Judgment & Order  dt. 21.04.2017

            Refusal on behalf of OP No.1 namely Bibhash Dutta, the proprietor of “Silver Line” to replace the electronic goods purchased by the complainant namely Titas Das has galvanized the complainant to file the instant case, praying for issuing a direction to OP No.1 to replace the electronic goods and also to pay Rs.5,000/- as compensation and Rs.1,000/- as litigation cost.

To be brief, the complainant’s case runs as follows.

The OP No.1 has a shop of electronic goods under name and style “Silver Line”. The OP No.2 is an authorized service provider of the manufacturing company. On 5.1.2016 the complainant purchased a combo-pack comprising of one Key Board, one Dongle and one Mouse from OP No.1 for a consideration price of Rs.1,200/- for use in his personal computer (PC). The warranty coverage for those goods was for one year from the date of purchase and warranty is written on the cover pack of the article. At the time of purchase, only an invoice was issued in favour of the complainant by OP No.1 and no money receipt was issued to the complainant. The complainant used the articles and thereafter, around September, 2016, the mouse did not work properly. Then and then, the articles were taken to the shop of OP No.1, who received the articles intact on 26.9.2016. He i.e. OP No. 1 also assured to replace the articles by new articles within 7 days, but ultimately he refused to do so. The complainant knocked at his door several times but to no effect. So, finding no other alternative open to him, the complainant has filed the instant case praying for replacement of all the articles, for a compensation amount of Rs.5,000/- and also for litigation cost of Rs.1,000/- only. Hence, the case.

Name of OP No.2 has been expunged vide Order No,7 dated 27.3.2017. The OP No.1 has filed a written statement wherein it is contended inter alia that the Dongle was in broken condition and therefore the warranty became void. That apart, the complainant did not approach service provider of the company and therefore he is not entitled to get relief as prayed for. The case deserves, therefore, to be dismissed.

Upon the averments of both the parties the following issues are formulated for consideration in the case.

Issues:

1. Is the OP No. 1 guilty of deficiency in service?
2. Is the complainant entitled to get relief as prayed for?

Evidence of the Parties:

            The complainant has filed an affidavit-in-chief and has also got himself examined as PW-1. The documents admitted in evidence on his behalf are marked as Ext. Nos. 1, 2, 3 and 4 as detailed in the list of documents kept in the record. On the other hand, no evidence whatsoever has been led on behalf of the OP No.1.

DECISION  WITH  REASONS

Issue Nos.1 & 2:

            Ld. Lawyer appearing for the OP has contended that the Dongle of the Combo set was in broken condition and that the OP No.1 therefore, refused to replace the goods sold to the complainant. According to him, as per terms & conditions of the warranty, the warranty becomes void, if the goods are broken. So, the warranty became infructuous as Dongle was in broken condition and the complainant is not entitled to get any relief as prayed for. Ld. Lawyer appearing for the complainant has contended that the Dongle was not in broken condition and that it was made over to OP No.1 intact. According to his version, OP No.1 has resorted to false allegation in order to escape his liability.

            Heard the submissions of Ld. Lawyers appearing for both the sides. Perused the complaint and also the written statement filed by the parties. Also perused the evidence on record. Considered all these.

            It is undisputed fact that the complainant purchased a combo set consisting of one Key Board, one Dongle and one Mouse from the shop of OP No.1 for a consideration price of Rs.1,200/-. Also admitted is the fact that these goods were covered by warranty extending over a period of 1-year from the date of purchase. Now, the question is whether the OP No.1 has acted lawfully in refusing to replace the aforesaid electronic goods, especially when the warranty is in force. Let us see, how far the plea raised by the OP No.1 is acceptable. It is contended on behalf of OP No.1 that the Dongle was in broken condition and therefore, the warranty lost all of its efficacy. The complainant has denied that the Dongle was in broken condition. Mere averment on the part of OP No. 1 that the Dongle was in broken condition is not sufficient to prove the fact of the Dongle being in broken condition. The goods are in the custody of the OP and it is clear from OP’s suggestion to PW-1 during cross-examination, the answer of which goes thus, “Not a fact that the Dongle was delivered to OP-1 in broken condition”. The complainant has denied that the Dongle was in broken condition.

The burden of proof lies upon the OP No.1 and such burden is to be discharged by him with cogent evidence. Had the Dongle been produced before the Forum, the Forum would have been able to see whether the article was broken or not. But as no such step has been taken on the part of OP No.1, we feel constrained to hold that the OP No.1 did not take such step, because the cat would be out of the bag. Under such circumstances, we do hold that the Dongle was not in broken condition and that the OP No.1 has resorted to false plea in order to escape his liability. It has been argued on behalf of OP No.1 that the entire liability to replace the purchased goods lies upon the OP No. 2, i.e. the service provider of the company. In our opinion, it is the seller as well as the service provider who are also equally liable for any kind of deficiency in service relating to the goods, as because they act as agents of the manufacturing company. The humble purchaser need not know who is the manufacturing company; they know only their seller and therefore the seller cannot avoid his liability for any kind of deficiency in service relating to the goods sold. By refusing to replace the electronic goods during the warranty period by OP No. 1 he has been guilty of deficiency in service. The OP No. 1 has not also issued any cash memo in favour of the complainant when he sold the goods to the complainant. This act of not issuing any cash memo in favour of purchaser is also an act of deficiency in service on the part of seller. The electronic goods cannot be repaired and therefore these goods need to be replaced. There is no evidence whatsoever on record adduced by the complainant that the complainant has suffered any physical and mental harassment. This being so, the complainant’s prayer for compensation for physical and mental harassment is turned down.

Hence, these two issues are answered accordingly in favour of the complainant. In the result, the case succeeds in part.

Hence,

                                                O R D E R E D

            that the complaint case be and the same is allowed on contest against the OP No. 1 with costs.

The OP No. 1 is directed to replace all the three electronic goods i.e. the Key-board, mouse and dongle by the goods of same nature and quality free from all defects or, if not possible, to return the purchase price of Rs.1,200/- together with a sum of Rs.1,000/- as litigation cost to the complainant within a period of 1-month from the date of this order , failing which the complainant is at liberty to recover Rs.1,200/- as purchase price with interest @10% p.a. thereon till full realization of the amount and Rs.1,000/- as litigation cost by execution of this order in accordance with law.

            Let a free copy of this order be supplied or sent free of cost to the parties concerned.