Judgment & Order dt. 31.07.2017
Twice in a period less than one year, the TV of the complainant went to sleep, causing serious embarrassment to him and the members of his family and therefore, to get rid of such embarrassment, he has come up before this Forum with filing of the instant complaint u/s 12 of the C.P. Act 1986 praying for passing an order for replacement of the TV set payment of compensation as well as litigation cost against the OPs.
The facts leading to the filing of the instant case by the complainant may be epitomized as follows.
The complainant purchased one Samsung 23 inch LED Television (TV) Model No.UA23H4003ARLXL on 1.5.2016 from the OP-1 for Rs.14,500/- with coverage of warranty for 12 months from the date of purchase. In the month of June, 2016, the TV became totally dead. Then and then, OP-2 was informed by the complainant and one technician was also sent by the OP-2 for repairing of the TV set. The said technician replaced the panel of the TV with a new one about 22 days after getting the information from the complainant. The TV worked, thereafter, satisfactorily only for a few months and again it went to sleep on 7.4.2017. Intimation was given to the OPs on 8.4.2017. On 10.4.2017 the technician of OPs again came to the house of the complainant and found the panel of the TV was completely out of order. He gave out to the complainant, as goes the allegation of the complainant, that the defect is a manufacturing one and the same problem might have cropped up even after a change of panel of the TV set. Thereafter, several requests have been made to the OPs for getting the set repaired, but such requests fell flat upon
the OPs. Thereafter, having no other alternative open to him, the complainant has filed the instant case praying for passing an order by this Forum for replacement of the TV set with a new one with fresh warranty coverage, payment of compensation of Rs.20,000/- and Rs.10,000/- as litigation cost. Hence, the case.
OP Nos. 1 & 3 have not entered into appearance in this case, although the service of notice upon them is deemed to be made. The case proceeds ex parte against them. It is only the OP Nos.2 & 4 who have filed a joint written statement to contend inter alia therein that the Forum has no territorial jurisdiction qua OP-4, as the registered office of OP-4 is situated at New Delhi and no prior permission of the Forum has been taken by the complainant u/s 11(2)(b), C.P. Act, 1986. So, the case is not maintainable in law against the OP-4 for want of territorial jurisdiction of the Forum. It is further submitted therein that there is no technical report brought by the complainant to prove manufacturing defect of the TV set and therefore, the case deserves dismissal on that ground alone. The complainant is not, as goes the averment in the written statement, entitled to get any compensation as prayed for, because he sustained no loss due to alleged defect of the TV set.
It is further averred in written statement that the panel of the TV got damaged due to seepage of water and such kind of damage is not covered by the warranty and such damage can be repaired by the complainant subject to payment of cost by the complainant, even though the damage was caused within the period of warranty. The complainant did not pay cost of the repair and as such no repair has been done to the TV set of the
complainant. There is no deficiency in service on the part of OPs and, therefore, the complainant is not entitled to get the relief as prayed for.
Upon the averments of both the parties, following points are formulated for proper adjudication of the matter in dispute.
Points for determination:
- Is the case not maintainable against the OP-4 for want of territorial jurisdiction?
- Is there any defect in the TV set, which may be treated as manufacturing defect?
- Is the complainant entitled to get compensation and other reliefs as prayed for?
Evidence of the parties:
Both the parties have filed their documents, in support of respective versions of their case and those are kept in record.
DECISION WITH REASONS
Point No. 1:
OP No. 4 is the manufacturing company of the subject TV. It has been submitted in the written statement on his behalf that the registered office of the OP-4 is situated at New Delhi and therefore, this Forum has no territorial jurisdiction to entertain the case against the OP-4. The complaint should be dismissed u/s 11(2)(b), C.P. Act, 1986, as no prior permission for filing of the case against him, has been taken from the Forum by the complainant. This contention of OP-4 appears to be without any merits. The TV set was sold to the complainant by OP-1 within jurisdiction of this Forum; it developed defects within the jurisdiction of this Forum and also it was repaired by the OP-2 within the jurisdiction of this Forum. Cause of action is bundle of facts. Regard being had to these aspects, we are inclined to hold that the cause of action of this case has arisen within local jurisdiction of this Forum and therefore, the case is covered u/s 11(2)(c), C.P. Act, in stead of section 11(2)(b), C.P. Act, 1986. The case is quite maintainable against the OP-4 and other OPs.
Point No.1 is thus, disposed of in favour of the complainant.
Point Nos. 2 & 3:
Already heard the submissions of Ld. Lawyer appearing for both the parties. Perused the pleadings of the parties and the documents filed on behalf of them. Respectively gone through the rulings cited by the OPs in the written statement filed by them. Considered all these.
It is submitted by contesting OPs that the burden of establishing manufacturing defect of any goods lies upon the complainant and the complainant will have to discharge such burden by reliable evidence. No evidence whatsoever has been produced by the complainant to prove that there is manufacturing defect in the TV set and in absence of any such evidence, it is not proved that there is manufacturing defect in the TV set. It is further submitted on behalf of contesting OPs that the TV set cannot be replaced by a new one unless there is manufacturing defect in the TV set. The complainant has not been able to prove any kind of manufacturing defect in the TV set and therefore, the TV set cannot be replaced with a new one and it can only be repaired, as the defect arises within the warranty period. Ld. Lawyer appearing for the complainant has contended that the TV set is being subjected to defects again and again, putting the complainant to untold misery and harassment and that the TV set be, therefore, replaced with a new one.
In the context of argument and counter argument as advanced on behalf of the parties, it is to be seen whether the complainant has been able to prove any manufacturing defect in the subject TV set. It is undisputed fact that the TV set was sold by OP-1 to the complainant on 1.5.2016. Also undisputed is the fact that the said TV set developed defect twice within a span less than one year. First, it become totally dead in the month of June, 2016, i.e. within a month about of its purchase. It again developed same kind of defect and went totally out of order on 7.4.2017, i.e. 10 months after its first repair. All these facts are not at all disputed. At the first time of repair of the TV set there was no allegation of OPs that the water seeped into the TV set causing damage to its panel. Such allegation is raised by them at the time of second repairing. Be that as it may, the fact goes that the TV set has gone totally out of order twice within the period of almost one year for which the complainant has suffered a lot from both mental and physical harassment. Now the question arises whether such repeated defect in the TV set goes to prove initial discharge of burden which rests upon the complainant in respect of manufacturing defect. In this regard, we like to quote one observation of Delhi State Commission cited in ruling of Honble National Commission reported in (III) (2014) CPJ 132 (NC) (Tata Motors vs. Rajesh Tyagi & Anr.), wherein it has been held as follows-
7. We have also taken a view that onus shifts to the manufacturer to show that the vehicle does not suffer from manufacturing defect once complainant has proved and discharged the initial onus that the vehicle was defective vehicle on the basis of large number of job cards showing that vehicle was taken on many occasion for removing one defect or the other. Complainant has already suffered immensely and is a wronged person by having been sold a defective goods and to expect him to again incur expenses by obtaining expert opinion to show the vehicle suffers from manufacturing defect will be too much. Large number of visits to the workshop from the day of purchase of vehicle for removing some or other defects is sufficient to draw the inference that the vehicle is a defective vehicle. The circumstance of the vehicle having been taken for removal of defects within or after the period of warranty leaves no manner of doubt that the goods sold to the consumer is not only defective but also suffers from manufacturing defect.
If the defect continues for months together and years together and erupts time and again no other inference can be drawn than that the vehicle suffers from manufacturing defect as defects which are not of manufacturing nature can be rectified or removed without their recurrence or without giving any further inconvenience to the consumer.
It has been held by the Hon’ble State Commission in the above observation that the onus shifts to the manufacturer from the complainant, when the complainant succeeds to establish that the goods is being subjected to repeated defects, which are not curable by repairs. In the instant case, the complainant has been able to prove that the subject TV set has fallen prey to defect time and again and the OPs have not been able to repair the TV set in spite of their endeavour. In this circumstances, it seems to us that the complainant has been able to discharge his initial burden. The ball is now in the court of the manufacturer and it is manufacturer who will have to prove that the defect to which the TV set has been subjected has arisen due to seepage of water for negligence of the complainant. But, in this regard, there is no
evidence whatsoever on the record brought by the OPs. The OPs merely aver that the panel of the TV is destroyed by seepage of water and it is report of their technician. The OPs could have produced an independent technician before the Forum in order to prove that the defect arose really for seepage of water. In absence of such independent and cogent evidence, we feel constrained to hold that the OPs have not been able to discharge their burden in proving that the defect in the TV set arises due to seepage of water for negligence of the complainant. The fact of seepage of water into the TV set has remained altogether apocryphal.
The question a-begging an answer now is whether such repeated defects arising in the TV set can be treated as manufacturing defect. In this regard, one observation of the National Commission reported in the ruling cited above appears to be very much pertinent and it goes thus,
8. The basic question is whether this kind of situation about the vehicle as admitted in the reply to the show-cause notice can be categorised as manufacturing defect or not. In the strict technical terminology, this kind of situation may not lead to the conclusion that there is a manufacturing defect; but still, it goes without saying that whatever defect has been observed in the vehicle for which the complainant had to suffer the mental agony of taking the vehicle to the workshop so many times, has to be attended to in proper perspective. It is the bound duty of both the manufacturer and the dealer to attend to the said defect and make it a defect-free vehicle and if they are not in a position to do so, they should either refund the cost of the vehicle or provide a new vehicle to the consumer. We, therefore, agree with the
conclusion arrived at by the State Commission that whenever a brand new vehicle is sold to a consumer, there is an implied contract that the vehicle being sold does not suffer from and will not suffer from any kind of fault or imperfection or shortcoming in the quality, quantity, potency and standard which is required to be maintained.
9. It is further observed that the Consumer Protection Act, 1986 is a benevolent social legislation as held by the Hon’ble Apex Court in their judgments from time to time and is aimed at providing for better protection of the interest of the consumers as defined in the preamble to the Act itself. Given the facts at hand, the interests of the consumer in the present case can be protected only if he is provided a vehicle which is free from defects from all angles and he is not subjected to the technicalities of proving whether any manufacturing defect exists or not.
Coming to the facts of the instant case, it is found that a brand new TV set was sold to the complainant by the OP-1. So, there is an implied contract that the TV set will not suffer from any kind of fault or imperfection or shortcomings in the quality, potency and standard which are required to be maintained by the OPs. The OPs have not maintained that standard of TV set and therefore, such defects which are arising one after another within a small span of time will be treated as manufacturing defect. The Act i.e. the C.P. Act, 1986 is a benevolent social legislation; its main purpose is to protect the interest of the consumer. The interest of the consumer i.e. the complainant can be best protected only, if he is either provided with a new TV free from all defects or returned with consideration price of the TV set. A person purchases TV set for entertainment of himself and his
family members. TV set of the complainant has gone out of order and thus, the complainant and his family members have been deprived of the entertainment, which they could have enjoyed from the said set. The complainant had to knock twice at the door of the OP-2. All these have certainly caused mental and physical harassment and inconvenience to the complainant, which requires to be compensated by the OPs.
Upon what have been discussed above, it is found that the complainant has been able to prove his case and therefore, the case deserves to be allowed.
In the result, the case succeeds.
Hence, it is
O R D E R E D
that the complaint case be and the same is allowed on contest against the OP Nos.2 & 4 with costs, and ex parte against the OP Nos. 1 & 3 also with costs, which are quantified at Rs.2,000/- only.
The OPs are held to be jointly and severally liable to the complainant for replacement of the TV set of the complainant with a new one, or for refund of the consideration price of the TV set and also for payment of compensation to the complainant.
They i.e. OPs are directed to replace the TV set of the complainant with a new one free from all defects with adequate warranty coverage or to refund consideration price of Rs.14,500/- to the complainant and to make payment of 5,000/- as compensation and Rs.2,000/- as litigation costs as held earlier, within a month of this order, failing which the compensation amount and the consideration price will bear interest @ 10% p.a. until full realization thereof.
In case, the replacement of TV set or refund of consideration price is made to the complainant accordingly, the complainant will make over the old TV set to the OPs.
Let a copy of this order / judgment be supplied or sent free of cost to the parties concerned straightway.
