Brief fact of this case:-  This case has been filed U/s. 35 of the Consumer Protection Act, 2019 by the complainant stating that  on or about 16/04/2021 the complainant booked for the purchase of a television set of 43” smart LED bearing model no. KDL 42W6600 IN5 12442301 manufactured and promoted under the brand Sony, hereinafter referred to as “the said TV”, through Bajaj Finance Limited.  It may be mentioned here that the op has wrongly mentioned in the said invoice dated 16.4.2021, the model no. of the said TV from the model no. as booked by the complainant and financed by the Bajaj Finance Limited.  Further it is pertinent to mention here that the delivered /shipped goods model and tax invoice model are also different.  In this connection the invoice dated 16.4.2021.  The consideration price of the said TV was fixed at Rs.40,999/-.  The complainant accordingly made payment of the consideration price to the op.  The payment of the consideration price was financed by Bajaj Finance Limited in its usual course of business.  In this connection, the documents evincing such booking of said TV. And it is also mentioned herein that in the course of such transactions, the op has also illegally charged an amount of Rs.1,210/- from the complainant as processing fees.  Such amount was paid by the complainant under protest and as it may, such products as the said TV being fragile and delicate, in the usual course of business it was agreed that the said TV shall be delivered by the op to the residence of the complainant through safe hands expert in such transportation and a delivery was effected by the op through his authorized men and agents in the residence of the complainant on or about 18.04.2021 in a sealed box alongwith the said invoice dated 16.04.2021.  The complainant accepted such delivery in good faith that the same contains the said TV which the complainant has booked through Bajaj Finance Limited and the complainant waited for the authorized technicians from Sony to install the said TV.  In the usual course of transactions, the technicians from the manufacturing company cause such installations alongwith a vivid demonstration of its working process to the end user.  Naturally, the complainant being a layman in such regard, waited for such technicians to open the said sealed box and on 19.4.2021 when the said sealed box was inspected by the authorized technicians of Sony, it was discovered that the op had shipped a separate television set in place of the said TV (hereinafter referred to as “the said product”) and as such the said authorized technicians of Sony has refused to install the said TV as the said shipped TV model was differ from the booked TV model.  The television set delivered by the op actually bears model no. Sony 43”Smart HD LED KDL-43W6603 instead of actual booked TV Model no .43” Sony Smart LED bearing model no. KDL-43W6600 IN5 12442301

The complainant was shocked and surprised by such discovery and communicated with the op immediately.  It is pertinent to mention here that the television set delivered by the op differs markedly from the said TV as booked by the complainant.  The features of the said TV are far superior than the one shipped and delivered by the op and the complainant verbally requested the op to replace the product delivered by him with the said TV as booked by the complainant.  The op failed to pay any heed to such request and a laborious and strenuous process for getting the said product replaced by the said TV as booked by the complainant.  In such process, the complainant has repeatedly requested the op to cause such replacement verbally as well as through letters and in this connection it is once again repeated that the said products are fragile and delicate in nature and cannot be effectively handled by the complainant.  Furthermore, the mistaken delivery was caused by the op and hence the duty of replacing the same lies on the op himself and the op has refused to replace the said product despite accepting the position that the same was delivered by his own mistake.  On the contrary, the op has directed the complainant to carry the said product to the place of business of the op for replacement and the complainant has made a representation to the op through his learned advocate on or about 10.9.21 claiming such replacement and the op has responded to such representation inter alia maintaining the same stand directing the complainant to carry the said product to the business place of the op for replacement and the complainant is still paying the monthly EMI regularly month by month since the date of purchase as per schedule of payment fixed by the Bajaj Finance Limited for the purchase of said TV.  It is pertinent to mention here that the delivered TV still is lying under sealed pack as delivered the same by the op in the custody of the complainant.

Complainant filed the complaint petition praying direction upon the opposite party to replace the said product as Sony 43”Smart HD LED KDL-43W6603B (Model No.KDL-43W6603 as delivered) hereof with the said TV 43”Smart LED TV bearing modelno.KDL-43W6600 IN5 12442301 by collecting the said product from the shipping address of the complainant and delivering the said TV at the said address situated at 21/1/Z, D.J. Bye Lane, Konnagar and to pay a sum of Rs. 20000/- as compensation for unfair of trade practice and to pay a sum of Rs.1,00,000/- for mental harassment and suffer for mental peace and agony.

Defense Case:-The opposite party contested the case by filing written version denying inter-alia all the material allegation as leveled against him and stated that the complainant had purchased a Sony 43”Smart TV (Model: KDL 43W6603, Sl. No.S01-8016204-7) from the showroom of the op on 16.4.2021 vide Invoice no.KE2021-22/14 on Zero” Down payment scheme through Bajaj Finance Ltd. but the said Model was not applicable for Zero Down payment scheme soothe ops after mentioned the same to the complainant who agreed to another model of Sony 43 Smart TV (KDL-43W6600) to be mentioned in the invoice for availing the zero down payment advantage with repaying of 9 EMI of Rs.4566 and same was approved by Bajaj Finance Ltd. and the complainant had taken self-delivery of the said TV as because the shipping address is different from the bill address.  Subsequently the OP arranged for installation of TV by company’s technical person but the complainant refused to it because he had installed the TV in a different address and the op sent a reply to the Mail dated 26.07.2021 where he asked the complainant to bring the product to the shop room in running condition with all accessories and box since the delivery department of the op was non-functional because of COVID situation.  The staff employed by the op refused to go to any customer’s house because of the COVID situation and the complainant inspite of receiving the reply of the op did not bring the said TV for getting it exchanged with the one of his choice and has falsely filed this case for making illegal monetary gains and in reply dated 28.9.2021 given by the op to the complainant the op ;requested the complainant and his ld. Advocate to advise the op what he should do as because 5 months had already expired from the date of purchase and further to chose the matter at the earliest.  The complainant and his ld. Advocate instead of settling the matter amicably wasted about another 3 month’s time and then filed this false and frivolous case.  That the said case is thus a premature one and filed with the aim of making illegal monetary gain and it further noted in this context that the warranty period of the TV delivered to the complainant is almost over and any exchange of the said TV at this moment will lead to huge monetary loss of the op.  The complainant intentionally wasted and killed time only to cause monetary loss to the op and the complainant is thus barred by the principles of estoppels, waiver and acquiescence and since the complainant has not come before the ld. Commission in clean hands, he is not entitled to get any relief as prayed for.

As a matter of fact the complainant took delivery of Sony 43”Smart HD LED KDL43W6603B instead of KDL43W6600IN512442301 since the former set was an upgraded version of the later TV set.  The complainant had falsely stated that technical person from Sony company refused to unpack or install the said item and the complainant influence by some personal considerations for making illegal gain refused and denied access to the technical persons of Sony company to the said TV and did not allow them to install the same and the op has come to learn that he has already unpacked the said television set and installed the same in his house by technical persons no belonging to Sony company and is merrily watching and enjoying the same.  This op undertakes to reinstall the said television set in the presence of any ld. Advocate commissioner of the ld. Court and so far as the processing charges concerned it was claimed by Bajaj Finance Ltd and this op has nothing to do with it and op denies and refused all charges leveled against him in respect of mal practice, deficiency of service, unfair trade practice and harassment and to show his bona fide the op is ready to exchange the television set as has been claimed by the complainant.  However the op states in this regard that since the said television set has already been installed by technical person not belonging to the company, this op is not sure whether the same is in proper working condition or whether the same has not been damaged by any means and the op states in this regard that he is willing to exchange the said television set in the presence of any Advocate commissioner of the Ld. Court and provided that the said television set is brought by the complainant to his counter.  This is to enable him to check whether any damage has been caused to the said television set at the time of installation by complainant and further to ensure that any such blame or responsibility of any such damage is not cast upon the op as damage occurring while the said television set was taken but the op from the house of the complainant to his show room.

Issues/points for consideration

On the basis of the pleading of the parties, the District Commission for the interest of proper and complete adjudication of this case is going to adopt the following points for consideration:-

1. Whether the complainant is the consumer of the opposite parties or not?
2. Whether this Forum/ Commission has territorial/pecuniary jurisdiction to entertain and try the case?
3. Is there any cause of action for filing this case by the complainant?
4. Whether there is any deficiency of service on the part of the opposite parties?
5. Whether the complainant is entitled to get relief which has been prayed by the complainant in this case or not?

Evidence on record

The complainant filed evidence on affidavit which is nothing but replica of complaint petition and supports the averments of the complainant in the complaint petition and denial of the written version of the opposite party.

            The answering opposite party filed evidence on affidavit which transpires the averments of the written version and so it is needless to discuss.

Argument highlighted by the ld. Lawyers of the parties

Complainant and opposite party filed written notes of argument. As per BNA the evidence on affidavit and written notes of argument of both sides are to be taken into consideration for passing final order.

            Argument as advanced by the agents of the complainant and the opposite party heard in full. In course of argument ld. Lawyers of both sides have given emphasis on evidence and document produced by parties.

DECISIONS WITH REASONS

The first three issues/ points of consideration which have been framed on the ground of maintainability and/ or jurisdiction, cause of action and whether complainant is a consumer in the eye of law, are very vital issues and so these three points of consideration are  clubbed together and taken up for discussion jointly at first.

   Regarding these three points of consideration it is very important to note that the opposite parties even after appearance in this case and after filing written version, have not filed any petition on the ground of non-maintainability of this case due to the reason best known to them. Under this position this District Commission has passed the order of further hearing of this case. On this background it is also mention worthy that the opposite parties also have not filed any separate petition challenging the maintainability point, jurisdiction point and cause of action issue. The opposite parties in their written version have only pleaded the above noted points. This District Commission after going through the materials of the case record finds that the complainant is a resident of Hindmotor, Uttarpara, Hooghly which is lying within the territorial jurisdiction of this District Commission. Moreover, this complaint case has been filed with a claim of below 50 lakhs and this matter is clearly indicating that this District Commission has also pecuniary jurisdiction to try this case. Thus, the point of jurisdiction which has been alleged by the opposite parties cannot be accepted. Moreover, u/s 34 of the Consumer Protection Act, this District Commission has jurisdiction to try this case. The opposite parties also have raised the plea of limitation and in the written version it has been pointed out that this case is barred by limitation. But in this connection it is important to note that the provision of 69 (2) of the Consumer Protection Act, 2019 is very important and according to the provision of Section 69 complaint case can be entertained by the District Commission or State Commission or National Commission even after expiry of 2 years if the complainant satisfies the ld. Commission that he or she has sufficient ground for not filing the case within two years. Moreover in this instant case the cause of action has been continued and thus the above noted plea of the opposite parties which has been pointed out in the written version is also not acceptable. On close examination of the pleadings of the parties it also transpires that there is cause of action for filing this case by the complainant side against the opposite parties. Moreover after going through the provisions of Section 2 (1) (e) of the Consumer Protection Act, 2019 it appears that this case is maintainable and according to the provision of Section 2 (7) of the Consumer Protection Act, 2019. Complainant is a consumer in the eye of law.       

All these factors are clearly depicting that this case is maintainable and complainant is a consumer of the opposite parties and this District Commission has territorial/ pecuniary jurisdiction to entertain and try this case and there is also cause of action for filing this case by the complainant against the opposite parties. Thus, the above noted three points of consideration are decided in favour of the complainant.

            The point no. 4 is related with the question as to whether there is any deficiency in the service on the part of the opposite parties or not? The point no. 5 is connected with the question as to whether the complainant is entitled to get any relief in this case or not? These two pints of consideration are interlinked and/ or interconnected with each other and for that reason these two points of consideration are clubbed together and taken up for discussion jointly.

            For the purpose of deciding the fate of these two points of consideration and for the interest of getting answers of the above noted questions, there is necessity of scanning the evidence on affidavit filed by the parties and there is also necessity making scrutiny of the documents filed by the parties of this case.

            On comparative studies of the evidence on affidavit filed by the complainant with the evidence on affidavit filed by the opposite parties and on close compare of the documents filed by both parties it appears that on the following points of this case either there is admission on behalf of the both parties or the parties have not raised any dispute:

1. It is admitted fact that complainant on 16.4.2021 booked a television set of 43” smart LED bearing model no. KDL 42W6600 IN5 12442301 for purchase.
2. It is also admitted fact that the said television set was manufactured and promoted under the brand Sony.
3. There is no controversy over the issue that the complainant purchased the said television set through Bajaj Finance Ltd.
4. There is no dispute over the issue that the Bajaj Finance Ltd. had provided finance to the complainant for purchasing the said television set.
5. It is admitted fact that the consideration price of the said television set was fixed at Rs. 40,999/-.
6. It is also admitted fact that the complainant in this case has adopted the plea that the op has changed the model number of the said television set and also changed the invoice in respect of the said television set.
7. There is no controversy over the issue that it is agreed by both sides that the said television set shall be delivered by the op to the residence of the complainant through safe hands expert in such transportation and delivery was effected by the op through his authorized men and agents in the residence of the complainant.
8. There is no dispute over the issue that the complainant on or about 18.4.2021 in a sealed box along with invoice dt. 16.4.2021 accepted the said delivery.
9. It is admitted fact that the complainant wanted to install the said television set with the help of authorized technicians from Sony.
10. It is also admitted fact that when the authorized technician of Sony opened the sealed box on 19.4.2021 and the said sealed box was inspected by authorized technicians of Sony Company, it was discovered that the op had send a separate television set.
11. There is no controversy over the issue that the Bajaj Finance Ltd. has been deducting monthly EMI and complainant has been paying the said monthly EMI regularly and month by month.
12. There is no dispute over the issue that in this case neither the complainant nor the op has prayed any expert commission for inspection of the said television set.      
13. It is admitted fact that neither the complainant nor the op has prayed any local l inspection commission for inspection of the actual position and actual condition of the said television set.
14. It is also admitted fact that the op in their written version has agreed to replace the said television set of the complainant.

Regarding the above noted admitted facts and information there is no necessity of passing any separate observation as it is the settled principle of law that fact admitted need not be proved. This legal principle has been embodied in Section 58 of the Evidence Act.

On the background of the above noted admitted  facts and circumstances the parties of this case are differing on the point and/ or apple of discord between the parties of this case is that the complainant adopting the plea that the op has intentionally changed the model of the said television set and also changed the invoice of the said television set which is undoubtly a deficiency of service and negligence on the part of the op but facts remains that the op has taken the defence alibi that the complainant has installed the said television set in other place with the help of his own technician and for that reason there is no negligence or deficiency of service on the part of the op.

            For the purpose of arriving at just and proper decision in respect of the above noted points of difference and apple of discords this District Commission after going through the evidence on record finds that the complainant has neither prayed before this District Commission for appointment of the expert commission nor submitted any prayer for local inspection to look into the matter as to whether has supplied/ delivered other television set than the model which is chosen by the complainant side. This matter is clearly indicating that the complainant has failed to prove his case by way of placing cogent and independent evidence but facts remains that the op in the W/V has categorically stated that they are ready to replace the said television set. This matter is clearly indicating that the op has admitted the prayer of the complainant for replacement of the television set. All these factors are clearly indicating that the complainant is entitled to get relief in this case in respect of points of consideration nos. 4 and 5 which have been adopted in this case.

In the result it is accordingly

ordered

that the complaint case being no. 157 of 2021 be and the same is allowed on contest but in part against the op.

            it is held that the complainant is entitled to get direction for replacement of the television set which is supplied by the op so the op is directed to replace the television set of the complainant at the cost of the complainant within 45 days from the date of this order otherwise complainant is given liberty to execute this award as per law.

No order is passed relating to compensation and litigation cost.

            Let a plain copy of this order be supplied free of cost to the parties/their ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary post for information and necessary action.

            The Final Order will be available in the following website www.confonet.nic.in.