C.F. CASE No. : CC/09/92
COMPLAINANT : Suparna Mondal
D/o Rabin Mondal
Vill – Bahir Sona Khali
P.O. Panpur, P.S. Haringhata
Dist. Nadia, Pin - 741249
OPPOSITE PARTIES/OPS : 1) Bapi Biswas
Prop. Abirbhab Electronics Division
S/o Aswini Kumar Biswas
Vill Mollabelia
P.O. Subarnapur (Haringhata)
P.S. Haringhata, Dist. Nadia
Pin – 741249
- Mr. Kingshuk Dutta (BSM – Asansol Br)
35 (69 GT Rd East 2nd Floor near Vijaya Bank
Asansol – 713303
- Service Engineer
Gopal Pradhan
Vill - Kanchrapara, Jonpur,
P.S. Bijpore
Dist. North 24 Parganas,
PRESENT : KANAILAL CHAKRABORTY PRESIDENT
: KUMAR MUKHOPADHYAY MEMBER
DATE OF DELIVERY
OF JUDGMENT : 6th July, 2010
: J U D G M E N T :
In brief, the case of the complainant is that on 15.05.07 she purchased one TV & DVD from the OP No. 1 at a price of Rs. 14,500/-. It is her further case that from the very beginning the DVD was not working properly. Within two days the new DVD was not operating and the TV pictures were not at all clear. So she lodged a complaint verbally to the OP No. 1 about this. But the OP did not take any step in this matter. Four months after this a person of the company visited her house and repaired the TV, but after lapse of a few days it became inactive. She time and again requested the OP No. 1 to repair her TV, but the OP No. 1 declined to act as per that, nor he himself took any positive step to repair the TV & DVD. Rather after lapse of 03 months the technician of the company visited her house who repaired the TV after taking a sum of Rs. 2,000/- on 28.01.09. In spite of that the TV was not working properly. On 27.07.09 she lodged a complaint at the service centre and on 10.10.09 one person came to her house to repair the TV in the manner of using two green tapes on the two sides of volume box. After the so-called repair pictures were not visible and from the TV one ‘pat pat’ sound was heard. The conduct of the OP shows great deficiency in service in not repairing TV & DVD properly in spite of her repeated requests. So having no other alternative she has filed this case praying for the reliefs as stated in the petition of complaint.
OP No. 1 has filed a written version in this case, inter alia, stating that the complainant has no cause of action to file this case. He has also stated that the complainant purchased the TV & the DVD from his shop room but she never made any complaint to her to that extent that within two days after purchase of TV & DVD both were not functioning properly. It is his specific contention that a warranty card was issued on the TV & the DVD. But violating the terms and conditions of the warranty card the complainant used the TV & the DVD in a rough way due to which both the articles became defective. There was no inherent defect either in the TV or the DVD. She met this OP after the expiry of the warranty period and so this OP is not at all liable to repair the TV at his own cost. Besides this if there is any inherent defect of the TV & the DVD, the liability rests upon the manufacturer of the TV and the DVD company because he is simply the authorized person to sell it to the complainant who at the time of purchase examined the TV and after being satisfied purchased it from his shop room. So he has no liability to repair the TV. As the complainant has no cause of action to file this case against him, so the case is liable to be dismissed against him.
The OP No. 2 has filed a separate written version in this case, inter alia, stating that this complainant has no cause of action to file this case against him. He has also denied all the allegations made by the complainant against him. It is his submission also that after taking delivery of the TV set the complainant received it in full satisfaction, but after lapse of a few months an information was received by him regarding the defect of the TV. So he sent a technician to the complainant’s house, who found a hole in the backside of the TV. After examining it and before the technician the complainant disclosed that the said hole was done by the rat. Besides this all the wires of the TV were also damaged by the rat. So the TV was damaged due to negligence and mishandling by this complainant. From the written version it is available that the OP No. 2 issued an AMC on 28.01.09 with the complainant and in that AMC in the Para – 22 there is a clause that “In case of any dispute between the parties, the matter shall be referred to the arbitrator”. So in view of this arbitration clause this Forum has no power to try this case. Therefore the case is liable to be dismissed against him.
No separate written version is filed by the OP No. 3, i.e., the Service Engineer though notice was duly served upon him.
POINTS FOR DECISION
Point No.1: Has the complainant any cause of action to file this case?
Point No.2: Is the complainant entitled to get the reliefs as prayed for?
Point No. 3: Has the Forum jurisdiction to try this case?
DECISION WITH REASONS
All the points are taken up together for discussion as they are interrelated and for the sake of convenience.
On a careful perusal of the petition of the complaint along with the annexed documents and the written versions filed by the OP No. 1 & 2 and after hearing the arguments advanced by the ld. lawyers for the parties it is available on record that this complainant purchased a TV set (Videocon) along with DVD from the OP No. 1 on 15.05.07 at a total price of Rs. 14,500/-. Both the OP No. 1 & 2 have admitted this purchase in their written versions also. The complainant’s specific case is that from the very beginning since purchase both the TV & the DVD were not functioning properly due to which she time and again complained before the OP No. 1 to repair both the articles. From the petition of complaint as well as from the written version we find that both the TV and the DVD were repaired by the OP 1 & 2 mostly the technician of the OP No. 2 also. But the fact remains instead of that repair neither the TV nor the DVD was functioning properly. Under such a circumstance, the complainant requested the OPs to exchange both the articles with a new TV & a DVD also. On this point the OPs remained silent. Rather it is the contention of the OPs as made in the written versions that due to negligence and mishandling of the articles the TV as well as the DVD were not properly functioning. But no documentary or oral evidence is adduced on their part regarding the mishandling or negligent using of both the articles. But from the facts of this case it is established that the TV & DVD were not functioning properly since the time of purchase. The complainant intimated this to the OP No. 1 who in turn should intimate this to the OP 2 to exchange both the articles as both the articles became inactive within the warranty period. But to that extent no step was taken either by the OP No. 1 or by the OP No. 2. Rather they levelled allegation against the complainant, inter alia, stating that both the articles became damaged due to mishandling and negligent using by the complainant. Both the TV & the DVD have a normal life and it is the general view that articles will not be inactive within the normal period of life. But here we find that both the articles became inactive within a short period after purchase. So we have no hesitation to hold that both the articles had inherent defect which caused disturbance in not giving proper service to the complainant. Naturally, it is the duty of the OPs to exchange with a new good one instead of the old defective one, but they didn’t do that. So we hold that there is gross deficiency in service on the side of the OP No. 1 & 2. Besides this the OP No. 1 is agent of the OP No. 2. Therefore, both are jointly or severally liable for the deficiency in service in this case.
Ld. lawyer for the OP No. 2 submits at the time of argument that as there is an arbitration clause so this Forum has no jurisdiction to try this case. Admittedly one AMC was executed by and between the complainant and the OP No. 3 on 28.01.09 which was valid upto 27.01.10. In this AMC there is a clause which speaks “All the disputes and / or differences arising between the parties will be referred to the sole Arbitrator to be appointed by TIPL. The Arbitrator shall be conducted subject to Arbitration and councillation Act, 1996. The place of Arbitration shall be Aurangabad (MS).” CP Act is a special Act in which there is no bar for a consumer to file a case before this Forum for redressal of his / her grievances in this connection. The Hon'ble National Commission decided in a case as mentioned in 2009 CTJ page 522 (CP) (NCDRC) where the Hon'ble National Commission decided “The existence of arbitration clause in an agreement is no bar to the entertainment of a complaint by a Consumer Forum because it provides an additional remedy to a consumer under the Consumer Protection Act”. On a careful perusal of this decision of the Hon'ble National Commission we hold that it is applicable in the instant case also and in view of this our considered view is that this Forum is quite competent to try this case.
Considering the facts and the circumstances of this case and in view of our above discussions we hold that the complainant has become able to prove her case. So she is entitled to get the reliefs as prayed for. In result the case succeeds.
Hence,
Ordered,
That the case, CC/09/92 be and the same is allowed on contest against the OPs. The complainant do also gets a decree for Rs. 14,500/-. She is also entitled to get Rs. 2,000/- as compensation towards her mental agony and deficiency in service on the part of the OPs along with the litigation cost of Rs. 1,000/-. The OP No. 1 & 2 are jointly or severally liable to pay this decretal amount of Rs. 17,500/- to this complainant within a period of one month since this date of passing this judgment after taking back the defective TV & the DVD, in default the decretal amount will carry interest @ 9% per annum since this date till the date of realization of the full amount.
Let a copy of this judgment be delivered to the parties free of cost.
