SMT. MOLYKUTTY MATHEW : MEMBER
This is a complaint filed by the complainant U/S 35 of Consumer Protection Act 2019 for an order directing the opposite parties to pay Rs. 1,00,000/- as compensation for mental agony and cost of proceedings to the complainant for the deficiency of service and unfair trade practice on the part of opposite parties.
The case of the complainant in brief
The complainant had purchased a Kodak 7Xpro Series 80 Cm (32 inch) HD Ready LED Smart Android TV for an amount of Rs.12,999/- from OP No.2 dated 18/11/2021 online through OP No.1 and delivered the complainant on 19/11/2021. At the time of purchasing the TV the complainant also paid Rs.1199/- to OP No.2 as the complete TV protection (3 years) warranty also. After the purchase of 2 years the TV became defective and the panel is not working. Then the complainant informed the matter to OP No.3. But the OP3’s are not ready to cure the defect of the TV. The complainant also stated that TV problem arise some family problem in her house also. She also send whats app message to OP’s. But no reply received by the complainant. The act of OP’s the complainant caused much mental agony and financial loss. So there is deficiency of service and unfair trade practice on the part of OPs. Hence the complaint.
After filing this complaint notice issued to all OPs. After receiving notice OPs 1 and 3 appeared before the commission and filed their written version. OP 2 received the notice and not appeared before the commission and OP No.2 is called absent and set ex-parte. OP No.1 contended that he is only an online market place to the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted. The return or refund are offered and provided by the seller of the product sold on OP No.1’s plat form. The seller is responsible of the delivery of goods to the customers, customer satisfaction and post sales. So the OP No.1 is being merely an online intermediary cannot be held liable for alleged grievance of the complainant and there is no deficiency of service on the part of OP No.1. Then the complaint may be dismissed. OP No.3 contended that when the complainant raised her grievance, the OP No.3 found that the product serial number in symptom video and products’ serial number in the pictures shared by the complainant are mismatching. The OP No.3 rejected the request of the complainant and requested the complainant to register the complaint with correct serial number. But the complainant not produce the correct serial number. So there is no deficiency of service on the part of OP No.3. Hence the complaint is dismissed.
On the basis of the rival contentions by the pleadings the following issues were framed for considerations.
- Whether there is any deficiency of service on the part of OPs?
- Whether the complainant is entitled for any relief?
- Relief and cost?
The evidence consists of the oral testimony of Pw1 and Ext. A1 and A3 marked. On OPs’ side no oral or documentary evidence. OP No.1 and 3 filed their written argument note also.
Issue No.1
The complainant adduced evidence before the commission by submitting her chief affidavit in lieu of her chief examination to the tune of the pleadings in the complaint and denying the contentions in the version. She was cross examined by Pw1 by OP No.1 and 3. According to the complainant 3 documents produced and marked as A1 to A3. Ext.A1 is the tax invoice Kodak 7xPro series 80 Cm (32 inch) HD Ready led smart Android TV for an amount of Rs.12,999/- dated 18/11/2021 and delivered to the complainant on 19/11/2021. Ext.A2 is the complete TV protection (3 years). Then after 2 years of purchase the TV became defective and panel issue started. As per Ext.A2 the complete TV protection for 3 years. So the OP’s are liable to cure the defects in the warranty period. The OP produced one Hon’ble Supreme court decision is Ravaneet singh Bagga VKLM Royal Dutch Air lines and Anr.Manu/SC/0707/1999 (2000) 1 SCC66 regarding the burden of proving the deficiency in service is up on the person who alleges it. But in Ext.A3 is the whats app message send by complainant to OP regarding the issue about the LED TV. But the OPs failed to cure the defects within the warranty period. So the OPs are directly bound to redressal the grievances caused to the complainant. So the act of OPs the complainant caused much mental agony and financial loss. So there is deficiency of service and unfair trade practice on the part of OPs. Hence the issue No.1 found in favour of the complainant and answered accordingly.
Issue No.2 and 3
As discussed above the OPs are not ready to replace the Android LED TV within the warranty period. The complainant produced Ext.A1, A2 and A3 it clearly shows that the TV is having panel issues. Therefore we hold that OPs 1 to 3 are jointly and severally liable to refund the value of TV for Rs.12,999/- plus complete TV protection value Rs.1199/- to the complainant along with Rs.5,000/- as compensation for mental agony caused to the complainant and Rs.3,000/- as litigation cost. Thus the issue No. 2 and 3 are also accordingly answered.
In the result the complaint is allowed in part directing the opposite parties 1 to 3 are jointly and severally liable to pay the value of TV for an amount of Rs.12,999/- and complete TV protection value Rs.1,199/-(Rs.14,198) to the complainant along with Rs.5,000/- as compensation for mental agony caused to the complainant and Rs.3,000/- as litigation cost within 30 days of receipt of this order. In default the amount of Rs.14,198/- carries 12% interest per annum from the date of order till realization. If opposite parties are1 to 3 fails to comply the order the complainant is at liberty to execute the order as per the provision of Consumer Protection Act 2019. After the said proceedings the opposite parties are at liberty to take back the TV from the complainant.
Exhibits for complainant
A1- Tax invoice
A2- Tax invoice (Complete TV protection)
A3-Whats app message
Pw1-Complainant.
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
