IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated, the 28^th day of February, 2023

Present:  Sri. Manulal V.S. President

Smt. Bindhu R.  Member

Sri. K.M. Anto, Member

C C No. 100/2020 (Filed on 29-07-2020)

Petitioner                                            :         Shibu V.J.

                                                                   S/o. Sarasamma,                                                                                          Velliyampalliyil House,

                                                                   Muttappalli P.O.

                                                                   Muttappalli – 686510.

                                                                   (Adv. Sujith T. Kulangara0

                                                                             Vs.

Opposite parties                                 :  (1)   Bismi Appliances,

                                                                   Bismi Arcade,

                                                                   Near Mathrubhoomi, Kottayam.

                                                                   (Adv. T.J. Lakshmanan)

                                                             (2)  Panasonic

Panasonic India Pvt. Ltd.

                                                                   Door H B7/2022 CD

                                                                   GH 2^nd floor, Joseph Valentinus                                                                  

                                                                    buildings, Subash Chandra Bose

                                                                   Road, Javahar Nagar, Kadavanthar

                                                                   Cochin -682020

O  R  D  E  R

Sri. Manulal V.S. President

         The complaint is filed under Section 35 of Consumer Protection Act, 2019

          The complainant purchased Panasonic LED TH-50C300DxH39354 LED TV for Rs.49,000/- from the 1^st opposite party, who is a retailer dealer                          on 03-09-2016.  The 2^nd opposite party is a wholesale dealer of the Panasonic electrical equipments.  At the time of purchase of the product, the opposite parties offered a warranty for 2 years and a guarantee for one year to the product. According to the complainant from 20-05-2019 onwards, the signals of the TV became unclear.  When the clarity of the picture became reduced and the TV started to switch off, the complainant informed the same to the Bismi Appliances, at Kottayam.  A service personnel of the 1^st opposite party took away the TV for repair work.  When the complainant enquired it was informed that TV could be repaired only after the payment of Rs.10,000/-.  Thereafter it was informed to the complainant that the spare parts of the TV were not available and they would provide a new TV to the complainant on payment of Rs.10,000/-.  It is averred by the complainant that he had purchased this TV by attracting the offer that the said TV had warranty for 2 years and a guarantee for one year.  According to the complainant due to the act of the opposite parties, he had suffered much loss and hardships due to the unfair trade practice committed by the opposite parties.  Hence this complaint is filed by the complainant praying for an Order to direct the opposite parties either to repair the TV or to refund the price of the TV and Rs.65,000/- as expenses incurred by the complainant.

          Though the notice was duly served to the opposite parties, 1^st opposite party appeared before this Commission and filed version.  Though the notice was received by the 2^nd opposite party, the 2^nd opposite party neither care to appear before the Commission, nor to file version.  Hence 2^nd opposite party was set exparte.

          Version of the 1^st opposite party is as follows.

          The complainant himself visited the showroom of the 1^st opposite party and purchased the TV, which is manufactured by the 2^nd opposite party.  According to his own whish after thoroughly inspecting the product, the complainant was very much aware about its make and performance and proceeded to buy the TV.  After the sale, service of the product is the duty of the 2^nd opposite party.  The 1^st opposite party is merely a dealer of the TV purchased by the complainant and has never assured any warranty or after sale service of the product which was manufactured by the 2^nd opposite party.  The complainant is fully aware the warranty provided by the 2^nd opposite party and not by the 1^st opposite party.  The 1^st opposite party has never sent a service technician or any other personnel to the complainant’s house.  The 1^st opposite party is unaware of any communications, consultations or transactions that had occurred between the complainant and the 2^nd opposite party.  Even if there is any manufacturing defect on the product it is the duty of the manufacturer of the product to cure it, the 1^st opposite party is not at all liable to cure the manufacturing defect occurred to the product.  There is no deficiency in service or unfair trade practice on the part of the 1^st opposite party.

          Complainant filed proof affidavit in lieu of chief examination and marked Ext.A1 to A3 from the side of the complainant.  V.K. Muhammad, who is the Branch Manager of the 1^st opposite party filed proof affidavit in lieu of chief examination.  No documentary evidence from the side of the 1^st opposite party.

          On evaluation of complaint, version and evidence on record, we would like to consider following points.

1. Whether there is any deficiency in service or unfair trade practice on the part of the opposite parties?
2. If so, what are the reliefs?

Point No.1 and 2

          It is proved by Ext.A1 which is a retail invoice form dtd.13-09-2016 that the complainant had purchased Panasonic LED TH-50C300DX#39354 from the 1^st opposite party on 13-09-2016 for an amount of Rs.49,400/-.  The specific case of the complainant is that from 20-05-2019, the signals of the TV became unclear and subsequently the clarity of the picture became reduced and TV started to switch off.  It is further averred by the complainant when this complaint was informed to the 1^st opposite party, the service personnel of the 1^st opposite party took away the TV for repair, thereafter it was informed that the spare parts of the TV were not available and the 1^st opposite party offered a new TV at the instance of payment of Rs.10,000/- by the complainant.  Ext.A2 is the certificate issued by the Panasonic India pvt. Ltd.  On perusal of Ext.A2, the Panasonic India Private Ltd. offers a warranty for one year from the date of purchase.  It is further stated in the warranty certificate that this warranty covers only the repairs and it does not entitle any replacement of the product.  Ext.A3 is an extended warranty card for an additional 2 year alongwith regular one year warranty which is offered by Panasonic India Ltd.  On perusal of Ext.A3 extended warranty card we can see that it is valid for the products purchased between 15-07-2016 to  15-09-2016. Therefore it is clear from the evidence that TV became defective within the coverage of extended warranty period which was offered by the manufacture of the product. 

          1^st opposite party contented that being only a dealer of the product, 1^st opposite party is not at all liable to cure the manufacturing defect occurred to the product.  It is a well settled position of the law that warranty is provided by the manufacturer and not by the dealer. 

          Section 2(10) of Consumer Protection Act 2019 defines Defect as follows

“Defect” means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods or product and the expression “defective” shall be construed accordingly.

          Thus the trader of any goods or product is liable for defect in the product of the goods which they had sold.

          Section 2(37) of Consumer Protection Act 2019 defines “Product Seller” as in relation to a product, means a person who, in the course of business, imports, sells, distributes, leases, installs, prepare, packages, labels, markets, repairs, maintains, or otherwise is involved in placing such product for commercial purpose and includes –

1. a manufacturer who is also a product seller; or
2. a service provider,

but does not include-

1. a seller of immovable property, unless such person is engaged in the sale of constructed house or in the construction of homes or flats.
2. a provider of professional services in any transaction in which, the sale or use of a product is only incidental thereto, but furnishing of opinion, skill or services being the essence of such transaction;
3. a person who-

1. acts only in a financial capacity with respect to the sale of the product;
2. is not a manufacturer, wholesaler, distributor, retailer, direct seller or an electronic service provider;
3. leases a product, without having a reasonable opportunity to inspect and discover defects in the product under a lease arrangement in which the selection, possession, maintenance, and operation of the product are controlled by person other than the lessor;

Section 2 (45) of the Consumer Protection Act 2019 defines trader in relation any goods means, a person who sells or disputes any goods for sale and includes the manufacturer thereof, and where such goods are sold or distributed any package form, includes the packer thereof.

Hon’ble National Commission in Sheikh Umarul Farookh Vs. Flipkart Internet Private Ltd. (2022 SCC Online CDRC 519) has held that in a tripartite contract between the seller, service provider and consumer.  The seller / service provider are liable for any defect, deficiency of service and unfair trade practice on the service provided or goods/product sold by them.

Here in case admittedly the 1^st opposite party is the seller of the LED TH-50C300DxH39354 LED TV and according to the 1^st opposite party, the 2^nd opposite party is the manufacturer of the same.  Though the 1^st opposite party filed version and proof affidavit they had no case that the TV was not defective at all.  By did not performing the obligation under the warranty offered by the manufacturer of the product, the 1^st and 2^nd opposite party committed deficiency in service and unfair trade practice.  The specific case of the complainant is that the TV had been taken away by the 1^st opposite party, however in version and proof affidavit the Branch Manager of the 1^st opposite party submitted that they are unaware about the communication and consultation which had with the complainant and 2^nd opposite party.  The 1^st opposite party did not adduce any evidence to prove that they had  not sold a defective TV of the 2^nd opposite party to the complainant.  In the light of the above discussion and evidence on record, we are of the opinion that the 1^st and 2^nd opposite party committed deficiency in service and unfair trade practice by not repairing a brand new TV which is purchased from the 1^st opposite party and manufactured by the 2^nd opposite party.  No doubt complainant being a purchaser of a brand new costly TV has put much mental agony and hardship due to the deficiency in service and unfair trade practice from the part of the opposite parties.  Thus we allow this complaint and pass following Order.

1. We hereby direct the 1^st and 2^nd opposite parties to rectify LED TH-50C300DxH39354 LED TV as a defect free one at free of cost within 30 days from the date of receipt of copy of this Order.  The complainant shall take the delivery of the said TV within 30 days from the date of receipt of notice from the opposite parties after curing the defect of the TV. 
2. We hereby direct the 1^st and 2^nd opposite party to pay Rs.15,000/- as compensation for deficiency and unfair trade practice committed by them.

1^st and 2^nd opposite parties are jointly and severally liable to comply the Order within 30 days from the date of receipt of this Order.  If not complied as directed, the complied as directed, the compensation amount will carry 9% interest from date of receipt of Order till realization.

          Pronounced in the Open Commission on this the 28^th day of February, 2023

Sri. Manulal V.S. President             Sd/-

Smt. Bindhu R.  Member                 Sd/-

Sri. K.M. Anto, Member                  Sd/-

Appendix

Exhibits marked from the side of complainant

A1 – Invoice No.737335 dtd.13-09-2016 issued by 1^st opposite party

A2 – Certificate of warranty issued by 2^nd opposite party

A3 – Copy of warranty card issued by 2^nd opposite party

Exhibits marked from the side of opposite party

Nil

                                                                                                By Order

                                                                               Assistant Registrar