BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. G. SIVAPRASAD : PRESIDENT
SMT. BEENAKUMARI. A : MEMBER
SMT. S.K.SREELA : MEMBER
O.P. No. 344/2004
Dated : 15.03.2011
Complainant:
Neena M. Paul, 6 B, Windsor Mansion, Kuravankonam, Kawdiar P.O, Thiruvananthapuram.
(By adv. R. Jagadish Kumar)
Opposite parties :
M/s Akai Consumer Electronics India Ltd., 81/88 Alanta, 8th Floor, Nariman Point, Mumbai- 400 021 represented by its Chairman.
Baron International Ltd., Zenith Building, 3rd Floor, Race Course Road, Mahalaxmi, Mumbai- 400 034 represented by its Managing Director & CEO Kabir Mulchandani.
(By adv. A. Manoharan)
Singsons Electronics, M.G. Road, Thiruvananthapuram represented by its Proprietor.
(By adv. A. Abdul Kharim)
This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 15.03.2006, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and reheard the complaint. This O.P having been heard on 25.01.2011, the Forum on 15.03.2011 delivered the following:
ORDER
SRI. G. SIVAPRASAD: PRESIDENT
The facts leading to the filing of the complaint are that complainant purchased an Akai TV. Model No. 2985 on 06.07.1998 from the 3rd opposite party under money back scheme offered by the opposite parties, that the sale price of the T.V was Rs. 28,840/-, that an offer was made by opposite parties under the money back scheme, that opposite parties would pay an amount of Rs. 30,000/- on 06.06.2004, that a post dated cheque for the same purpose was drawn on 2nd opposite party's bank for Rs. 30,000/-, that complainant presented the cheque for collection which was dishonoured and returned, that immediately thereafter the complainant got in touch with the 3rd opposite party who is the dealer of the 1st opposite party marketed by the 2nd opposite party, but 3rd opposite party did not respond positively to the complainant. Stating all these facts complainant sent legal notice to opposite parties, that opposite parties 2 & 3 have acknowledged the lawyer's notice and 1st opposite party's notice returned unserved. 3rd opposite party sent reply trying to wash their hands in the transaction and shifted blame to opposite parties 1 & 2. Hence this complaint to direct opposite parties to pay Rs. 30,000/- with 18% interest thereon along with compensation and costs.
1st opposite party did not turn up. Hence remained ex-parte.
2nd opposite party filed version contending interalia that the complaint is not maintainable, that complainant is not a consumer, that the above said T.V was dealt in bulk by the opposite party and the T.V was sold to the complainant by the 3rd opposite party, that 2nd opposite party has no direct dealing with the complainant, that return of cheque was not for the reason of lack of funds, that 2nd opposite party has not received any consideration for issuance of the cheque. It was not issued for discharge of any legal liability. 2nd opposite party's business failed and sustained heavy loss, that it cannot be said to be a money back scheme as alleged in the complaint, that 2nd opposite party had not practiced any unfair trade practice nor was there any deficiency in service as alleged. Complainant has no cause of action against the 2nd opposite party. Hence 2nd opposite party prayed for dismissal of the complaint.
3rd opposite party entered appearance and filed version contending interalia that opposite party was a dealer of the said T.V set, that complainant purchased the T.V set from the 3rd opposite party and 3rd opposite party had no role in the aforesaid scheme or in respect of the offer to pay any cash under the scheme, that 3rd opposite party had not promised any responsibility to pay the amount in the scheme, that 3rd opposite party also trusted and believed the announcement of the scheme by the manufacturer just in the case of the customer. The endorsement in the bill is as per the scheme envisaged and announced by the manufacturer and 3rd opposite party had no role on the same, that 3rd opposite party who stands in the capacity of the agent is not liable for the acts of the principal under Sec. 230 of the Indian Contract Act, that the statement of the complainant that 3rd opposite party endorsed the money back scheme and committed deficiency in service as against the consumer is absolutely incorrect and uncharitable, that it was a direct transaction between the consumer and the manufacturer and cheque was also issued by the manufacturer and 3rd opposite party is in no way responsible for any alleged deficiency in service. Complainant had no cause of action against this opposite party. There is no privity of contract between 3rd opposite party and the complainant in the matter. Hence 3rd opposite party prayed for dismissal of the complaint.
The points that arise for consideration are:-
Whether the complainant is a consumer of the opposite party?
Whether the opposite party has offered a money back scheme of purchase of Akai TV?
Whether the complainant has opted the said scheme?
Whether the complainant is entitled to get the amount offered under the scheme?
Whether there is unfair trade practice and deficiency in service on the part of the opposite party?
Whether the complainant is entitled to get compensation and costs?
In support of the complaint, complainant has filed affidavit in lieu of examination in chief and has marked Exts. P1 to P11. In rebuttal, 3rd opposite party has filed affidavit and has marked Ext. D1 series.
Points (i) to (vi):- Admittedly, complainant had purchased an Akai T.V model No. 2985 for Rs. 28,840/- on 06.07.1998 from the 3rd opposite party. It has been the case of the complainant that he had purchased the said T.V under money back scheme and the same was endorsed by the 3rd opposite party in the bill issued to the complainant, that as a part of the said scheme 3rd opposite party has issued a cheque for Rs. 30,000/- dated 06.06.2004 drawn on 2nd opposite party's bank Siam Commercial Bank, PCL, Mumbai. It has also been the case of the complainant that complainant presented the said cheque for encashment which was dishonoured by the bank concerned. Immediately thereafter complainant had in touch with the 3rd opposite party and 3rd opposite party informed her that they were helpless and blamed opposite parties 1 & 2 for the entire episode. Ext. P1 is the copy of the cash bill issued by the 3rd opposite party in the name of the complainant on 06.07.1998. As per Ext. P1 the price of Akai colour T.V model 2985 is Rs. 28,840/-. A perusal of Ext. P1 reveals that the said T.V was purchased by the complainant under Akai company money back scheme Rs. 30,000/-. Ext. P2 is the operator's manual. Ext. P3 is the copy of the post dated cheque issued by Baron International Ltd (2nd opposite party) in the name of the complainant dated 06.06.2004 for Rs. 30,000/- drawn on the Siam Commercial Bank, PCL, Mumbai. Ext. P4 is the document showing customer name and address enquiry. Ext. P5 is the copy of summary sheet return issued by HSBC. Ext. P6 is the copy of advocate notice dated 06/04. Ext. P7 is the postal receipt addressed to the Baron International Ltd. Ext. P8 is the original advocate notice addressed to the 1st opposite party returned. Ext. P9 is the copy of the acknowledgement card addressed to 2nd opposite party. Ext. P10 is the acknowledgement card of the 3rd opposite party. Ext. P11 is the reply notice issued by 3rd opposite party. Complainant has not been cross examined by opposite parties. As such the affidavit filed by the complainant remains unchallenged. 2nd opposite party has not filed affidavit to substantiate their contention in the version. It is admitted by 2nd opposite party in their version that a cheque was issued to the complainant, that the cheque was not supported by consideration and that it was not issued for the discharge of any legal liability also. It is further contended by the 2nd opposite party that they were under the bonafide belief that the cheque issued can be honoured. It has further been contended by the 2nd opposite party that the offer to give a gift or prize or incentive as per cheque could not materialize due to circumstance being changed and situation turned beyond the control of the 2nd opposite party. 3rd opposite party has filed affidavit and Ext. D1 was marked. It is the stand of the 3rd opposite party that 3rd opposite party is an agent of the Akai TV manufactured by M/s Akai India Ltd, that M/s Akai India Ltd. is marketing the product in Kerala through their Indian representative M/s Baron International Ltd., Mumbai and 3rd opposite party is the agent of the same Baron International Ltd. It is further contended in the version of the 3rd opposite party that the cheque in question was issued as a part of the scheme exclusively proposed and promoted by M/s Baron International Ltd., that 3rd opposite party has not given any assurance or guarantee to the complainant regarding its payment. It has also been contended by the 3rd opposite party that with respect to the Akai money back scheme they had no role in the scheme and it is the responsibility of the Baron International Ltd. to refund the amount on its maturity and the 3rd opposite party being only an agent is protected by virtue of the provisions of Sec. 230 of the Indian Contract Act. In view of the foregoing discussions and evidence available on records it is to be pointed out that as far as the consumer/complainant is concerned, we need not go into the complicated questions of law rather we need to follow the principle of natural justice. Admittedly, as per Ext. P1 opposite parties 1 to 3 are involved in the transaction and complainant purchased the T.V under Akai money back scheme. 2nd opposite party admitted the issue of cheque in connection with the said transaction thereby opposite parties are jointly and severally liable in the said transaction. They cannot back out from their promise or offer which would definitely amount to unfair trade practice and deficiency in service on the part of the opposite parties. In this context, it should be noted that in the present day of globalised market what we see is that monopolistic competitive firms adopt their sales promotion strategies to induce the customers to prefer their branded products by a variety of offers, thereby consumers may be entrapped by unfair trade practices. We have to protect the customers from being trapped in the clutches of unfair trade practice being adopted by competitive firms. In the instant case complainant became one of the victims of such unfair trade practices adopted by the opposite parties. The 1st opposite party remained exparte. 2nd opposite party has not filed affidavit. 3rd opposite party has filed affidavit but complainant has not been cross examined by the opposite parties to disprove the contentions in the complaint. Opposite parties who enjoyed the benefit of misleading advertisement are bound to compensate the complainant. Taking into consideration of the totality of circumstances we are of the opinion that justice will be well met if complainant is granted a sum of Rs. 20,000/- towards compensation.
In the result, complaint is allowed. Opposite parties shall jointly and severally pay the complainant a sum of Rs. 20,000/- towards compensation within 2 months from the date of receipt of this order. Parties shall bear and suffer their costs.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15th day of March 2011.
Sd/-
G. SIVAPRASAD : PRESIDENT
Sd/-
BEENAKUMARI. A : MEMBER
Sd/-
S.K. SREELA : MEMBER
jb
O.P. No. 344/2004
APPENDIX
I COMPLAINANT'S WITNESS :
NIL
II COMPLAINANT'S DOCUMENTS :
P1 - Copy of the cash bill issued by the 3rd opposite party in the
name of the complainant dated 06.07.1998
P2 - Operator's Manual
P3 - Copy of the post dated cheque issued by Baron International
Ltd. in the name of the complainant dated 06.06.2004
P4 - Document showing customer name and address enquiry.
P5 - Copy of summary sheet return issued by HSBC.
P6 - Copy of advocate notice
P7 - Postal receipt addressed to Baron International Ltd.
P8 - Original advocate notice addressed to 1st opposite party
returned.
P9 - Copy of the acknowledgement card addressed to 2nd opposite
party.
P10 - Acknowledgement card of the 3rd opposite party.
P11 - Reply notice issued by 3rd opposite party.
III OPPOSITE PARTY'S WITNESS :
NIL
IV OPPOSITE PARTY'S DOCUMENTS :
D1 - Copy of advocate notice dated 07.07.2004.
Sd/-
PRESIDENT
