Consumer Complaint under DEFECTIVE gOODS :

JUDGMENT

(Delivered on – this 27^th August, 2018 )

Judgment delivered by

HON’BLE PRESIDENT MR. R.G. WANKHADE

This complaint has been presented for refund of amount paid for defective Television Set/ model and also for refund of extra amount paid for extended warranty and for Evolution Kit.

The facts of the complaint are as follows:

CASE OF COMPLAINANT:

REPLY/WRITTEN STATEMENT OF OPPPNENT NO. 1:

3.         Opponent no. 1 filed its reply/written statement through its Assistant Department Manager, Shri. Hajari Singh on 14th June, 2017 and denied all the allegations in the complaint. It is alleged that no case has been met out against Opponent no. 1 particularly co-extensively liable along with Opponent nos. 2 to 4. It is alleged that there is no cause of action against Opponent no. 1 as he has not approached to it for removal of any defect and all the allegations are in relation to manufacture defect. It is alleged that Opponent no. 1 is known for its best services and always ensured best possible services to all its clients. It is further alleged that there is no deficiency in service and as the role is of sale of product Opponent no.1 cannot be held responsible for any defect as alleged. It is alleged that the balance of convenience lies in its favour the complaint be dismissed with heavy costs.

REPLY OF OPPONENT NO. 2 AND 4:

4.         Opponent no. 2 and 4 filed their reply on 14^th June, 2017 and denied all the allegations in the complaint. It is alleged that the products manufactured by Opponent no. 2 passes through stringent quality checks and test trials before the actual start of the commercial production. It is alleged that the customers of all products manufactured by them are providing services through a large network of Authorized Service Centers. It is further alleged that after receiving the complaints on 08th December, 2014, 28th March, 2016, 05th October, 2016, and13th July, 2016 from the Complainant, its engineer visited the house of the Complainant and removed the defects to the satisfaction of the complainant. It is also alleged that the engineer noticed the defect of vertical lines in the panel of the screen of the product and further informed the Complainant that he will get the refund as per warranty policy as the production is stopped and for that reason the Complainant had agreed. It is further submitted that on 22nd December, 2016 the amount as per warranty policy was refunded to the Complainant. It is further submitted that as the amount was refunded as stated above, there is no cause of action to file the complaint and pray for dismissal of the same with costs.

OBJECTION OF OPPONENT No. 2 AND 4:

5.         Opponent no. 2 and 4 have also submitted one application on 14th June, 2017 for dismissal of complaint on the same ground as alleged in their reply. The same has been replied by Complainant.

OPPONENT NO. 3 PROCEEDED EXPARTE:

6.         Opponent no. 3 though served with notice on 04th May, 2017 remained absent and so Opponent no. 3 was proceeded ex-parte as per noting dated 19^th December, 2017.

ARGUMENTS OF PARTIES:

7.         We have heard the Complainant in person. As per noting dated 19^th December, 2017 the Complainant submitted application treating his complaint and the documents along with it as his evidence.  We have gone through the complaint and the documents along with it and the affidavit of evidence of Opponent no. 1 and the written arguments of Complainant and written argument of Opponent no. 2 and 4 submitted on 13^th August, 2018.

8.         Opponent no. 2 and 4 in their written argument has referred to some citations but they have not supplied the books or copies of citations for reference and so argument in respect of citations has not been taken into consideration.

FINDINGS:

9.         Opponent no. 1 is a reputed Company. Opponent no. 2 is a manufacturing Company of electronics products including Television Set. Opponent no. 4 is the Chief Executive Officer of Opponent no. 2. Opponent no. 3 is the Authorized Service Center of Opponent no. 2.

10.       The Complainant had purchased the product in question as described in paragraph no. 2 above from Opponent no. 1 on 16th August, 2012. Opponents have also provided services to the Complainant about that product. The Complainant was refunded the amount of Rs. 87, 847/- (Eight seven thousand eight hundred forty seven) as stated above, according to Opponent 2 and 4 as per warranty policy, but the Complainant was not satisfied with the action of Opponent no. 2 and 4 and accepted the same under protest, so it cannot be said that the relation as consumer ends. So there is no difficulty to hold that the Complainant is the consumer under the provisions of The Consumer Protection Act, 1986.

11.       As reveled from the Complainant and reply of Opponent nos. 1, 2 and 4 and also from the arguments that there is no dispute that the price Rs. 2, 58,375/- (Two Lac fifty eight thousand three hundred seventy five)of product in question was paid by the Complainant. There is also no dispute that there was two years free warranty on the said product and further warranty was extended till 16th August, 2017 by paying extra amount of Rs. 9765/- (Nine thousand seven hundred sixty five)  by  Complainant. It is also clear that the Complainant has paid Rs. 16000/- (Sixteen thousand) as advised, while purchasing the product in question, to purchase Evolution Kit to upgrade the latest software. There is document to show that it was purchased from Opponent no. 2 vide invoice date 04th December, 2014.

12.       The Complainant had noticed some defect of vertical colour band on RHS of edge on his Television Set in the month of December, 2014. He also noticed vertical lines on main panel on his Television Set in the month of March, 2016. All the time he made complaints to the Opponent nos. 2, 3 and 4. He also made several correspondence including email to Opponent no. 2 and 4 about the defects noticed in the product. He lodged the Complaint on 13th September, 2016, 17th September, 2016, 25th September, 2016 and 05th October, 2016 with the Service Center of Opponent no. 2. It seems that after continuous persuasion the Service Engineer of the Opponents visited the Complainant and removed some defect. According to Opponent nos. 2 and 4 the Complainant was satisfied with service given by the Service Engineer about removal of defects and the compliance of the Complaint. However, Opponents nos. 2 and 4 have not produced any documents about the complaints attended by the Service Engineer was to the satisfaction of the Complainant.

13.       It would be cleared from the reply and written argument of Opponent no. 2 and 4, that the complaint dated 05th October, 2016 was attended by the Service Engineer and the Complainant was informed that the production of the product in question was stopped by the manufacturer and he will get the refund of amount as per warranty policy. It appears that the Complainant was not made aware of refund of a very small amount against huge amount paid by him for the said product on the ground of depreciation value of the product.

14.       The product in question was purchased on 16th August, 2012 with free two years warranty. The warranty was extended till 16th August, 2017 by paying additional amount of Rs. 9765/- (Nine thousand seven hundred sixty five) by the Complainant. On advice the Complainant has also paid Rs. 16000/- (Sixteen thousand)to Opponent no. 2 to purchase the Evolution Kit as referred to in paragraph no. 2 above. The Service Engineer of the Opponents clarified the position while attending the complaint about defect of vertical lines on main panel and refund of amount as the manufacture of the product in question was stopped. The Service Engineer was also aware that the product in question was faulty and made aware that the Complainant would get refund of the product price as per warranty policy. Accordingly the amount of Rs. 87, 847/-(Eight seven thousand eight hundred forty seven) was refunded to the Complainant and the Television Set was taken aback with them by the Service Engineer of the Opponent against the price of Television Set. It is, thus, clear that the product in question was not having any guarantee to the satisfactory result in case of replacement of parts. In this case the Service Engineer shows their inability to replace any part to remove the defect as the production of the product in question was stopped by Opponent no. 2. This, it is cleared that the defects in the product in question was having a manufacturing defect. The action of refunding a very small amount as stated above is nothing but a deficiency in service.

15.       There is no clear evidence on record that the Complainant has agreed to accept the amount of Rs. 87, 847/- (Eight seven thousand eight hundred forty seven) calculated by Opponent no. 2 and 4, against the price Rs. 2, 58, 375/- (Two Lac fifty eight thousand three hundred seventy five) paid by the Complainant. There is also no evidence produced by Opponent nos. 2 and 4 as to how they reach to the conclusion of refund of amount of Rs. 87, 847/- (Eight seven thousand eight hundred forty seven) though there was fault in the product in question which was purchased by the Complainant for huge amount of Rs. 2, 58,375/- (Two Lac fifty eight thousand three hundred seventy five) along with additional amount of Rs. 9765/- (Nine thousand seven hundred sixty five)  to words extended warranty and Rs. 16000/- (Sixteen thousand) to words additional purchase of Evolution Kit. The depreciation calculated by the Opponent nos. 2 and 4 for the period of 2 to 3 and half year, when there was fault in the product in question, cannot be accepted. It is to be noted that the fault occurred in the product is occurred in short span and within the warranty period. Opponent nos. 2 and 4 were not in a position to remove the defect permanently as the product in question was stopped by the manufacturer. Moreover, the Complainant could not enjoy the product in question in true sense during the whole period from its purchase till the product in question was taken aback by Service Engineer of Opponent no. 2. The Complainant, however, would not be entitled to get refund of the amount of Rs. 9765/- (Nine thousand seven hundred sixty five) to words extended warranty as the claim is made during extended warranty period.

16.       In general Opponent no. 1 cannot avoid the responsibility to repair the product or replace the product or refund the product amount on the ground that he sold the packed product. Opponent no. 1 used to purchase various electronics products from different manufacturers in bulk quantities at trade with volume discounts and used to sell the products of manufacturers to the customers on order by order basis. Thus, Opponent no. 1 was acting as mediator or platform to connect the manufacturers with the potential customers.

17.       It is clear from the above discussion that the product in question cannot be repaired by replacing the related part as the production is stopped by the manufacturer-Opponent no. 2. It is, therefore, the joint or severally responsibility and liability of all Opponents to replace the same product or refund the amount paid for such product and the amount paid for related service. In this case it is clear that the manufacture of product has been stopped by Opponent no. 2. Therefore, the replacement of product cannot be directed as it would not be in the interest of parties. In such situation and considering the facts of the complaint, it would be proper to direct refund of purchase price without any depreciation, and for purchase of Evolution Kit.

18.       The Complainant made several complaints informing the defect in the product in question but no sincere efforts have been made to remove the actual defect in the product in question or replace the product of similar nature. But the product was not replaced. Now Opponent no. 2 has also stopped the production of the product in question. The Complainant could not enjoy the product in question though he has paid huge amount to purchase the product in question. It is clear case of harassment and mental agony. The Complainant has claimed the amount of Rs. 20000/-(Twenty thousand) to words harassment and mental agony. The Complainant is a senior citizen and was aged about 65 years when the complaint was presented in the year 2017. In such facts and circumstances there is no difficulty to accept the contention and demand of Rs. 20000/-(Twenty thousand) to words harassment and mental agony.

19.       The Complainant has claimed the cost of the complaint as Rs. 17500/-(Seventeen thousand five hundred) from the Opponents. In this regard considering the facts, we are quantifying the amount as Rs. 5000/-(Five thousand)

20.       The cumulative effect of the above discussion leads to the conclusion that the Complainant would be entitled to get refund of whole of amount of product in question, that is, Rs. 2, 58,375/-(Two Lac fifty eight thousand three hundred seventy five). At the same time the amount of Rs. 87, 847/-(Eight seven thousand eight hundred forty seven) received by the Complainant under protest has to be deducted from the amount of product in question. Thus, it comes to Rs. 1, 70, 528/- (One lac seventy thousand five hundred twenty eight), Rs. 16000/- (Sixteen thousand) to words purchase of Evolution Kit. The Evolution Kit is with the Complainant. As the product in question was taken aback by the Service Engineer the Evolution Kit is not of use of the Complainant. So, it would be proper to order to return the said product to the Opponent from whom it was purchased, that is from Opponent no. 2. The Complainant shall return the Evolution Kit by visiting or by sending the same by registered parcel or by Registered post to the Opponent no.2 from whom it was purchased. If the said Opponent fails to accept the said Kit, the Complainant would be at liberty to send the same to the said Opponent by Registered Post with Acknowledgement/Registered Parcel. He would also be entitled to get the amount of Rs. 20000/-(Twenty thousand) to words harassment and mental agony, and costs of Rs. 5000/- (Five thousand) to words costs of the proceedings.

21.       The Complainant has not claimed interest against the amount paid by him. Hence there would be no order in respect of interest.

22.       In the result, we proceed to allow the Complaint partly. Hence order.

                                                                                ORDER

The Complaint Case no. 34 of 2017 is partly allowed.

1. Opponent nos. 1 to 4 jointly or severally shall pay Rs.1, 70, 528/- (One lac seventy thousand five hundred twenty eight)to the Complainant to words refund of product in question within one month from today, Rs. 16000/- (Sixteen thousand) to words purchase price of Evolution Kit subject to return the same to the Opponent from whom it was purchased.

2. Opponent nos. 1 to 4 jointly or severally shall pay Rs. 20,000/- (Twenty thousand) to the Complainant to words harassment and mental agony.

3. The Complainant shall return the Evolution Kit by visiting the Opponent no. 2 from whom it was purchased. If the said Opponent fails to accept the said Kit, the Complainant would be at liberty to send the same to the said Opponent by Registered Post with Acknowledgement/Registered Parcel.

4. The Opponent nos. 1 to 4 jointly or severally shall pay Rs. 5000/- (Five thousand) to the Complainant to words the cost of the proceedings.

5. The Opponents nos. 1 to 4 shall bear their respective costs.

6. The copy of order be given to both the parties or it be sent to both parties as per Rule 18 (6) of Consumer Protection Regulations, 2005 and entry be taken with date on the last page of the order to that effect.

7. Certified copy be given to both the parties as per Rule 21 of Consumer Protection Regulations, 2005.

8. Copy of member set be returned to the Complainant.

Date : 27.08.2018

Place : Mumbai – 400 051.