Orissa

Cuttak

CC/66/2017

Sujit Kumar Padhy - Complainant(s)

Versus

Managing Director,Swastik Electronics - Opp.Party(s)

R P Pattanaik & associates

15 Jul 2022

ORDER

IN THE COURT OF THE DIST. CONSUMER DIUSPUTES REDRESSAL COMMISSION,CUTTACK.

                                                                                   C.C.No.66/2017

Sujit Kumar Padhy,

S/o:Late Sukanta Charan Padhy,

At-A2,Ashiyana Arundaya Nagar,

P.O:Arundaya Market,Dist:Cuttack..                                  ... Complainant.

 

                                                Vrs.

1.        Managing Director/Proprietor,

Swastik Electronics,College Square,

Cuttack-3.

 

2.        Managing Director/Proprietor Toshiba India Pvt. Ltd.,

3^rd Floor,Building No.10 BDLF Cyber City,

Gurgaon-122022.                                                                       ... Opp. Parties.

                       

Present:               Sri Debasish Nayak,President.

                                Sri Sibananda Mohanty,Member.

 

Date of filing:    09.05.2017

Date of Order:  15.07.2022

 

For the complainant:          Mr. R.P.Pattnaik,Adv. & Associates.

For the O.P.No.1       :              None.

For the O.P No.2:                Mr. S.Swain,Adv. & Associates.

 

Sri Debasish Nayak,President.

                                   

            Case of the complainant in nutshell is that he had purchased one Toshiba LED 32 inches PT200ZE from the shop room of O.P No.1 for a consideration of Rs.24,000/- on 5.6.14.  The said LED had warranty for three years which implicated free service with free parts thereof.  Two years after the purchase,  the said LED showed many defects for which the complainant had lodged complaint having sl.no.TIPLSR9H0011252 but the same could not be rectified even though it was sent to the workshop of the O.Ps.  The complainant therefore was forced to send legal notice to the O.Ps and ultimately had to file this case claiming cost of the said LED to the tune of Rs.24,000/- or  in the alternative, for its replacement alongwith a sum of Rs.100/- per day towards compensation with effect from 2.11.16 since because he had suffered harassment, inconvenience and mental agony.  The complainant has further claimed a sum of Rs.1000/- from the O.Ps towards cost of the litigation.

            To support his case, the complainant has filed a series of xerox copies of the relevant documents.

2.         Out of two O.Ps arrayed in this case, O.P No.2 has contested this case and has filed his written version but O.P No.1 has not contested this case for which he has been set exparte vide order dt.11.9.17.

            The O.P No.2 in his written version has stated that the complainant without making the Toshiba Company a party to this case, has arrayed the Managing Director only.  In this context O.P No.2 in its written version has quoted a decision in the case of “The India Hotels Company Ltd. Vrs. Binu Annand Khana and Ors” published in FAO(OC) No.562 of 2013 and C.M.No.19266/2013.  O.P No.2 admits about the purchase of the LED by the complainant for a consideration of Rs.24,000/- on 5.6.14.  O.P No.2 also admits that the warranty period for the said LED was for three years from the date of purchase but he has drawn attention towards certain conditions of the warranty which stipulates that in case where no parts is available, the company reserves the right to refund back the value of the product only after deducting the depreciating value which is @ 10% per annum.  Accordingly, O.P No.2 mentioned in his written version that by calculating the depreciating value of the said LED, the complainant was offered a sum of Rs.16,387/- but the complainant had refused to accept the said amount and thus the “refund proposal” as initiated by O.P No.2 was turned down by the complainant.  O.P No.2 in his written version has quoted a judgment of the Hon’ble Supreme Court in the case of Bharathi Knitting Company Vrs. DHL Worldwide Express Courier Division of Air Freight Ltd. published in AIR 1996 SC 2508 wherein it is held that the liability undertaken in contract between the parties should be limited to the extent undertaken and the terms of warranty are binding on the parties.  Thus it is the contention of O.P No.2 in his written version that the case of the complainant being devoid of any merit should be dismissed with cost.

3.         Keeping in mind the averments as made by the complainant in his complaint petition and the contentions of the O.P No.2 in his written version, this Commission is of a view to settle the following issues in order to arrive at a definite conclusion here in this case.

            i.          Whether the case of the complainant is maintainable?

            ii.         Whether the O.Ps were deficient in their service towards the complainant?

            iii.        Whether the O.Ps had practised unfair trade?

            iv.        Whether the complainant is entitled to the benefits as claimed?

Issues No.2 & 3.

            Out of four issues, issues no.2 & 3 being pertinent issues are taken up together first for consideration here in this case.

            After analysing the averments together with the copies of the documents as available in the case record, it is noticed that there is no dispute as regards to the purchase of the LED by the complainant from the O.Ps for a consideration of Rs.24,000/- on 5.6.14.  It is also not in dispute that the said LED had shown some defects after two years of purchase.  The warranty as provided by the O.Ps for the said LED is admittedly for three years.   There is no plea from the side of the O.Ps that the defects are noticed were intentionally made by the complainant.   The plea of the O.P No.2 is that as per the terms and conditions of the warranty, in case of non-availability of the spare parts, the Company reserves the right to refund back the value of the LED after deducting the depreciating value @ 10% per annum and accordingly the complainant was offered a sum of Rs.16,387/- to which the complainant had refused to accept for which the refund proposal was closed being refused.  The O.P No.2 has admitted about the not working of the LED as on 8.9.16.  The decision as relied upon binding the parties to the contract when scrutinized and as regards to the facts of this case, when compared therein, it is noticed that there was no such explicit contract executed in between the complainant and the O.Ps when the complainant purchased the LED  in question.  The terms of contract upon which O.P No.2 has harped upon, is not sufficiently proved by O.P No.2 that if the same were within the knowledge of the complainant when he had purchased the said LED in question.  That apart, the O.P No.2 though has mentioned that when the complainant refused to accept the refund back amount of Rs.16,387/-, the refund proposal was turned down. But not a single scrap of paper has been put forward and proved in this connection by the O.P No.2 in order to establish his plea in this regard.  Thus, in the absence of such documents, this Commission arrives at a conclusion that when there was subsistence of warranty period and within which the LED was not working, was sent for being repaired; could not be done by the O.Ps and this forces us to arrive at an irresistible conclusion that there was indeed deficiency in service by the O.Ps here in this case towards the complainant. 

The O.P Company has taken the plea of non-availability of spare parts. It is obvious that when the Company expresses ‘warranty’ on the product for three years, it is quite expected that company should possess those spare parts of the product for the said warranty period and the plea that the spare parts were not available in the market when the LED was not functioning: as taken by the O.Ps, does not hold good.  Hence, by taking such plea, the O.Ps especially O.P No.2 had proved to have practised unfair trade here in this case.  Accordingly these two important issues are answered against the O.Ps.

Issues No.1 & 4.

            From the above discussions, when the LED in question was within the warranty period but was not functioning and the O.Ps could not repair the same but have taken vague pleas thereby, the complainant has filed this case which definitely maintainable and the complainant is thus entitled to the reliefs as claimed by him.  Hence, it is so ordered;

                                                            ORDER

            The case is decreed on contest against the O.P No.2 and exparte against O.P No.1.  Both the O.Ps are found to be jointly and severally liable in this case.  The O.Ps are therefore directed to pay the cost of the LED  to the tune of Rs.24,000/- to the complainant alongwith interest @ 9% per annum with effect from 2.11.16 till the total amount is quantified.  The O.Ps are further directed to pay a sum of Rs.10,000/- towards the harassment and mental agony caused to the complainant and also to pay a sum of Rs.1000/- towards the litigation cost of the complainant.  This order is to be carried out within a month hence.

Order pronounced in the open court on the 15^th day of July,2022 under the seal and signature of this Commission.

                                                                                                                                   

                                                                                                                              Sri Debasish Nayak

                                                                                                                                        President

                                                                                                                       

                                                                                                                             

                                                                                                                         Sri Sibananda Mohanty

                                                                                                                            Member.