BLE MEMBER

T.C. RAJASHEKAR:

I.   1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Party claiming, to replace home theatre (BDV E4 100) to the complainant or refund the amount paid by the complainant to an aforesaid home theatre, to pay a sum of Rs.50,000/ towards loss and damages sustained by the complainant, to pay cost of R0s.10,000/.

2. In support of the above complaint Mr. Ronald V Noronha, filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C8 as detailed in the annexure here below.  On behalf of the opposite parties Mr. Naveena D, (RW1) Accountant, Meena Bose, (RW2) Authorized Signatory, also filed affidavit evidence and answered the interrogatories served on them.

       The brief facts of the case are as under:

We have perused the complaint and the version of the parties. This dispute is with regard to defect in the home theatre purchased by the complainant within guarantee period and the opposite party not repaired with free of cost or replaced the defective home theatre. The complainant alleges that he had purchased SONY BLUE RAY HOME THEATRE MODEL NO BDV E 4100 Serial No.3300260 (hereinafter called The Home Theatre) on 16.12.2013 from the opposite party and the said the Home Theatre turned defective on 02.09.2014 within a warranty period of 1 year. On approaching the opposite party service center the opposite party No 2 herein, has given an estimate of  9838/ for repairing it stating that the repair is not covered under the warranty in spite there is warranty of one year as promised by the opposite party no 1 while selling The Home Theatre. Hence the complainant alleges deficiency in service on the part of the opposite parties. The opposite party no 1 denying the defect in the Home Theatre, contended that he is only the seller and he is not liable for the defect in the Home Theatre. The opposite party no 2 not appeared and placed ex parte. The opposite party no 3 admitting the warranty of one year but contended that, there is no warranty is subject to terms & conditions and the said the Home Theatre got found to be burnt from inside perhaps due to voltage fluctuation or any other external factor. But it is clear that the damage caused to the Home Theatre cannot in any manner attributed to the answering opposite party (opposite party No 3). These are being the facts of dispute we are of the view to decide the following

POINTS FOR ADJUDICATION

          We have considered the evidence on record and the documents produced by the parties. The admitted facts are, the purchase of the Home Theatre by the complainant and it has become defective within 9 months which in the warranty period one year. The complainant approached the opposite party service center the opposite party No 2 and the opposite party No 2 after inspecting the Home Theatre gave an estimate for the repair which shall be paid by the complainant as the repair is not covered under the warranty. The complainant denied that the repair does not cover under the warranty. The opposite party denies that the defect is due to manufacturing defect and their liability to repair free of cost. Admissions and denials reconciled and the following points are taken for consideration in resolving this dispute.

1. Whether the complainant is the consumer under the consumer protection Act 1986?
2. Whether opposite party proves that the defect does not cover under warranty terms & conditions and there is no deficiency in service on their part?
3. Whether the complainant is entitled for the relief prayed for?
4. What order?

On close examination of the facts and the evidence & documents on record, we taken into consideration the notes of arguments filed by the parties, heard the submissions of the counsels and answered the above points as under:

1. In the affirmative.
2. In the negative.
3. In the affirmative.
4. As per delivered order.

REASON

POINT NO 1:  The complainant produced the purchase invoice as EX C 1which established the purchase of the Home Theatre and the purchase is not denied by the opposite parties and hence we answered the point no 1 in the affirmative.

POINT NO 2: The pivot pint of dispute is whether the defect in the Home Theatre is of manufacturing defect? And the defect is not covered under the warranty. There is no dispute with regard to the defect in the Home Theatre or the defect is within the warranty period of 1 year. Hence it will be the burden of the opposite party to discharge their liability by showing the defect is of not manufacturing and it is not covered under the warranty. Hence the point no 2 is taken for consideration.     

2.   The opposite party contends that the defect cropped up in the Home Theatre is not of manufacturing defect but it is due to external reason. The opposite party 3 also contends the Home Theatre found to be burnt from inside perhaps due to voltage fluctuation or any other external factor which is not covered under the terms & conditions of the warranty and hence this opposite party is not liable to repair free of cost. The opposite party to establish his case neither produced any documents nor lead any evidence for showing what actually the cause of defect. There is no any record or report from the service center which states the cause of defect except pleadings. The opposite party quotes the alleged to be clause 8 of the terms & conditions of warranty as under

“This warranty shall not apply to damages caused to the product by accident, lightening, ingress of water, fire or acts of God, improper ventilation, drooping or excessive shock or any external cause beyond Sony’s control and/or any damaged caused due to tampering of the product by an authorized agent.       

3.  Even though the opposite party No 3 relies solely on the above warranty condition not produced the copy of the warranty card or taken any steps to produce it to establish his case. Also the opposite party not produced any record to show that the defect in the Home Theatre cropped up because of some external source or it is not because of manufacturing defect. There is no any service center report with regard to inspection of the Home Theatre and the non-covering under the warranty.  Even opposite party no 3 is not sure of voltage fluctuation is the reason as he states “perhaps” and predicts the external source for defect occurred.(as per Para no 11 of version). We cannot depend upon the prediction of the opposite party with regard to reason for defect. In our opinion, even if it is burnt due to voltage fluctuation, while manufacturing there must be provision for sustaining certain amount of voltage fluctuation which is generally expected through stabilization. The opposite party should show the fluctuation is above the reasonable level. Generally the TV sets and Home Theatre will be protected by the stabilizers. The opposite party case is not that the complainant not used the stabilizers. In our considered opinion  the opposite parties neither produced the warranty conditions nor any report to show that the defect is due to external source like power fluctuation or high voltage which caused the burnt or not shown there is burn in the inside of the Home Theatre. The opposite party even though claims they have inspected on the base of the photographs but not produced any of them before us. Hence with all stuff and stress we hold the opposite party not established the defect in the Home Theatre is due to reason which is not covered by the warranty. Hence we answered the point no 2 in the negative.

POINT NO 3: As per above discussion the opposite parties not produced any warranty card to show the non liability clause and not produced any evidence or report to show the reason for the defect is due to external source beyond the control of the which is cover under the non applicability of the warranty. Hence we hold the opposite parties liable for deficiency in service and the complainant is entitled for the relief. The complainant had prayed for the replacement of the Home Theatre or refund of the money paid. In our opinion due to lapse of time the particular model may not be available, the order of replacement may not hold reasonable and hence the complainant is entitled for the refund of the money paid of Rs.30,000/ with an interest of 9% per annum from the date of complainant till the date of payment. The Home Theatre is the product for entertainment and the complainant is deprived of relaxation and the opposite party was negligent in refusing to repair free of cost we think fit an amount of Rs.10,000/ towards compensation and an amount of  Rs. 6,000/  towards cost of complaint.

POINT NO 4: In the light of the above discussions and the adjudication of above points we deliver the following

ORDER

The complaint is allowed. The opposite parties shall pay jointly and severally an amount of Rs. 30,000/ with an interest of 9 % per annum from the date of complaint till the date of payment and an amount of Rs.10,000/ towards compensation and  Rs.6,000/ towards cost within 30 days from the date of receipt of this order copy.

     Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

(Page No.1 to 8 directly typed by Member, revised and pronounced in the open court on this the 6^th June 2017)

            MEMBER                                              PRESIDENT

        (T.C. RAJASHEKAR)                        (VISHWESHWARA BHAT D)

  D.K. District Consumer Forum                D.K. District Consumer Forum

Additional Bench, Mangalore                   Additional Bench, Mangalore

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 Mr. Ronald V Noronha

Documents marked on behalf of the Complainant:

Ex-C1: 16.12.2013: Tax invoice issued by Opposite Party no.1.

Ex.C2: 2.9.2014: Service job sheet issued by the Opposite Party No.2

Ex.C3: 2.9.2014: Estimate issued by the Opposite Party No.2

Ex.C4: 28.10.2014: Lawyers notice issued by complainant.

Ex.C5: Served acknowledgment (2 in number).

Ex.C6: 21.11.2014: Reply notice sent by Opposite Party no.3.

Ex.C7: Copy of the EMail sent to the Opposite Party No.3

Ex.C8: Copy of the EMail received by the Opposite Party No.3.

Witnesses examined on behalf of the Opposite Parties:

RW1: Mr. Naveena D, Accountant

RW2: Meena Bose, Authorized Signatory

Documents marked on behalf of the Opposite Parties:

Nil

Dated:  06.06.2017                             MEMBER