UTPAL KUMAR BHATTACHARYA, MEMBER 

Instant appeal u/S 15 of the Consumer Protection Act, 1986 had been preferred targeting the judgment and order dt 18.08.2016 passed by the Ld. District Forum  , Kolkata –I (North) in complaint case No. CC/14/104 allowing the complaint with cost against the Appellant/OP who , in the said impugned order , was directed to pay to the Complainant a sum of Rs. 14,800/- only towards the value of the camera in question and was further directed to pay a compensation of Rs. 5000/- only for harassment and mental agony that the Respondent/Complainant had to go through because of the alleged deficiency in rendering service by the said Appellant/OP. The impugned order was carrying further direction towards payment of a cost of Rs. 1,000/- only within 30 days from the date of communication of the order , in default , as directed an interest @ 10% p.a. shall accrue to the entire sum due to the credit of the Complainant till full realization.

            The facts of the case , in brief, are that the Respondent / Complainant purchased from the Khosla  Electronic Ltd one camera of model No. ‘Nikon Coolprix S 9200 brown’  manufactured by the Appellant/OP company at a cost of  Rs. 14,800/- on 23.02.2013 .

            The camera became non functional after being used for once only . The camera , since was having warranty period of one year from the said date of purchase and since the camera was seen to be non functional within the said period of warranty, the Respondent / Complainant approached the Appellant /OP company for taking back the said defective camera providing him with a substitute flawless camera in exchange since , as he complained , the camera had a manufacturing defect.

            The Appellant/OP Company refused to accept that there was at all any manufacturing defect in the camera, rather, as it observed , the camera developed certain defects which are not covered under warranty as those defects developed due to misuse and mishandling of the camera . The Appellant/OP company handed over to the Respondent /Complainant an estimated cost of Rs. 15,274/- only for the repairing charges which was exceeding the cost of the camera itself.

            The aggrieved Respondent/Complainant then filed the complaint case which ultimately led to the passing of the impugned judgment and order which was  under challenge in the instant appeal.

            Heard both sides where Ld. Advocate appearing on behalf of the Appellant/OP and Respondent /Complainant submitted in the same line as narrated in their Appeal and complaint respectively , a gist of which has already been reproduced above while summarizing the subject matter of the case.

            Perused the papers on record. We did not find any reason to conclude that the subject camera had developed any manufacturing defect  because it is a settled issue that the manufacturing defect should  be conclusively decided on the basis of the report of the expert which the case record is marked by its conspicuous absence . The record only indicated an observation of the Appellant/OP company on the basis of the testing report of the camera by his own service centre that the defects developed in the camera for certain reason which were not covered under warranty. We are unable to accept the plea since no testing was done by any expert other than the Appellant/OP’s own service centre for ascertaining the real cause of the defect developed in the camera leaving chances for the interest of the Respondent /Complainant being seriously prejudiced .

            Further, we did not find any tenable explanation towards the submission of an estimate for repairing a less than one year old camera , not exceeding its period of warranty , for an amount of Rs. 15,274/- which was even bigger than the amount needed for the purchasing of the camera itself.

            The activities on the  part of the Appellant/OP Company made us believe that the camera in question was repairable one and it was not repaired for untenable reasons narrated above by the Appellant /OP although the camera was well within the period of warranty .

            Keeping in view the facts and circumstances narrated above, we are of the considered view that the Appellant /OP had deficiency in rendering service .  We, however, do not agree with the order of refunding the entire cost of the camera as directed in the impugned order , nor do we agree with the cost and compensation directed to be paid therein and considered the same should be suitably modified.

            Hence,

                                                                        Ordered

That the Appeal be and the same is allowed in part on contest . The Appellant/OP is hereby directed to repair the subject camera and hand it over to the Respondent /Complainant after the same is made functioning . The Appellant /OP is further directed to pay a compensation of Rs. 3,000/- only for harassment and mental agony and a litigation cost of Rs. 2,000/- to the Respondent /Complainant within 45 days from the date of this order , failing which , simple interest @ 9% p.a. shall accrue to the total value  of the cost of the camera and  compensation amount , that is , ( Rs. 14,300/- + Rs. 3000/-) = Rs. 17,300/- only from the date of default till the order is fully carried out. The impugned order stands modified accordingly.