Date of Filing: 22/08/2011

        Date of Order:12/10/2011

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE -  20

Dated:  12^th DAY OF OCTOBER 2011

PRESENT

SRI.H.V.RAMACHANDRA RAO,B.SC.,B.L., PRESIDENT

SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER

SMT.NIVEDITHA .J, B.SC.,LLB., MEMBER

COMPLAINT NO.1550 OF 2011

Mrs. Julilana Prescilla Mendonca,

No.279, IInd ‘A’ Main, 1^st Phase,

Girinagar, Bangalore-560 085.

(Rep. by In person)                                                    ….  Complainant.

V/s

1. The Branch Service Manager,

Samsung India Electronics Private

Limited, No.162/B, Second Cross,

J.P. Nagar, Bangalore-560 078.

2. The Branch Manager,

Samsung India Electronics Private

Limited, No.9, 27^th Main, 1^st Phase

Ring Road, BTM Layout,

Bangalore-560 076.

(OP-1 & 2 is rep. by Sri. K.P. Bhuvan, Advocate)

3. The Managing Director,

UNILET Appliances Private Limited,

No.60/45, 50 feet Road,

Hanumanthanagar, Opp. Canara Bank,

Bangalore-560 019.                                                      …. Opposite Parties.

BY SRI. H.V.RAMACHANDRA RAO, PRESIDENT

-: ORDER:-

The brief antecedents that lead to the filing of the complainant U/s 12 of the Consumer Protection Act seeking direction to the Opposite Parties to return the undelivered cheque and to pay interest at the rate of 18% per annum from 03.11.2009 on Rs.23,111/-, are necessary:-

          On 20.10.2006 the complainant had purchased 29 inches TV from the opposite party for Rs.23,111/-.  There was malfunctioning of the TV and in the year 2009 it went out completely.  It was got repaired from the opposite party on payment of Rs.654/-.  Even after repair it did not function properly.  Hence the complainant requested the opposite party to repair it properly again.  On their advice it was delivered to the opposite parties on 19.02.2011.  The opposite party kept TV for observation for a week and said that it is not reparable and the spares are not available.  The opposite parties asked the complainant to sign the declaration on 16.03.2011, which reads:-

I Mrs Prescilla Mendonca w/o Antony Mendonca hereby request you that please refund the money of my product bearing model No.CS29240 HE QXXTL serial No.09383 DCL 900014Z in the name of Prescilla Mendonca against my call No.4104654931.

Accordingly the complainant signed the declaration and gave it to the opposite parties.  Even after month, there was no response.  The opposite parties asked the complainant to take back the TV as “the service center will not take responsibility for the product damage and has the right to that product”.  As there was a World Cup Cricket was going on the complainant decided to purchase a new TV and there was no place for old TV.  She scraped the old TV.  A few days back a phone call was received by the complainant stating that the opposite parties has received some unknown amount and the complainant had to return the old TV.  The complainant is not able to return the old TV.  The declaration does not lay down any condition.  Now it is learnt the amount has been sent back to the opposite parties.  This is nothing but deficiency in service.  Hence the complaint.

2.       In this case opposite party No.3 though served remained absent and only opposite party Nos. 1 and 2 have filed their pleadings.  In brief the version of the opposite party Nos.1 and 2 are:-

          The complainant has purchased the TV on 20.10.2006 from the authorized dealer.  It contained only one year warranty.  As per the averments made in the complaint there was some malfunctioning of the TV after lapse of three years that too after the period of warranty.  Hence the complainant got it repaired by paying the amount.  The allegation that the TV stopped functioning completely or there was malfunctioning later, is a bald statement.  The complainant delivered the TV on 19.02.2011 for repair that too after lapse of five years, which is beyond the warranty period.  The complaint is barred by time.  As per the declaration the complainant was bound to return the TV and only on returning the TV the amount would have been paid.  As the complainant refused to return the TV the opposite party returned the cheque for Rs.8,839/- received.  It is needless to say that the complainant has sold the TV for a fabulous price and now claiming the money.  All the allegations to the contrary are denied.

3.       To substantiate their respective cases the parties have filed their respective affidavits.  The opposite party also filed written arguments.  The complainant also has filed the Memo of Authorization given to her husband.

4.       The points that arise for our consideration are:-

:- POINTS:-

1. Whether there is deficiency in service?
2. Whether the complaint is barred by time?
3. What Order?

5.       Our findings are:-

Point (A)        :           In the Positive

Point (B)        :           In the Negative

Point (C)        :           As per the final Order

                           for the following:- 

-:REASONS:-

Point A to C:-

6.       Reading the pleadings in conjunction with the affidavit and documents on record, it is an admitted fact that the opposite party No.2 is the manufacturer of the Samsung Model TV, opposite party No.1 is the service center, opposite party No.3 is the dealer.  It is also an admitted fact that the complainant purchased Samsung CTV 29 inches bearing No. CS29240 HE QXXTL from opposite party No.3 on 20.10.2006 for Rs.23,111/- and he was using it.  There was no manufacturing defect in the TV.  There was no problem in the TV.  The TV had a warranty for one year only.  Within one year there was no problem in the TV at all.

7.       Further it is an admitted fact that on 02.11.2009 the TV had certain problems and it was taken to the opposite party No.2 who got it repaired and delivered it to the complainant by collecting Rs.654/-.  That means as there was no warranty the TV was repaired by collecting money.

8.       Further it is also an admitted fact that there was no problem in the TV and the complainant was using it.  He took the TV to the opposite party No.1 on 19.02.2011.  The opposite party No.1 received it under the acknowledgment dated: 19.02.2011.  The service and repair conditions reads thus:-

Service and Repair Condition

1. Service Center will return the product to the owner who brings this job sheet to the service center only.

Service Center has the right not to return the product if customer has no job sheet shown.

If customer loses the Job sheet, please report to the police and show the evidence issued from police with ID card to Service Center.

2. Customer has to take the repaired product within 30 days after Service Center confirmed.  Except the cases of that the Service Center issued the formal letter that the product takes long time to repair or the problem occurred from Service Center, if customer does not take product back within the limited time, Service Center will not take responsibility for the product damage and has the right to that product.

3. Service Center provides warranty for Labor and Transportation fee after the repaired product is delivered to customer within 90 days, if customer found the same symptom in this period service center will not charge for labor customer may pay the part cost only.

TERMS AND CONDITIONS OF SERVICE please refer as above.

Only after the said conditions for servicing and repairing the TV was taken by the opposite party No.1.  As the TV was an old model the opposite party could not get the spare parts and it could not repair it.  Hence the opposite party No.1 took a declaration from the complainant on 16.02.2011.  The said declaration reads thus:-

That is to say only as per the approval of the management of the Samsung authority the amount will be give to the complainant.  That is to say the opposite party Nos. 1 and 2 could make use of the parts in the old TV for any other use and pay the amount to the complainant the value as on that day on the depreciated value. But the complainant took back the TV and he was using it.

9.       Further it is an undisputed fact that the opposite party Nos. 1 and 2 received a cheque from the Samsung India the sum of Rs.8,839/- and they wanted the complainant to return the old TV, but as he failed to return the TV they did not give the cheque to the complainant.  Here the allegation of the complainant is that, there was no condition imposed regarding payment of the money; here the opposite party wanted to repurchase the scrap and pay the value, but the complainant did not give the TV to the opposite party.  Hence they did not give the cheque.  The complainant has stated that he has scraped the TV.  What he did? there is no answer.  The complainant could have produced the documents of the new TV he had purchased to show whether he has given the old TV to the vendor of the new TV and got certain discount or not.  That has not been done.

10.     The TV that has been sold to the complainant had a one year warranty after one year if any repair has to be made the complainant has to pay for it and get it repaired that has been done once in five years.  After five years as the model are changed every year the opposite parties never expected to keep the spare parts of the old model.  Hence the opposite parties returned the TV in 2011 to the complainant stating that spare parts are not available.  However the opposite party took an undertaking as stated supra regarding repurchase of the TV that too after approval by the Samsung India.  The Samsung India electronics wanted the old TV back so that they can give the cheque for Rs.8,839/-.  But the complainant had sold the TV to other but he has not stated when he has purchased the new TV?  For what value he has purchased the new TV? What exactly he did with the old TV?  The opposite parties ascertained that the complainant has sold the old TV to others.  Hence they did not give the cheque but returned the same to Samsung India.  Hence under these circumstances there is no deficiency in service from the part of the opposite parties.  The complainant has not come to this Forum with clean hands as rightly contended.

11.     Here the contention of the opposite party is that the complaint is barred by time it is an untenable one.  As in March-2011 the opposite party has taken declaration hence the cause of action for that amount to the complainant starts in March-2011 and this complaint is filed in August-2011 that means well within time.  The complainant even now is not ready to redeliver the old TV to the opposite parties.  Even if he has scraped the old TV he could have deliver the opposite party the scraped old TV that also he has not done.  Hence under these circumstances we hold the above points accordingly and proceed to pass the following:-

-: ORDER:-

1. The Complaint is Dismissed.  No order as to costs.
2. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
3. Send a copy of this order to both parties free of costs, immediately.

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 12^th Day of October 2011)

MEMBER                                       MEMBER                            PRESIDENT