Final Order/Judgment
Debasis Bhattacharya:- Presiding Member
Being aggrieved and dissatisfied with treatment extended by the opposite parties as mentioned above in the matter of purchase of a television set at a consideration value of Rs.18,200/- and the post sales services thereof, the instant case has been filed by the complainant on 10.07.20, u/s 12 of the Consumer Protection Act 1986 involving three opposite parties viz. the retailer having its outlet in Chinsurah, Hooghly, West Bengal and the manufacturer having its Head Office and Corporate Office in Aurangabad, Maharastra and Gurgaon, Haryana respectively.
Brief facts of the case as presented by the complainant, in a nutshell are as follows.
The complainant purchased a Videocon make LED Television set (model no. LEDTVVJU32HH23CAH 110817110163505432) from the opposite party no.1 at the cost of Rs.18,200/- vide invoice no. K5124/1718/02979 dtd. 20.10.17 through the financer Bajaj Finance Ltd.
However, reportedly, the complainant, six months after purchase of the Television set, started facing problems related to sudden appearance and disappearance of color in the screen of the TV. Initially the same was informed to the retailer i.e. opposite party no.1 instantaneously and on being informed, OP 1 suggested the complainant to wait for a few days and assured that the problem would go away automatically.
However on 28.08.18, the TV screen stopped displaying any color and the complainant made immediate contact over phone with the OP 1 and the said OP providing a phone number advised the complainant to lodge his complaint. Accordingly a complaint was lodged against docket No. Kol 3008180012.
On 02.01.19 a technician visited the complainant’s place and on examination of the set detected that the ‘panel’ of the TV set was damaged and required a replacement. The complainant was advised to approach to the OP 1 for the said replacement.
Accordingly contact was made with the OP 1 and reportedly OP 1 made assurances of repairing of the said ‘Panel’ failing which refund of the consideration price.
When, even after waiting for a substantial period there was no fulfilling of the commitment on the OP 1’s part, the complainant approached to the concerned office of the Consumer Affairs and Fair Business Practice for intervention in the matter and redressal. However, even on being summoned for the purpose of mediation and mutual settlement, the opposite parties did not appear before the said authority.
Considering the entire developments as negligent act on the OP’s part, deficiency of service, and unfair trade practice causing pain, agony, anxiety and harassment, the complainant filed the instant complaint petition before this Commission with a prayer to impose direction upon the opposite parties to either replace the defective TV set by a new one or in default to refund the entire consideration money of Rs.18,200/- with interest @18% per annum. Besides, the complainant further prays for imposing direction upon the opposite parties to pay a sum of Rs.1,00,000/- towards compensation for causing mental pain, agony, anxiety and harassment and such other relief to which the complainant is entitled under law.
The complainant has submitted photocopies of the relevant tax invoice related to the purchase of the TV set, complaint lodged with the Assistant Director, Consumer Affairs and FBP, Hooghly Regional Office, copy of the communication made by the said Assistant Director to the Opposite Party 1 and legal notices sent to all the opposite parties.
The case eventually ran ex parte against OP 2 and 3. OP1 contested the case by filing written version and Brief Notes of Argument.
Issues for consideration
- Whether the complainant is the consumer as defined in the Consumer Protection Act.
- Whether this Commission has territorial/pecuniary jurisdiction to entertain the instant petition.
- Whether there is any deficiency of service on the part of the opposite party.
- Whether the complainant is entitled to get any relief.
Decision with reason
Issue No. 1
In view of the above discussion and on examination of available records it transpires that the complainant is a consumer as far as the provisions laid down under Section 2(1)(d)(ii) of the Consumer Protection Act 1986 are concerned.
Issue No. 2
Both the complainant and the opposite party no.1 are resident/having their office address within the district of Hooghly.
The claim preferred by the complainant does not exceed the limit of Rs.20,00,000/-
Thus, this Commission has territorial as well as pecuniary jurisdiction to proceed in the instant case.
Issue No. 3 and 4
For the sake of convenience, these mutually inter-related issues are taken together. Materials on records viz. the complaint petition, written versions, evidence on affidavit and brief notes on argument filed by the complainant, and opposite party no.1 and other connected records are perused.
Now the opposite party no.1 in his written version, denying all the allegations leveled against them, decorates the complaint petition with several adjectives like ‘not maintainable’, ‘malafide’, ‘speculative’ ‘vexatious’, ‘harassing’, ‘concocted’ etc. But no specific reason is assigned for such presumptions. Simultaneously, OP 1 submits before this Commission that ‘for goodwill they always tried and made service to the complainant/purchaser’ during the warranty period. Here the question automatically arises that if the complaint is a ‘concocted story’ why the OP1 took the trouble of extending service to the complainant. The opposite party No.1 puts stress on the issue that it is the manufacturer who can provide relief as per warranty clause and the opposite party no.1 being a retailer had no role to play. Thus, onus lies upon the manufacturer to take action in this regard. `
Materials on records are perused.
It is apparent from the records viz. the submissions of the complainant as well as the opposite party No.1 and the circumstantial evidences, that the Television set purchased by the complainant suffered from technical defect and in spite of substantial persuasion and intervention by the concerned authority of the Consumer Affairs Department, the problem remained unresolved. The proposal for refund or replacement was cared a fig by the opposite parties. That the Television set was defective in the matter of colour display issue is apparent from the extant records.
The proposition extended by the opposite party no.1 that they are only dealer/reseller and not manufacturer of the disputed item and so they are not supposed to provide any remedial measure in the instant matter sounds utterly disappointing. In this way OP 1 tried to pass the buck to the manufacturer. Being somewhat an agent/broker/middleman of the manufacturer, a reseller shows enormous zeal in disposing an item by way of sale. But in the matter of post-sales services and when technical defect crops up in the purchased product, the same reseller become indifferent and shows reluctance to offer services.
Hon’ble State Commission West Bengal in the case of Great Eastern appliances Pvt. Ltd. vs Bithika Bala on 8.3.2018 observed that a manufacturing defect is a problem that becomes part of the product while the same is in the making. The two most common causes of manufacturing defects are poor quality materials and carelessness in putting the product together or shoddy workmanship. A manufacturing defect is one that could be gotten rid of altogether, if the product were made with better quality materials or was made by a more careful and experienced worker. In Jose Philip Mampillil vs. Premier Automobiles ltd. and another, AIR (2004) SC 1529 the Hon’ble Supreme Court made it clear that the dealer/ agent would be as liable as the manufacturer. If it was legally possible, the dealer could later recover that money from the manufacturer, but as far as the consumer was concerned both were responsible, the Hon’ble Court observed. In case of M. Subba Reddy vs. Avula Venkata Reddy (R.P. No. 3282/2003, decided on 22.3.2007) the Hon’ble National Commission has been pleased to hold that since the dealer sales the product to a customer, complaint is definitely maintainable against it. If the seller has any grievance it is free to draw appropriate legal proceedings against the manufacturer to realize the awarded amount from the manufacturer.
In view of the above and on perusal of the case record and documents, this Commission is of the opinion that the Television Set purchased by the complainant from the opposite party no.1 was defective and neither it was repaired nor replaced. Resultantly the complainant suffered a lot and unfortunately the opposite parties showed utter indifference towards the sufferings of the complainant. Deficiency of service on the opposite parties’ part was apparent.
Hence, it is
ordered
that the complaint case bearing no.26/2020 be and the same is partly allowed on contest.
The opposite party 1 is hereby directed either to replace the defective Television set by a new one of the same model or to refund back Rs.18,200/- (purchase price of the Television Set) within 45 (forty five) days from the date of this order with interest @9% for the period from the first date of lodging the complaint to the date of payment of the actual purchase price of the Television set. The Commission further directs the opposite parties to pay the complainant Rs.25000/- as compensation for mental agony and harassment and Rs.10000/- towards litigation cost. The opposite party 1 will be liable to comply with this order in co-ordination with the other opposite parties. In the event of failure to comply with this order the opposite parties will pay cost of Rs.10,000/- by depositing the same in the Consumer Legal Aid Account.
Let a plain copy of this order be supplied free of cost to the parties or their authorized Advocates/Agents on record, by hand against proper acknowledgement or sent by ordinary post for information and necessary action.
The final order will be available in the respective website i.e. www.confonet.nic.in
