DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the  30^th  day of November  2016

Present   : Smt.Shiny.P.R. President

               : Smt.Suma.K.P.  Member                                  Date of filing: 25/08/2015

               : Sri.V.P.Anantha Narayanan, Member

                                                      (C.C.No.119/2015)       

Shanmughan.P                                               -       Complainant

S/o.Pazhaniyappa Muthaliyar,

Nalukettu Veedu, Thenari Post,

Elapully, Palakkad – 678 622

(By Party in person)

V/s

1.Chairman

   Subsidiary Central Police Canteen

   Kellakad

  (By Ad.Stanley James)

2. Manager

    Sumsung Service Centre

    Near Jayamatha College

    KSRTC Bus Depot

   (By Ad.Baluraj.R)

3.Francis Paul

   Manager

   Enterprises Business 10^th Floor,  

   2^nd Flower, Express Avenue Mall, Royapetta,

   Chennai

4.The Manager

   M/s.Samsung India Electronics Pvt.

   2^nd, 3^rd , 4^th Floor,  Tower C, 

   Vipul Tech Square,

   Sector 43, Golf Course Road,

   Gurgaon – 122 002

   (By Adv.Manoj Ambat)                               -        Opposite parties

O R D E R

By Smt.Suma.K.P. Member

The complainant had purchased a Samsung LED 23” TV from the 1^st opposite party on 1/9/2014.  The TV set was mounted  and started working and on 14/8/2015 the picture was not clear and subsequently the picture was not seen. He lodged a complaint before the second opposite party who was the  authorized service centre as complaint no.4199447592. A service technician came from the office of the 2^nd opposite party and inspected the TV and told that the display of the TV is not working and also informed that no warranty will be available for the display when the complainant showed the warranty card. The service technician stated that there is no warranty for display defects and he started arguing that he will not get any warranty for this. On 19/8/2015 the complainant approached the 2^nd opposite party along with TV and asked to rectify the same as there was warranty pending for the TV. They started the same arguments and told that there is no warranty for replacing the display and it will be replaced only if Rs.9,000/- will be paid for the expenses.  They also challenged him that he can proceed with the case. The complainant alleges that the above act of opposite parties is against customer injustice and against the conditions stipulated in the warranty, thereby the opposite party has committed a grave mistake and deficiency in their service. The 1^st opposite party being the dealer is also equally liable to compensate the complainant. Due to the deficiency of service on the part of the opposite parties the complainant and his family had to face mental agony and financial loss. Opposite parties are responsible for curing the defects of the TV of the complainant as per warranty conditions.  Hence, he had approached before this Forum seeking compensation for the mental agony and financial loss suffered by him and his family along with a prayer to direct the opposite parties to rectify the defects since the warranty is still pending when the TV became defective.

Notice was issued to opposite parties for their appearance. Opposite parties filed their respective versions.

1^st opposite party contended that the complaint is not maintainable and is filed without any bonafide. The 1^st opposite party is an unnecessary party to this complaint. On 1/9/2014 the complainant purchased Samsung Led 23” TV from them. The TV  sold by first opposite party is manufactured by Samsung India Electronics Pvt.Ltd. and is under warranty. When it was known to the first opposite party that the TV was not working on 14/8/2015, the complainant raised a complaint before the 2^nd opposite party and complaint was duly attended by the company person. It is known that  there is no warranty for damage display system. So far no complaint was registered by the complainant with first opposite party. Whenever a complaint is received from the customer, first opposite party used to take up the compliant before the concerned company and the company used to rectify the complaint. The warranty / guaranty is given by the company. In this case, the ultimate responsibility is on the manufacturer of the TV purchased by the complainant. Hence the 1^st opposite party had to be exonerated from the proceedings.  They also contended that the manufacturer had to be impleaded in the party array for the proper adjudication otherwise the complaint will be bad for non joinder of necessary parties.  They had also furnished the name and address of the manufacturers to be impleaded. 

The 2^nd opposite party filed version denying all the allegation in the complaint.  They submits that they are only conducting the repairs and service of Samsung India Pvt.Ltd. If there is any manufacturing defects to the product only the manufacturer and the dealer will be responsible for any of the manufacturing defects to the alleged product. They also contended that manufacturer had to be impleaded in the party array. There is no deficiecny of service on the part of second opposite party. They further contended that a service technician visited the complainant house as per the complaint registered on 14/8/2015 by the complainant.  On inspection of the complainant’s TV, it was found that the defect of the display was occurred due to the misuse of the complainant because it was seen water logged and this fact was informed to the complainant.  An estimate of the repair was also  handed over to the complainant.  No free of cost service benefit under warranty condition will be provided for the defective display   due to misuse of the complainant, by which water had entered inside the system. Hence, repair was not effected with free of cost.  There is no deficiency of service from the part of second opposite party. There is no privity of contract between the complainant and second opposite  party and hence second opposite party is not liable for any of the loss suffered by the complainant.

Complainant filed application as IA 366/15 seeking permission to amend the complaint as per the version filed by the opposite parties.  Application was allowed and amendment was carried out. Fresh notice was issued to supplemental opposite parties 3 & 4. Supplemental opposite party 3 remained absent inspite of accepting notice from the Forum. Hence opposite party No.3 was called absent and set exparte.

Opposite party no.4 entered  and appeared through counsel and filed their version. 4^th opposite party contended that above complaint is not maintainable and the complainant has put forward many allegations without any basis.  They admit that the complainant had, on 14/8/2015, reported to the service center that his TV was not working.  On  inspection it was found that the complainant had misused the TV, in so far as the TV was seen water logged. Thus, the warranty condition was broken. As the warranty condition was broken, the estimate for repairing the TV was prepared and given to the complainant. But the complainant refused to accept the same.  The fact of the matter is that the complainant wants to get the TV repaired under the warranty. If a defect had occurred, the 4^th opposite party is bound to look into the defects and only if it is found that the defect is incurable due to a manufacturing defect, the customer is entitled for replacement. On the other hand if the television is repairable and if the same false within the purview of warranty then the same will be repaired free of cost and if not the cost of repair has to be borne by the customer. The 4^th opposite party is ready and willing to abide by the above. But the complainant is adamant that he wants to get the warranty applicable. Even now, if the complainant agrees, 4^th opposite party is ready to repair the TV but the warranty is not applicable as the issue does not come within the purview of the warranty.  Hence the complainant will have to pay the cost of the repair.  The 4^th opposite party has not committed any breach of warranty or any act of unfair trade practice or deficiency of service as alleged. The complainant is not entitled to any compensation as prayed for and hence the complaint has to be dismissed with costs.

Complainant filed chief affidavit  and Ext A1 & A2 was marked from the part of the complainant. Opposite parties 1,2 & 4 also filed their respective chief affidavit.  Opposite party field application seeking permission to cross examine the complainant. Application was allowed and complainant was cross examined as PW1. Evidence was closed and matter was closed.

The following issues are considered

1.Whether there is any manufacturing defects to the TV as alleged ?

2.Whether there is any deficiency in service on the part of opposite parties?

3.If so, what are  the reliefs and costs ?

Issues 1,2 &3

We had perused documents and affidavits filed  by  both parties.  It is admitted fact that the alleged TV had a complaint with regard to the display and a complaint was seen registered on 14/8/2015 before the 2^nd opposite party. 2^nd opposite party states that on inspection it was found that the complainant had misused the TV and  the TV was seen water logged. According to the complainant since the TV was purchased on 1/9/2014  it was under warranty and any defects that had occurred, the opposite  party is bound to look into and he is liable to get it repaired free of cost.  The opposite party had undertaken that they are ready and willing  to  repair the TV.  But the warranty is not applicable as the issue does not come within the purview of the warranty.  The opposite party has alleged that the display turned defective due to the misuse of the complainant and it was seen water logged. As per section 101 of Indian Evidence Act whoever desires any court to give judgement as to any legal right or liability depended on the existence of facts which he asserts, must prove that those facts exists. When a person bound to prove the existence of any fact, it is said that the burden of proof lies on that person. Accordingly the opposite party ought to have proved the fact that the display was gone because it was seen water logged and it might have caused due to the misuse of the complainant.  Since the opposite parties had not produced any evidence to the above aspect, it can be inferred that the case of the complainant is true and genuine. From Ext.A2 it is evident that the alleged TV is under warranty. Hence, the opposite  parties are bound to rectify the defects of the TV free of costs under warranty conditions.  Without doing so, they had committed unfair trade practice and deficiency of service on their part.

 In the above circumstances, we direct the opposite parties 2 & 4  to rectify the defects of the TV of the complainant and set it into working condition. We also direct opposite parties  2 to 4 to pay Rs.5,000/- (Rupees Five thousand only ) as compensation for the mental agony suffered by the complainant and cost of this proceedings. The 1^st opposite party is exonerated from the liability.  The aforesaid order shall be  complied within one month from the date of receipt of this order, failing which complainant is entitled to realize the cost of the TV worth  Rs.12,168/- along with 9% interest per annum from the date of order till realization. Complaint allowed accordingly.

      Pronounced in the open court on this the 30^th day of November  2016.

                                                                                             Sd/-

                      Shiny.P.R.

                      President   

                            Sd/-

                      Suma.K.P.

                      Member

                          Sd/-

    V.P.Anantha Narayanan

                 Member

Appendix

Exhibits marked on the side of complainant

Ext.A1 –    Bill No.14859-2014N dated 1/9/14 issued by opposite party

Ext.A2 –  Customer details cum warranty card issued by opposite party

Exhibits marked on the side of opposite parties

Nil

Witness cross examined 

PW1 – P.Shanmughan

Cost   

No cost allowed