DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016.

                                                                                                 Case No.621/2012       

          Geetha Ramesh

          B-112, Belvedere Towers

          DLF Phase-II,

          Gurgaon 122002

          Haryana.                                                             ..…   Complainant

Versus

1.     Furtados Music (India) Pvt. Ltd.

THROUGH

The Managing Director

B-14, Basement ,

Lajpat Nagar-II

            New Delhi-110024

Also at :

 303/304 Sangeet Plaza,

 Marol Maroshi Road

 Andheri( East)

 Mumbai-400059.

2.      Yamaha Music India Pvt. Ld.

           THORUGH 

           Managing Director

           Spazedge  building, ‘Ground Floor,   …….  Given UP

           Tower A, Sector 47,

           Gurgaon- Sohna Road, Gurgaon,

           Haryana, India                                              

3.       Blue Dart Express Ltd.

  Head Office : Blue Dart Centre,

  Near Hilton Hotel,

  Andheri East ,

  Mumbai-400099                                         …..Opposite Parties

                                                Date of Institution  :  19.11.2012                                                  Date of Order        :  21.01.2017

Coram:

Sh. N.K. Goel, President

Ms. Naina Bakshi, Member

O R D E R

The case of the complainants, in nutshell, is that one professional  digital Piano  brand “ Yamaha-CVP 503 PE” had been  purchased by them in Mumbai from OP  for an amount  of Rs.2.15 Lakhs in the month of April, 2010 for their 11yrs. old son who  had been playing   piano for 7 yrs and who  had been gifted with the talent  of   “Playing Piano by Ears” without  any formal  musical  coaching with a view to further  nurture  his musical skill in a right  direction in Mumbai. For employment reasons the complainants moved from Mumbai to Gurgaon  in January, 2012 and their family shifted to Gurgaon  in May 2012. Since the digital piano  was a delicate and sensitive instrument it was to be shipped and  transported only by the specialists in the piano field; that at the time of purchase of the said piano, it enjoyed the  manufacturer’s  warranty from ‘Yahama’ for a period of one year  from the date of purchase and Furtados  issued  the warranty – ‘the Furtados Assurance’  for a period of five years commencing from 15^th April 2010.  OP 1 deals in musical instruments, shipping /transport of the same from one place to another across the country; that the complainants had a very good rapport with OP 1  in as much as the  piano in question  had been  purchased from OP 1 and the complainants  had been frequently visiting  the shop of OP 1.  Keeping  these facts in mind the complainants  booked the digital piano in question  for shipping from  Mumbai to Gurgaon against  charges of Rs. 22,000/- on 21.06.2012 through OP 1 .The piano was not packed properly (as detailed in the complaint) and the same was delivered  to the complainants  by the OP 3 Courier Company  in Gurgaon on 14.07.2012; that it was opened  by the Delhi  officials of OP 1 for assembling the same but the complainants  were shocked to see  external damages i.e. complete dislocation  of panel  which houses the piano keys, scratches on many places, chipped off arms of polished ebony surface of Piano. Correspondence ensued between the complainants and OP 1 and through email dated 13.08.2012 one             Mr Philip Rodrigues  of OP 1 called up the complainants and  admitted the lapse on  the part of  OP 1 and  regretted for the damages, assured to carry out the repairs, get the same done by Yamaha India (OP 2) and to bring  the piano  near to the new  condition.  The request of the complainants for giving substitute alternative piano during the specified period of preparation for the practice purpose of their son was rejected and OP 1 offered their son to practice at their show room  at Delhi which is 40 km. from the residence of the  complainants.  Some alleged imported spares of the Piano (bearing assembly, side boards only)  were   replaced and the  employee of OP 2 carried out  the partial  repairing of Piano  on 21.09.2012 but the employee of OP 2 also confirmed that the  extent of damage was severe than expected and beyond his  earlier estimate  and these spares he brought  would not suffice in restoring  to its fully functional state but thereafter nothing   was done.   OP 1’s admission for mis-handling of the piano through e mails proves their  gross negligence The Piano in question is not in fully functional condition and  trauma has been  caused to their son                              ( detailed in para 13 of the complaint ). Hence, the complainants have filed the present complaint  with following prayers:-

        “1.  Direct the respondents  to replace the subject piano with a new

               Yamaha CVP 503 PE Piano or cash equivalent;.

2.  Direct  the Respondents  to  pay Rs. 5,00,000/-( Rupees Five Lacs Only) for the continuing harassment and mental agony caused  to the complainant and his son and wife;
3. Direct the Respondents  to pay Rs. 30,000/- towards the cost of litigation and other expenses”

Here, we feel it necessary to mention that the complainants gave

up OP 2 as an unnecessary party on 22.03.2013.

In  the reply OP No.1 has inter-alia stated  as here under:-

“It is most respectfully submitted that the Complainant is not the “consumer” defined under section 2 of the Consumer Protection Act, 1986. The respondent had simply assisted the Complainant for shipment of a Piano from Mumbai to Gurgaon as a goodwill gesture considering the friendly relations between the Complainant and the Respondent No. 1 officials. It is submitted that Complainant has purchased the said piano from the answering Respondent in April, 2010 and also the son of the Complainant was coached in the music school of the Respondent No. 1. During the regular interactions between the Complainant & son of the Complainant with the officials of the answering Respondent, they developed friendly relations with them.  When the said Piano was required to be shipped  from Mumbai to Gurgaon , the Complainant approached the Respondent No. 1  through its official namely Mr. Caeron Mmendes and requested him  to assist in a friendly manner in order to coordinate with the courier company i.e. Respondent No. 3 for the purpose of shipment  of the same .  The said request of the Complainant was accepted by Respondent No. 1 out of love and attraction towards the son of the Complainant.  It s pertinent to note that no monetary consideration , charges , fees etc.  was agreed to be paid by the Complainant  in favour of the respondent No. 1 against the said  friendly assistance.  Therefore, there existed no relation of              “Consumer-service provider” between the Complainant & the answering Respondent.  It is submitted that the answering Respondent is not engaged in to the business of transportation, shipment etc. of music instruments.  The Complainant is put to strict  proof of the fact that the answering Respondent is engaged into the business of transportation, shipment etc. of music instruments.  There is no agreement, contract etc either orally or in writing executed between the Complainant and the Respondent for shipment of the said Piano against any kind of consideration whatsoever. That while accepting the request of the Complainant, the answering Respondent made it clear to the Complainant  that the shipping charges were to be borne by the Complainant and the same were to be directly payable to the Respondent  No. 3  at the time of delivery of the said Piano  at Gurgoan’s residence of the Complainant by the officials of Respondent No.3   It is further submitted that no commission  or any other monetary benefit was agreed to be paid by the Respondent No. 3 in favour of the answering Respondent.  Infact, the Complainant (beneficiary of services of respondent No. 3) had authorized the answering Respondent to avail the services of Respondent no. 3 on their behalf who just acted as agent of the Complainant on their instructions in booking the consignment with Respondent No. 3 and therefore, the answering Respondent himself is a ‘Consumer’ as defined u/s 2 of the Consumer Protection Act,1986 in relation to the services of Respondent No. 3.”

It is stated that OP 1 actually and voluntarily is located and carries on business /  works for gain at Mumbai  and there is no branch office of OP No. 1 at New Delhi except a showroom . It is stated that as per the terms and conditions laid down in the Furtados Assurance,OP No. 1 is not responsible for shipping damages of any kind and it was also  informed to the complainants that OP No.1 was not liable for any irregularities in service in the case of warranty depending on a third party.  While admitting that some parts of the piano in question were damaged during shipping process by OP No.3 OP 1 has stated that OP No.1 promptly took steps to execute the repair work thinking it appropriate to incur reasonable expanses for buying spare parts and carrying necessary repair works including technician’s fee etc. in order to repair the piano in its almost new condition. But due to the greed for a new piano the complainants have themselves rashly and negligently used the said piano, thereby causing more damages to the same after the same was inspected by the professional technician of OP No. 2 in order to increase the cost of repairing and thereby pressurising OP No.1 to replace the old Piano with the new one. It is specifically denied that the said piano is not fully functional.  It is submitted that as on date the  said piano  is  in a fine working condition and working perfectly. It is prayed  that the complaint be dismissed. 

Since OP No.2 has been given up as unnecessary party we do not want to deal with the reply to the complaint filed by OP No.2. 

In its reply OP No. 3 inter-alia stated that OP No.1 has booked shipment with OP No.3 vide AWBNo 5016524182 dated 9.07.2012 from Mumbai to be delivered to the consignee Ms Geetha Ramesh Kumar in Gurgoan and the shipment was delivered in good condition and was received by the consignee without any protest and remarks on the delivery sheet at the time of taking the delivery of the shipment.  It is stated that in absence of any privity of contract between OP No. 3 and the complainants,  complaint against OP No.3 is not maintainable.

 Complainants have filed the rejoinder to the reply of OP No.1 wherein they have reiterated the averments made in the complaint.

Complainant Sh. Ramesh K. filed his affidavit in evidence .On the other hand, affidavit of Sh.  Howdeijam Edison Singh  has been filed on behalf of OP No. 1 and affidavit  of Sh. Rishi Raj Srivastav, Manager, Legal and Contract on behalf of OP No. 3.

 During the pendency of the complaint complainant Sh. Ramesh K. died and his name has been deleted from the array of the parties vide order dated 19.02.2016. 

Written arguments have been filed  on behalf of the parties .  We have also heard the Counsel for the Complainant and Counsel for OP No. 1 and have also carefully gone through the records.

The onus to prove that the piano in question had been booked by the complainants for transportation and shipment from Mumbai to Gurgaon through OP No. 1 against a consideration paid or to be paid by the Complainants was on the complaints.  However, we have no hesitation in saying that the complainants have failed to file even a single document in this regard.  The submission of OP 1 is that it was made clear to the complainants that the shipping charges were to be borne by the complainants and the same were to be paid directly by the complainants to OP 3 at the time of the delivery of the piano in question. The Complainants have not even led any evidence which may remottedly show that the Complainants had agreed to pay Rs. 22,000/- to OP No. 1 towards charges for transportation and shipment of the Piano in question from Mumbai to Gurgaon.  If we go through the rejoinder to the reply of the OP No. 1 we find that the case of the complainants is that the shipping charges were agreed to be paid directly by the Complainants  to OP No. 1 (which were included  in the consideration of Rs. 22,000/-). However, they have not filed any cash memo or any receipt  to show that they had ever paid the said amount of Rs. 22,000/- to OP No. 1 either before the booking of shipment or after delivery of the shipment to their house in Gurgaon. In the  absence of any such proof being filed  on the record we are unable to agree with the  contention raised  by the Complainants that the OP No. 1 had booked the piano in question for transport and shipment through OP No. 3 against monetary consideration.  Reliance placed by the Complainants  on the copy of the delivery challan is of no help  to them  because it does not specify the amount of shipment charges. Therefore in the facts and circumstances of the case it appears to be more plausible that the OP No. 1 had agreed to transport the piano in question from Mumbai to Gurgaon due to love and affection towards the son of the complainants and not against any monetary consideration.

The case of the Complainants is  that till date  OP No. 1 has only repaired   some parts of outside body of the piano  and did not  repair and never even offered to repair the piano for its technical fault (Para 8 of the rejoinder on merits).  The Complainants have filed a  certificate dated 09.05.2013 stated to be given by One World College of Music, DLF PH-IV, Gurgaon-122002 to prove that the  piano in question is still not working properly and still has  certain technical faults. As submitted on behalf of the OP No. 1  the said certificate is liable to be discarded firstly because the same does not  state the names of two senior piano faculty members  who had examined the piano in question in the said college and secondly  because no document has been  placed to show  that  the said college of music is authorised  to give any such  opinion/ certificate  on the request of a particular person  for tendering it before the District Consumer Forum( as recorded in the certificate).  Therefore,  we do not place  any reliance on the said certificate.

 Admittedly OP No. 1 had issued the warranty – Furtados Assurance for a period of 5 yrs. on the piano in question  commencing  from 15.04.2010.  There is evidence on the record that certain defects as pointed in the complaint had occurred in the piano in question between 21.06.2012 to 13.07.2012 during its transportation from  Mumbai to Gurgaon.  The submission of the OP No.1 is  that  under the terms and conditions of the said Furtados Assurance , OP No. 1 is not responsible for shipping damages of any kind and the OP NO. 1 is also not liable for any irregularity in service in the case of warranty is depending on third party. According to the Complainants and OP No.1  copy of the said  Furtados Assurance is exhibit B.   The copy of the Furtados Assurance has been placed on the file as annexure ‘B’ and  runs into  two pages.  We mark the two pages as mark ‘A’ and mark ‘AA’ for the purposes of proper identification. The terms and conditions inter-alia provide that the warranty will not apply if there is  shipping damages of any kind.

Thus, the contention  of OP No. 1  that  the  OP No 1  has no liability  to carry out the repairs in the piano in question  in  view of the said terms  contained  the said Furtados Assurance  carries substantial  weight and  has to be upheld .  Therefore,  in  our considered view, OP  NO. 1 did not have any legal obligation to repair the piano in question to or carry out the repairs which had been caused during its transportation/ shipping from Mumbai to Gurgaon.

In view of the above discussion we are of the considered opinion  that the Complainants have  failed to prove  any deficiency  in service  on the part of OP No. 1.

No allegations of any kind which can make out a case of   deficiency in service are made against the OP No. 3.  Moreover in the   copy of the  receipt  issued  by OP No. 3  annexure ‘C’ (which  is  not  legible enough) the name  of  the sender of the  article  is mentioned as Furtados Music (India) Pvt. Ltd. and the name of the consignee as Ms Geetha Ramesh (One of the complainants).  Therefore, in our considered opinion, there was no direct legal contract between the Complainants and the OP No. 3 so as to bind the OP NO.3 with its   legal liability to pay the damage charges to the complainants.

In view of the above discussion we do not find any merit in the complaint and dismiss it with no order as to costs.

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations.  Thereafter file be consigned to record room.

Announced on   21.01.17.