Delhi

North East

CC/431/2015

Rajesh Kr. Sharma - Complainant(s)

Versus

M.P. Electronic - Opp.Party(s)

27 Apr 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 431/15

 

In the matter of:

 

	Shri Rajesh Kumar Sharma B-4/391 Maha laxmi Enclave, Karawal Nagar, Delhi 110094	Complainant
	Versus
1       2	M/s. M.P. Electronics 169, Mahalaxmi Vihar, Shiv Vihar Pulia, Karalwal Nagar Road, Delhi 110094   ONIDA Ltd. E-4, B-1, Mohan Cooperative Indl. Estate, Mathura Road, Delhi 110044	Opposite Parties

 

DATE OF INSTITUTION:         JUDGMENT RESERVED ON:               DATE OF DECISION      :

01.12.2015 18.04.2018 27.04.2018

 

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

Ravindra Shankar Nagar, Member

 

 

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. The case of the complainant is that he had purchased ONIDA LED TV bearing model no. O32DHR/13104/007863 vide cash memo / bill no. 711 dated 20.01.2015 for payment of Rs. 21,800/- from OP1 with one year comprehensive warranty from OP1, authorized dealer / seller of OP2 who was the manufacturer of said LED. The complainant has stated that the OP1 had undertaken to get the LED repaired free of charge at the time of selling it but OP1 sold an old model used LED which is unfair trade practice and deficiency of service on part of OP1. The complainant stated that after few months the said LED stopped functioning properly and there was no display on screen and the whole panel stopped working when the complainant lodged complaint with OP1 & OP2 on 18.08.2015 whereby, the OP2 “Home Care Centre” provided complaint no. 1508D776380228 to the complainant but nobody addressed the problem. The complainant again made complaint on 18.10.2015 to OP1 but the field service supervisor never visited the premises of complainant. After three days, however, one Mr. Yogender visited the complainant premises and carried out general inspection of said LED and told the complainant that due to some inherent problem with the body of LED, it would take time to  rectify the problem and would take the LED to care center. Thereafter, till next two months Care Centre didn’t provide any information about the LED to the complainant after which when the same was handed over to complainant , the same, being old one was giving trouble of voice clarity, less volume issue for which the complainant again had to call up customer care on 27.10.2015 when Shri Yogender came again to inspect the said LED and told the complainant that its mother board was not functional and therefore, it would take another week to rectify the said problem. The complainant had alleged that by means of breach of warranty, guarantee, agreement, duty, negligence, defective and malfunctioning  product, inability of repair  or replace the same and depriving the complainant of use of the LED has caused him trouble, harassment, mental agony and therefore, vide this present complaint the complainant has alleged deficiency in service and unfair trade practice against both the OPs and had prayed for directions by this Forum to the OPs to refund the amount of Rs. 21,800/- towards cost of LED TV with interest, Rs. 25,000/- as compensation for mental agony, harassment and damages suffered by complainant on account of deficiency in service and unfair trade practice and Rs. 10,000/- towards cost of litigation.
2. Notice was issued to both the OPs. However, written statement was filed on behalf of OP2 on 17.03.2016 and OP1 despite service on 18.12.2015 failed to appear and was proceeded against Ex parte on 17.03.2016.
3. In the written statement filed by OP2, the OP2 took the preliminary objection that the subject LED was purchased by the complainant on 20.01.2015 whereby the warranty period of the product was granted for one year for 20.01.2015 till 19.01.2016 and at the time of purchase the said LED was from all defects, faults or imperfection. The OP2 further stated that first complaint vide job no. 1508D776380228 dated 18.08.2015 where the penal of the said LED was found defective by service engineer, the set was taken on 20.08.2015 to service centre for replacement of panel and was installed at the house of the complainant on 14.09.2015 after replacement of panel in okay condition as against false averments of the complainant that the said LED was retained for two months at service centre of OP2. OP2 further highlighted clause 12 of terms and conditions whereby it was clearly stipulated that the company shall not be liable or deemed to under default or failure in performance when such failure or default arises directly or indirectly from causes beyond reasonable control including delaying service due to non-availability of any component, parts, and/ or accessories and / or if the company is prevented from performing its obligations under this contract. The OP further stated that the main mother board of that particular model was not available at the OP store as well as in the market which delay was well cover under this clause. The OP further took the objection that on the 2^nd complaint vide job no. 1510D776380287 dated 26.10.2015 registered by Ms. Shivani Sharma, relative of complainant, the service engineer of OP visited the premises of complainant on 27.10.2015 but was not allowed to inspect and cured the defect and refused to repair the TV set by the complainant and insistent to replace the TV set by new one and the same was remarked and signed by Ms. Shivani Sharma. Further, the OP urged that it has been held number of judgments by Apex court that “If the defect can be removed by removing one part, it is not necessary to replace the whole unit, even in case of manufacturing defect” and therefore, the present complaint was liable to be dismissed as the complainant himself refused the service engineer to repair the LED TV by insisting replacement of LED TV. The OP2 further took the defence that the electronic product is a sensitive product and needs to be handled very carefully and it was responsibility of the complainant to take adequate care of the electronic product purchased and handle the product as per instructions given to him. OP2 attached the job card dated 20.08.2015, terms & conditions and job card dated 27.10.2015 alongwith written statement in support of its defence.
4. Complainant stated that he did not wish to file rejoinder in rebuttal to the objections taken by Op2 in its written statement filed and the same was recorded vide order dated 21.04.2016. Evidence by way of affidavit was filed by both complainant as well as OP2 exhibiting relevant documents in support of case / defence.
5. Written arguments were filed by both the parties, reiterating their respective grievance / defence in the present complaint.   The complainant argued that vide second complaint on 26.10.2015, the service engineer of OP2, even before inspecting the subject LED TV had assumed that the problem might be as registered before that of tuner card as per para 7 of preliminary objection taken by OP2 in its written statement. The complainant denied anybody on his behalf having signed the job card on the said date under the head “I want to replace my LED so I refused to repair it” and rather submitted on the contrary that no signature of complainant was obtained by OP on the said job card.
6. We have heard the rival contentions of complainant and OP2 and thoroughly perused the documents placed on record by both the parties. It is not in dispute that the subject LED was purchased by complainant from OP1 manufactured by OP2 and was under warranty when the first complaint with respect to the panel was lodged by the complainant on 18.08.2015 when the said panel was replaced by the OP2 on 14.09.2015. However, the dispute, to our opinion veers more around the 2^nd complaint dated 26.10.2015 since it was on this day that allegedly complainant refused to get the subject LED repaired from OP2 and asked for replacement as per the version of OP2 as per Annexure R3 placed on record by OP2 alongwith its written statement. During the course of arguments, this Forum had put a pointed question to the complainant as to why the complainant had not countered the allegation of OP2 in its written statement that one Ms. Shivani Sharma relative of complainant had written and signed the jobcard on 26.10.2015 with remark ‘I want to replace my LED so I refused to repair it’ to which the complainant gave no satisfactory / explanation except plain denial of having written or signed such a statement and was rather contesting the discrepancy of signature of service engineer of OP2 namely Joginder on annexure R1 at two places on dated 20.08.2015 and 14.09.2015 and on R3 filed with the written statement of OP2 and alleged that probably the act of forgery of signature was done by Joginder himself. We are not convinced by such evasive denial since this was a very crucial aspect in the entire case and not only a proper rebuttal by way of rejoinder but also a forensic signature (FSL) verification should have been sought with respect to the signature specimen on the jobcard dated 26.10.2015 by the complainant which the complainant failed to initiate or move an appropriate application to that effect in the entire course of the pendency of the present complaint which balance on convenience does not tilt in favour of the complainant and he cannot be allowed to take advantage of his own act of commission/omission by denying access to the officials of OP2 to inspect and repair the subject LED and instead asked for replacement thereof. Therefore, after appreciating the documentary evidence and arguments in the present case, we are of the opinion that in the given scenario, the complainant is entitled to refund of the amount of the cost of the LED. In catena of judgments passed by the Hon’ble Apex Court, it has been held that if the defect can be removed by removing one part, it is not necessary to replace the whole unit, even case of manufacturing defect. The Hon’ble NCDRC in case of Shiv Prasad Paper Industries Vs Senior Machinery Company I (2006) CPJ 92 (NC) held that “It is by now settled law that an equipment or machinery cannot be order to be replaced if it can be repaired” Therefore, in light of the settled law on the issue, we direct the OP1 and OP2 jointly and severally to repair the subject LED to the satisfaction of the complainant within 30 days of receipt of this order.
7.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
8.   File be consigned to record room.
9.   Announced on 27.04.2018 

 

(N.K. Sharma)      President

(Sonica Mehrotra) Member

(Ravindra Shankar Nagar) Member