FINAL ORDER

Samaresh Kumar Mitra, Member.

 The case of the complainant in brief is that she purchased a 32” Sony make Television from the O.P. No.1 on 6.11.2015 by paying Rs.27,000/- from O.P. No.1.  After three days the complainant found a scratch on the screen of the Television set.  Thereafter the complainant informed the matter to the O.P. No.1 and requested to replace the same.  But O.P. No.1 denied the allegation of the complainant.

The men of the O.P. No.1 visited the house of the complainant.  The complainant narrated everything to the men of the O.P. and prayed to replace the Television set.  But O.P. No.1 did not do the same.  Finding no other alternative the complainant filed this case before this Ld. Forum praying for a direction upon the O.Ps to replace the impugned T.V. set by a new one of same brand and same cost, a compensation of Rs.10,000/- and litigation cost of Rs.10,000/-.

The O.P. No.1 contested the case by filing written version denying the allegations as leveled against him and stated that the physical damage of the goods (T.V.) was done by the complainant and there was no scratch mark on the T.V. screen when the complainant purchased the said goods in good condition.  The O.P. No.1 also stated that this O.P. is only seller of the goods or dealer of the various item of the goods and O.P. No.1 is/has been selling the said goods on commission basis.  The packed goods are coming for selling the same to the purchaser.  So, O.P. No.1 are not allowed for opening the packed of goods for examine the purchased goods as the O.P. No.1 is the dealer or seller of the various company’s goods.

      The O.P. also stated that after complaint by the complainant, the O.P. generated the said complaint to the manufacturer.  The O.P. No.1 is not responsible to replace the said defective television by a new one.  The O.P. No.1 further stated that complainant filed this complaint before this Ld. Forum to earn and squeeze money by filing false statement against the O.P. No.1.

      The O.P. No.2 also contested this case by filing written version denying the entire allegation as leveled against him and stated that complainant purchased a Sony LCD bearing Model No.KLV-32R412C, having SR No.4671172 on 6.11.2015. The complainant used the T.V. with full satisfaction for eight months.  The complainant approached the service centre of the O.P. No.2 with a service request for first time on 26.7.2016 with the symptoms ‘scratch on panel’ in the TV set.  On examination by the Service Engineer of Service Centre, it was found that there was issue in the Panel which was defective due to external cause/mishandling for which the complainant is liable as there was no electrical failure in any part of the said TV.  This O.P. clearly mentioned in the service request that the set was physically damaged and hence the warranty terms and conditions were rendered void.  Thereafter service centre of this O.P. offered an estimate of Rs.10,949/- to the complainant vide Job Sheet No.J61779298, which was rejected by the complainant. The parties are bound by the warranty terms and conditions and cannot traverse beyond the same, held in Bharathi Knitting Co. Vs. DHL Worldwide Express Courier Division of Airfreight Ltd, AIR 1996 SC 2508. The answering OP No.2 assailed that it is well settled law that the onus to prove defect in the product lies in the person who alleges the same and it is held in Sushila Automobiles Pvt. Ltd. Vs. Birendra Narain Prasad [2010 STPL (CL)1252 NC] and have to prove by the complainant by way of cogent , credible and adequate evidence supported by an opinion of expert. In the instant case complainant has not produced any expert report to substantiate the allegation that the product in question has manufacturing defect.  The answering OP No.2 also assailed that it is his intent to serve its Customer and provide goods at the Premium Range and also to enable most impeccable after sales service and there is no intent to deny that. And the OP No.2 has no deficiency of service in providing service towards its consumer.

Complainant filed evidence on affidavit in which he assailed that she purchased the disputed TV set from the OP No.1 on 06.11.2015 and after 3 days from the date of purchase she noticed scratch on the TV set and immediately telephoned the matter to the OP No.1 but the OP No.1 checked the said TV set and verified and condemned the complainant for the said defect and turned down the prayer of the complainant to replace the defective one by a new one.  The complainant several times visited the shop of the OP with a plea to replace the defective TV set but her utterance came into all in vein as a result she compelled to prefer the recourse of this Forum praying for a direction upon the OP.

     OP No.1 filed evidence on affidavit in which he stated that he is not a manufacturer of the goods and he is only the dealer and seller of goods of various Companies. He has no willful latches and negligence as after getting the complaint he has forwarded the matter to the respective company.

   OP No2 filed evidence on affidavit in which she assailed that with the relentless commitment to quality, consistent dedication to customer satisfaction and unparalleled standards of service he/she is the benchmark for new technology, superior quality digital concepts and personalized service has ensured loyal customers and if any complainant come from the end of the customer then immediate after sale service is provided to the customers.             

Both sides file Written Notes of Argument which are taken into consideration for passing Final Order. Oral arguments advanced by the parties heard in full.

ISSUES/POINTS   FOR   CONSIDERATION

1). Whether the Complainants Smt. Dipti Roy is ‘Consumer’ of the Opposite Parties?

2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

3).Whether the OPs carried on unfair trade practice/rendered any deficiency in service towards the Complainant?

4).Whether the complainant proved his case against the opposite party, as alleged and whether the opposite party is liable for compensation to her?

DECISIONS WITH REASONS

 In the light of discussions herein above we find that the issues/points should be decided based on the above perspectives.

1. Whether the Complainant Smt. Dipti Roy is ‘Consumer’ of the Opposite Parties?

  From the materials on record it is transparent that the Complainant is “Consumer” as provided by the spirit of section 2(1)(d)(i) of the Consumer Protection Act,1986. As the complainant purchased a TV set from the opposite party No.1 and opposite party No.2 is the manufacturer of the impugned TV set so the complainant is the consumer of the OP as per the consumer protection Act, 1986. The Opposite party being service provider is entitled to provide service to this complainant.

(2).Whether this Forum has territorial/pecuniary jurisdiction to entertain and try the case?

 Both the complainant and opposite party are residents and/or carrying on business within the district of Hooghly. The complaint valued within Rs.20,00,000/- limit of this Forum. So, this Forum has territorial/pecuniary jurisdiction to entertain and try the case.

(3).Whether the Opposite Parties carried on Unfair Trade Practice/rendered any deficiency in service towards the Complainant?

 Complaint case is that she purchased the disputed TV set from the OP No.1 on 06.11.2015 and after 3 days from the date of purchase she noticed scratch on the TV set and immediately telephoned the matter to the OP No.1 but the OP No.1 checked the said TV set and verified and accused the complainant for the said defect and turned down the prayer of the complainant to replace the defective one by a new one.  The complainant several times visited the shop of the OP with a plea to replace the defective TV set but her utterance came into all in vein as a result she compelled to prefer the recourse of this Forum praying for a direction upon the OP.

OP No.1 in his evidence on affidavit stated that he is not a manufacturer of the goods and he is only the dealer and seller of goods of various Companies. He has no willful latches and negligence as after getting the complaint he has forwarded the matter to the respective company.

 OP No.2 in his written version as well as evidence on affidavit stated that complainant purchased a Sony LCD bearing Model No.KLV-32R412C, having SR No.4671172 on 6.11.2015. He used the T.V. set with full satisfaction for eight months.  The complainant approached the service centre of the O.P. No.2 with a service request for first time on 26.7.2016 with the symptoms ‘scratch on panel’ in the TV set.  On examination by the Service Engineer of Service Centre, it was found that there was issue in the Panel which was defective due to external cause/mishandling for which the complainant is liable as there was no electrical failure in any part of the said TV.  This O.P. clearly mentioned in the service request that the set was physically damaged and hence the warranty terms and conditions were rendered void.

 The purchase of the TV set is not disputed or denied by the opposite party. The moot question is that whether there was manufacturing defects in the said TV set or the complainant caused such defect while using the said set. In the complaint petition the complainant assailed that she noticed the said defect after 3 days of purchase and immediately informed the matter to the opposite party no.1 who on his turn inspected the TV set and opined that defect caused due to bad handling and it cannot be replaced by new one. The contention of the complainant is that the defect revealed within the warranty period but the opposite party willfully denied the service to this complainant which tantamount to deficiency of service. From the face of the record it appears that the defect revealed immediately after the purchase and the opposite party no.1 is well acquainted regarding such defect but tried to save his skin by shifting responsibility upon the complainant. He forwarded the matter to the manufacturing Company.  The said Company i.e. opposite party No.2 disputed the manufacturing defect and blamed the complainant that the defect caused due to bad handling for a period of 8 months.  The opposite party No.2 tried to evade his responsibility shifting the blame upon the complainant. This opposite party No.2 should show good gesture upon the complainant by settling the claim of the complainant as the occurrence took place within the warranty period. By not settling the claim the opposite party frustrated the myth of goodwill of the business.   

From the above discussion we may safely conclude that the complainant proved his case beyond reasonable doubt so the OP No.2 is under liability to replace the defective TV set by a new one.

4). Whether the complainant proved his case against the opposite party, as alleged and whether the opposite parties are liable for compensation to her?   

  As per the discussion made herein before, we have no hesitation to come in a conclusion that the Complainant has proved her case and the Opposite Party No.2 is liable to pay compensation for mental pain and agony of the complainant alongwith replacement of TV set of same brand.

ORDER

Hence, it is ordered that the complaint case being No.163 of 2016 be and the same is allowed on contest against the Opposite Party with a litigation cost of Rs.5000/- to be paid to the complainant by the OP no.2.

OP No. 2 is directed to replace the TV set by a new one of same brand, same features and same cost within 45 days from the date of this order. In default the OP No.2 is liable to return the cost of TV set alongwith interest @10% since the date of filing the complaint case till realization.

OP No.2 is further directed to pay a sum of Rs.10000/- as compensation for mental pain and agony of the complainant.

All the payments are to be made within 45 days from the date of this order.

At the event of failure to comply with the order the O.P. No. 2 will pay cost @ Rs. 50/- for each days delay if caused on expiry of the aforesaid 45 days by depositing the accrued amount if any, in the Consumer Legal Aid Account.

  Let a plain copy of this Order be supplied free of cost to the parties/their Ld. Advocates/Agents on record by hand under proper acknowledgement/ sent by ordinary Post for information & necessary action.

  Dictated and Corrected by me, Samaresh Kr. Mitra, Member.