BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 20th December 2016
PRESENT
SRI.VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI. T.C. RAJASHEKAR : HON’BLE MEMBER
ORDER IN
C.C.No.344/2012
(Admitted on 21.11.2012)
Mr. Achutha Chevar,
S/o Mahalinga Acharya,
R/at Kudal Merkala Post, Mangalpady,
Kasaragod Taluk & District,
Kerala State 671 324
…......... COMPLAINANT
(Advocate for the Complainant: Sri SLS)
VERSUS
1. The Proprietor,
HARSHA, K.S. Rao Road,
Mangalore 01.
2. The Managing Director,
NIKON India Pvt. Ltd.,
Kaiser E Hind Building, # 9/3,
Ground Floor, Richmond Road,
Bangalore 560025.
…..........OPPOSITE PARTIES
(Advocate for the Opposite Parties No. 1: Smt.HM)
(Advocate for the Opposite Parties No. 2: Sri.KKM)
ORDER DELIVERED BY HON’BLE MEMBER
SRI. T.C. RAJASHEKAR:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming certain relief opposite parties to return the price of the said defective Nikon Digital Camera of Rs.5,285/ with interest 18% p.a, to pay Sum of Rs.2,50,000/ compensation towards mental agony and other sufferings and to pay Rs.2,000/ towards the cost of the proceedings.
2. In support of the above complainant Mr. Achutha Chevar affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked as Ex.C1 to C10 detailed in the annexure here below. On behalf of the opposite party Mr. Yogish K (RW1) Store Manager Mr.Jogi Francis, Dy General Manager also filed affidavit evidence and answered the interrogatories served on him produced documents got marked as Ex.R1 detailed in the annexure here below.
The brief facts of the case are as under:
We have perused the complaint and the version averments of the parties. This dispute is with regard to Nikon Camera defect during the warranty period. According to complainant he had purchases the Nikon Camera for Rs 5285/ and while using with in short time and during guarantee period there started problem like Battery lock not setting, picture not operating. On complainant to Opposite parties the Opposite party no 1 taken the camera for servicing free of cost and later on getting it repaired from the opposite party no 2,said an amount of Rs 3494.39 to be paid as repair charges. Since it is in the subsistence of the guarantee period the Opposite party bound to repair it on free of cost and denial amount to deficiency of service. The Opposite parties contested that the problem/defect is due to physical damage and the warranty will not cover the physical damage and it comes under exclusion clause. Hence they are not liable to the complainant and there is no deficiency in service from their part. On considering the crux of the dispute in resolving it we consider the following
POINTS FOR ADJUDICATION
We examined the evidence produced by the rival parties and documents produced. As per our observation the admitted facts are, the purchase of camera by the complainant from the Opposite party no 1 manufactured by the Opposite party no 2 and defect in the camera related to battery slot not locking within guarantee period. The Opposite party no 1 taken it for servicing and the same has been sent to the opposite party no 2 for repairing and the same has been repaired at the cost of ₹ 3494.39/- and the opposite party no 1 demanded from the complainant to pay the charges and hoarding the camera by Opposite party no 1 for not paying the charges by the complainant. The camera is under the custody of the opposite party no 1. What is denied is the Opposite party denies the defect is due to normal handling and the defect is covered under the guarantee terms. The complainant denies that the Opposite parties contention of informing the charges in advance stating the guarantee is not covered, before getting it repaired and on permission from the complainant the camera is repaired. Complainant also denies the defect is not covered under the guarantee as opposite parties contended. Based on these admissions and denials inter alia we consider the following points for consideration
- Whether the complainant is the consumer under the Consumer Protection Act 1986?
- Whether the Opposite parties prove that the defect in the camera is not covered under the guarantee given?
- Whether the complainant is entitled to the prayed relief?
- What order?
On considering the evidences of the parties and hearing their counsels we adjudicated the above points and answered as
- POINT NO 1 in the affirmative.
- POINT NO 2 in the negative.
- POINT NO 3 in the affirmative.
- POINT NO 4 as per order delivered.
REASON
POINT NO 1: The complainant produced the EXC1 for having purchased the Camera from the Opposite party no 1 on 16.09.2011by paying Rs 5285/ and EX C3 for giving the camera for repair to the Opposite party no 1which established the consumer and the trader cum service provider relation between the complainant and the opposite parties hence the answered the point no 1 in the affirmative.
POINT NO 2: According complainant the camera he had purchased had become defective within warranty period. The defect is the Battery lock not setting, picture not operating. The opposite parties after admitting the defect denied their liability on the ground that the nature of defect is not covered under the warranty. The physical damage excluded from the warranty coverage. Since the Opposite parties after giving warranty but denies the coverage it is burden of the Opposite party to establish and prove their case hence the point no 2.
2. The Opposite parties produced the warranty card exhibited as EX-R1 and drawn our attention for perusal towards clause 6 of the 2 YEARS COMPREHENSIVE WARRANTY TERMS AND CONDITIONS. The clause 6 engrossed for convenience
Damage caused due to accident, sand water dust fungus battery leakage etc, are not covered under warranty. In version as well as in evidence the same contest forwarded by the Opposite parties. the notes of the arguments also relied on the same condition of warranty. Hence the crux of the dispute is the applicability of the warranty condition in the instant case and the Opposite parties have to establish the applicability of the clause indisputably. The Opposite party has to prove the defect in the camera cropped up due to any one of the ground narrated in the clause 6. Opposite parties have not produced any cogent evidence as to the defect arise because of accident or sand, or water or dust or fungus or battery leakage. Only the ground of defense is the defect is physical damage. As per Opposite parties version the damage battery slot lock physical damage and Opposite parties predict the damage may be due to falling down. But if the camera fell and caused damage there must be some other damage also to the camera which the Opposite party not contended or brought to our notice. Even the Opposite parties not presented the defective part replaced to show the damage caused. The breakage may also be attributed to non- standard or defective material used in manufacture. It was the bounden burden of the Opposite party to establish with cogent evidence, the damage is due to mishandling but only presumption or predictions cannot be accepted. The camera has admittedly become defective within 10 months of purchase where the warranty is given for two years which is also a point of consideration apart from the fact that the ratio between the repair charges 3494/ and the product price is Rs 5285/ There is no record to show that the Opposite parties informed the complainant before repair is done as contended by the Opposite parties. The Opposite parties not proved their case as contended and hence we answered the point no 2 in the affirmative.
POINT NO 3: As per point no 2 the Opposite parties not proved that the defect in the camera is not covered under the warranty and as such held the Opposite parties liable for deficiency in service. The complainant is entitled for the refund of the price paid for the camera Rs 5285/ with an interest at 10% per annum from the date of 16.09.2011 till the date of payment. The complainant stated to be a press reporter and the Opposite parties not specifically denied but denies because of lack of knowledge. Keeping this in mind and there is negligence on the part of the Opposite parties in dealing with the customer complaint we consider an amount of Rs 10000/ as damages and Rs 10000/ for mental agony and hard ship as compensation. The complainant is also entitled for an amount of Rs 5000/ towards litigation expenses. The Opposite parties are entitled to keep back the camera in dispute which is in the custody of the opposite party no 1.Hence the point no 3 in the affirmative.
POINT NO 4: in the light of above discussion and the adjudicated point we pass the following
ORDER:
The complaint is allowed. The Opposite parties shall pay jointly and severally the complainant an amount of Rs 5285/
(Rupees Five thousand Two hundred Eighty Five only) with interest of 10% per annum from the date of 16.09.2011 till the date or payment and an amount of Rs 20,000/ (Rupees Twenty thousand only) towards damages and compensation and litigation expenses of Rs 5,000/ (Rupees Five thousand only) within 30 days of this order received.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 9 directly typed by member revised and pronounced in the open court on this the 20th December 2016)
MEMBER PRESIDENT
(SRI. T.C. RAJASHEKAR) (SRI.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. Achutha Chevar
Documents marked on behalf of the Complainant:
ExC1: 16.09.2011 : Tax invoice issued by O.P No.1 in proof of purchase of the Digital Camera (Original)
ExC2: 16.09.2011 : Service Warranty issued by O.P. No.1(Original)
ExC3: 05.07.2012 : Customer Complaint acknowledgement Form issued by O.P No.1 (Original)
Ex.C4: 13.07.2012 : Estimate of Repairs issued by O.P No.2 (Original)
Ex.C5: 09.09.2012 : Advocate Notice issued on behalf of the Complainant addressed to O.P No.1 and 2 (Copy)
Ex.C6: 10.09.2012 : Postal receipts two in No’s in proof of Issuance of above said notice (Original)
Ex.C7: 11.09.2012 : Postal acknowledgements Form in proof of issuance of above said notice to O.P No.1 (Original)
Ex.C8: 12.09.2012 : Postal acknowledgements Form in proof of the delivery of above said notice to O.P No.2 (Original)
Ex.C9:12.09.2012 : Reply issued by O.P No.2 (Copy)
Ex.C10:15.09.2012 : Reply issued there of Prakash Retail Pvt Ltd by O.P No.1 (copy)
Witnesses examined on behalf of the Opposite Parties:
RW1: Mr. Yogish K, Store Manager,
RW2: Mr. Jogi Francis (Rw1) Dy. General Manager Customer relations
Documents produced on behalf of the Opposite Parties:
Ex.R1: Copy of the warranty Card
Dated: 20.12.2016 MEMBER
