By Sri. MOHANDASAN.K, PRESIDENT
Complaint in short is as follows:
1. The complainant purchased a TV from the first opposite party on 31/07/2018 and he paid an amount of Rs. 67,198/- as cost of the product which includes extended warranty cost of Rs. 9,698/-. As per the extended warranty condition the TV has got warranty up to 30/07/2023.
2. The complainant submitted that within few months of use itself it appeared defect to the TV panel and on intimation to the opposite parties they turned to replace the panel of the TV. But even after that there was defect to the TV and so the appearance was not proper in the screen. Accordingly, on 11/10/2021 the complainant contacted the opposite party and informed the same. Then the representative of the opposite party came to the residence of the complainant and on examination it was revealed that the complaint is to panel of the TV. Thereafter though complainant contacted the third opposite party there was no proper response to address the grievance of the complaint from the opposite parties and they did not turn to comply the warranty conditions. The opposite parties informed the complainant that they are prepared to pay Rs. 11,000/- for the repairing or offered Rs. 22,000/- treating the total loss of the product. But the complaint was not prepared to accept the offer since it will be great loss to the complainant. But the third opposite party informed that they cannot do nothing more and directed the complainant to approach the appropriate legal authority.
3. The complainant submit that he paid an amount of Rs. 67,198/- as cost of the TV, but he could not use the same properly even at least for one year. The product was defective during the period and so the complainant and the family could not enjoy the product. The complainant submitted that he could not use the TV for the study purpose of the children. The complainant submitted that he cannot purchase a new TV for the cost offered by the opposite party. It is further submitted that the TV has got warranty of 2 years of the manufacturer, the second opposite party and the defect was caused during the warranty period of manufacturers itself. Hence the complainant submitted that the TV has got manufacturing defect and for the same the manufacturer is liable. The prayer of the complainant is to refund the cost of Rs. 67,198/- along with compensation of Rs. 1, 00,000/-and cost of Rs. 25,000/-. The complainant alleges deficiency in service and also unfair trade practice against opposite party.
4. On admission of the complaint notice was issued and on receipt of notice theopposite parties No.1,3 and 4 entered appearances and field version. The second opposite party filed version belated period and so they set exparte.
5. The first opposite party field version denying the entire averments and allegations in the complaint. The first opposite party submitted that the complaint is not maintainable against first opposite party and the complaint is filed on experimental basis.
6. The first opposite party denied the allegations that the complainant purchased the TV at the instigation of employees of first opposite party. It is submitted that the complainant approached the first opposite party to purchase that particular brand of TV. There is no practice to advice the consumers to purchase any product of any manufactures. The first opposite party selling products of different manufacturers and the consumers are at liberty to purchase products at their own pleasure. The opposite party denied that they received Rs. 67,198/- towards the cost and expenses of extended warranty, but the opposite party received only Rs. 57,500/- as the cost of the TV. It is further submitted that the complainant remitted the said amount after availing financial assistance from Bajaj finance. It is submitted that the complainant availed extended warranty from third and fourth opposite parties.
7. The first opposite party submitted that the complainant contacted the first opposite party during 2019 when the TV was found with certain defects and thereafter the complainant never contacted the first opposite party. It is submitted that when the complainant contacted the first opposite party his complaint was duly registered. But subsequently it appears the complainant contacted other opposite parties directly. But all those things are not aware to first opposite party. The submission of the complainant that the TV was examined, there was telephonic conversation that the opposite parties informed that they cannot repair the TV that the complainant was advised to approach the Court etc are not within in the knowledge of first opposite party and it is submitted that the same may be result of contacting the other opposite parties.
8. The first opposite party specifically submitted that they received only Rs. 57,500/- which is evident from the bill produced by complainant itself. The opposite party never received Rs. 67,198/- from the complainant. The first opposite party received only Rs. 57,500/- which is the cost of the TV. The TV purchased by the complainant has got 2 years warranty which is provided by the manufacturer, the second opposite party. The extended warranty up to 2023 was given by the third opposite party which is availed by the complainant at his own discretion. The first opposite party have no role in the matter of extended warranty. Hence the submission of the first opposite party that, they are not responsible for the mental agony, and financial loss caused to the complainant. Hence the submission is that there is no any sort of deficiency in service, unfair trade practice from the side of opposite parties and so the prayer is to dismiss the complaint with cost to the opposite party.
9. The third opposite party filed version denying the allegations of the complainant. It is submitted that the third opposite party is not an insurance company. It is submitted the extended warranty for a LED Television model No. TH49FS630D of the complainant was provided by the fourth opposite party. The role of third opposite party was limited to the extent of a “facilitator”. It is submitted the third opposite party arranged extended warranty for the LED Television of the complainant from the fourth opposite party. Hence the submission is that if any claim that is to be process and settled by the fourth opposite party and not by thethird opposite party.
10. The third opposite party submitted that the complaint is bad for misjoinder of unnecessary party. It is submitted that the extended warranty for the LED TV had been provided by the fourth opposite party and not by the third opposite party. The complainant availed CPP Asset Care membership of the third opposite party by paying a sum of Rs. 9698/-. By availing membership of the third opposite party, the complainant was provided with benefits like Multi-lingual Feature- Related Assistance Helpline, F-Secure SAFE Device Security etc. The insurance policy carrying extended warranty cover to LED Television of the complainant was provided by the opposite party No. 4 under policy No. 2999201867957001000 of the fourth opposite party.
11. It is submitted that the rights and obligations of both complainant and third opposite party are governed by terms and conditions, Membership terms and conditions and Extended warranty terms and conditions. The role of this opposite party is limited to arranging extended warranty to the LED television from the opposite party No.4 and providing one point contact to the complainant. Claim, if any, is to be processed, assessed and settled by fourth opposite party and not by third opposite party.
12. It is submitted that after having used the LED Television have almost 39 months and availing one insurance claim worth Rs. 25,730/- on 24/08/2020, the complainant intimated the alleged defect in LED Television on 11/10/2021. The third opposite party immediately forwarded the same to the fourth opposite party for appropriate action.
13. The complainant has claimed exorbitant sum from the third opposite party after having used the LED Television for almost 39 months. Claiming such exorbitant amount from the third opposite party even after being of the fact that the third opposite party is a mere facilitator, reveals the true intent of complainant i.e., to gain unlawfully from the third opposite party. The complainant is trying manipulate and misuse the benevolent provisions of Consumer Protection Act to extract huge sum from the third opposite party.
14. The submission if the third opposite party is that the total amount insured under the extended warranty was Rs. 57,500/-. The complainant has already availed one insurance claim of Rs. 25730/- on 24/08/2020. The balance sum insured was Rs. 30,590/- after deductions as per insurance policy. After having used the LED Television for over 39 months, the complainant intimated regarding the alleged defect to the television screen, with estimated cost of repairing Rs. 33,740/- which is more than balance sum insured i.e. Rs. 30,590/-. The fourth opposite party offered to pay the remaining sum insured, but the complainant insisted for complete replacement of television or to pay entire invoice value of television.
15. Hence, the submission of the opposite party is that there is no deficiency in service or unfair trade practice on the part of the third opposite party. The third opposite party is not liable to replace the television set or to pay the price of the television set or to compensate the complainant. Hence the prayer is to dismiss the complaint with heavy and exemplary cost.
16. The fourth opposite party filed version in tune with the third opposite party. It is submitted that complaint is not a consumer and the complainant is not approached the Commission with clean hands. But approached with suppressed material fact and so the complaint is liable to be dismissed. It is further submitted that the Commission have no jurisdiction to entertain and adjudicate disputed facts including the question of detailed and oral evidence, in summary consumer proceedings and as such the present complaint deserves dismissal.
17. It is admitted that the complainant had availed extended warranty group policy from HDFC ERGO GIC though CPP Group India Via Membership No. AC1576640, policy No.2999201867957001000, for a TV Panasonic India Limited LED, Model No. H-49FS630D, Serial No. 86PPNBFRC02179 for a total sum insured of Rs. 57500/-. The said policy was valid from 31/07/2020 to 30/07/2023. It is submitted the policy of insurance is a contract binding both the party and neither party can traverse beyond its scope and ambit.
18. The opposite party denied the allegations that they did not show any inclination
to solve the complaint and informed that it was not possible to act according to the warranty conditions and that for repairing the TV only an amount of Rs. 11000/- or for total loss an amount of Rs. 22,000/- alone will be paid etc. It is also denied that the complainant could approach the court for the redressal of grievance. It is submitted the opposite party is liable to compensate the complainant only according to the terms and conditions and exclusions of the policy.
19. The fourth opposite party submitted that an insured asset will be considered to be a constructive total loss if the cost of repair of the asset exceeds 75% of the sum insured /balance sum insured of the asset. In the case of a total loss, the company shall indemnify the insured in respect of the restoration or replacement costs subject to maximum of the sum insured set against the insured assert in the certificate of insurance, subject to a depreciation of 10% per annum from the date of invoice of the insured asset. Claims subsequent to the payments or partial loss claims shall be considered as a constructive total loss if the cost of repairs exceeds the remaining SI after payment of the partial loss claim.
20. It is submitted that the complainant had submitted claim No. C299920021559 on 24/08/2020 for defect of lines on screen and the panel was replaced and the repair cost of Rs. 25730/- was paid by the fourth opposite party. On 11/10/2021 the complainant again submitted claim No.C299921013239 for defect of double image and lines on screen with an estimate of Rs. 33,740/-. An amount of Rs. 1180/ was paid by the opposite party for the brand inspection charges of the TV of the complainant. It is submitted that the complainant had availed a total sum of Rs. 26,910/- and hence only an amount of Rs. 30,590/- was available in the sum insured. Accordingly, as per the terms and conditions there will be 30% depreciation and so only an amount of Rs. 22,000 /- was payable to the complainant.
21. The opposite party submitted that the cost of repair exceeded the available sum insured. The opposite party intimated the complainant to pay the difference in the amount for repairing the TV, but the complainant was not amenable. Replacement of TV with a new TV is not covered under the policy terms and conditions and so the opposite party sent an email dated 18/10/2021 intimating the fact. The opposite party also sent an email dated 19/10/2021 intimating that since the complainant did not opt for the cash loss option in full and final settlement, the opposite party will explore possibilities to get the product repaired.
22. Hence the submission of the opposite party is that they are not liable to pay Rs. 67,198/- or compensation of Rs.1, 00,000/- or expenses of Rs. 25,000/- to the complainant. It is submitted that there is no deficiency in service and unfair trade practice or the part of this opposite party and so the complaint is liable to be dismissed with cost to the opposite party.
23. The complainant and opposite parties filed affidavit and documents. The documents on the side of complainant marked as Ext. A1 to A6. The documents on the side of opposite parties marked as Ext. B1 to B4. Ext. A1 is copy of GST invoice for Rs. 57,500/- dated 31/07/2018. Ext. A2 is copy of Policy Membership details cum Sales proforma dated 14/08/2018. Ext. A3 is copy of claims status dated 11/10/2021. Ext. A4 is copy of email dated 18/10/2021. Ext. A5 is copy of email dated 19/10/2021. Ext. A6 is copy of email dated 27/10/2021. Ext. B1 is copy of Power of attorney dated 14/02/2022. Ext.B2 is copy of extended warranty details dated 14/08/2018. Ext. B3 is copy of claim details dated 24/08/2020. Ext. B4 is copy of claim details dated 11/10/2021.
24. Heard complainant and opposite parties No.1, 3 and 4. Perused affidavit and documents. The fourth opposite party filed argument note also. The following points arise for consideration: -
- Whether the complaint is maintainable?
- Whether there is deficiency in service on the part of opposite parties?
- Relief and cost?
25. Pointy No.1 and 2:-
The complainant purchased a television from the first opposite party which is
manufactured by the second opposite party and the third and fourth opposite parties provided extended warranty for the television. The complainant paid altogether an amount of Rs. 67,198/- which includes the cost of extended warranty Rs. 9698/-. The grievance of the complainant is that the TV became defective within the warranty period of manufacturer itself and approached the opposite parties for the redressal of grievance. But the opposite parties not properly responded to the grievance of the complainant and so approached this Commission for the remedy. We find that the complainant is a consumer and this Commission has got jurisdiction to entertain the complaint and the dispute is a consumer dispute as provided under
the Consumer Protection Act, 2019. Hence the Commission hold that the complaint
is maintainable before this Commission.
26. Point No.2 and 3: -
The complainant submitted that the product purchased from the first opposite party at the instigation of the employees of the first opposite party and the product became defective within months of use. On approaching the opposite party, the opposite parties replaced the panel of the TV. Subsequently also there was defect and on intimation to the second opposite party, the concerned service personals came to the residence of the complainant and on inspection it was again revealed the defect is to panel itself. But thereafter the opposite party not turned up, but offered Rs. 11,000/- as repair cost or Rs. 22,000/- treating the total loss of the TV. The complainant not being satisfied with the offer demanded for the refund of entire amount along with compensation of Rs. 1,00,000/- and cost of the proceedings Rs. 25000/-.
27. The Commission have gone through the entire documents and affidavits, filed by the parties to the complaint. It is admittedly the first opposite party is dealer and the second opposite party is the manufacturer. There is no specific allegation against the first opposite party dealer. The first opposite party submitted that the complainant approached them only once and then they had registered the complaint duly. The document further reveals that the third opposite party is only a facilitator and they submitted that if there is any complaint during the extended period of warranty that is to be settled by the fourth opposite party with the complainant. The fourth opposite party provided extended warranty and the third opposite party specifically contended that they are only the facilitator in between the transaction of complainant and the fourth opposite party. The third and fourth opposite parties vehemently opposed the claim of the complainant holding the strict terms and conditions in the Ext.B2. The opposite parties produced Ext.B2 to B4 in support of the contentions raised by the opposite parties. It can be seen that the complainant purchased the product on 31/07/2018 and the warranty of the manufacturers ends on 30/07/2020 i.e. after 2 years. The extended warranty starts from 31/07/2020 and ends on 30/07/2023 i.e., after 3 years. The opposite party produced Ext. B3 to show the settlement of insurance claim dated 16/10/2020 and the same reveals the date of estimate as 24/08/2020 which is during the extended period of warranty. Hence the perusal of Ext. B3 shows that the insurance settlement was made during the extended warranty period. The contention of the third and fourth opposite parties is that the complainant is only entitled for the insured sum of Rs. 57500/- after deducting the settlement amount as per Ext. B3. The fourth opposite party stated that an amount of rupees 1180/- was paid for the brand inspection charges of TV of the complainant. Hence a total amount of rupees 26910/-has already paid and the balance insured sum will be only 30,590/-rupees. It is further submitted that there will be 30% depreciation and so the balance amount will be only rupees 22000/- only. But the fourth opposite party has got a case that the complainant registered the complaint as C299921013239 alleging defect of double image and lines on screen with an estimate of rupees 33740/-. On perusal of document, we could not find such an estimate is produced by parties. None of the parties produced such a document. So we cannot hold the repair cost was above the insured sum. In the absence of repair estimate for repair cost, we cannot apply the principle of constructive total loss in to the facts and circumstances of this case. The complainant is entitled to get repaired the TV without any cost as per the extended warranty for which fourth opposite party is liable. If the fourth opposite party fails to do so the fourth opposite party is liable to pay the cost of TV Rs.57,500/- along with cost of Rs.5000/-.Hence, we allow this complaint as follows: -
- The fourth opposite party is directed to repair the TV free of cost and provide warranty extension for the period of registration of complaint C299921013239 to till date of repair.
- The fourth opposite party is directed to refund the cost of TV Rs. 57,500/-(Rupees Fifty seven thousand and five hundred only) if the fourth opposite party fails to repair TV as directed above.
- The complainant is liable to return the TV to the fourth opposite party after the refund of the TV cost.
- The fourth opposite party is directed to pay Rs. 5000/-(Rupees Five thousand only) as cost of the proceedings to the complainant.
The fourth opposite party shall comply this order within one month from the date of receipt of this order failing which the complainant is entitled for interest at the rate of 12% per annum for Rs. 62,500/- from the date of filing this complaint to till date of payment.
Dated this 30th day of April, 2024.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1to A6
Ext. A1: Copy of GST invoice for Rs. 57,500/- dated 31/07/2018.
Ext. A2: Copy of Policy Membership details cum Sales proforma dated 14/08/2018. Ext. A3: Copy of claims status dated 11/10/2021.
Ext. A4: Copy of email dated 18/10/2021.
Ext. A5: Copy of email dated 19/10/2021.
Ext. A6 : Copy of email dated 27/10/2021
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Ext. B1 to B4
Ext. B1: Copy of Power of attorney dated 14/02/2022.
Ext.B2: Copy of extended warranty details dated 14/08/2018.
Ext. B3: Copy of claim details dated 24/08/2020.
Ext. B4: Copy of claim details dated 11/10/2021.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
