DISTRICT CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD

Dated this the 17^th day of June 2019

Present   : Smt.Shiny.P.R. President

              : Sri.V.P.Anantha Narayanan, Member        Date of filing:23/07/2016

                                                            CC/106/2016

Sreenivasn

S/o Krishnankutty,

5^th Mail, Valiyachallapathy Village,

Chittur Taluk, Palakkad.                                                          -           Complainant  

(By Adv.K.A.Kailas)

Vs 

1. Mohana Sundaram                                    
     Proprietor Naveen Enterprises,    

     Challapatha, Kozhinjampara,

    Chittur Taluk, Palakkad.

2. Sundha Electronics & Home Appliances                             -       Opposite Parties

    Rep.by its Manager, 138/175,

    Bazar Street, Near (VKR), Pollachi – 642 001.

   (By Adv.S.Sujana)
3. Mitsun Service Centre

    Rep.by Authorised Officer, No.29,

    Walters Road, 2^nd Floor, Mount Road,

    Chennai – 600 002.

(2 & 3 opposite parties are supplemental opposite parties)

                                                                        O R D E R

By Sri.V.P.Anantha Narayanan, Member

Brief facts of the case are as follows:

            The complainant purchased from the opposite party who is trading in electronic goods and other items on installment basis Mitsun TV MIT 3105 80 cm(31.5 inches) on 22/02/2016, fixing a price of Rs.16,500/- and at the time of buying the TV an advance of Rs.5,000/- and by way of installments Rs.3,000/- was paid by the complainant.  According to the complainant he has paid each installment correctly and Rs.500/- paid as last installment was not entered because he was not having the card.  When complainant asked the opposite party the reason for the same, opposite party told him that if bill, warranty card and user manual were given to the complainant and if installment amount was not paid or the television was shifted from his house, then the opposite party could not recover the installment amount.  The complainant further pleads that, making him believe that the said television has warranty from the date of purchase, the 1^st opposite party sold the TV to the complainant.  According to the complainant since the TV was sold on installment basis, the 1^st opposite party did not give the complainant purchase bill, warranty card and user manual.  After the purchase of the TV, the 1^st opposite party fitted the TV on 06/03/2016 and worked the same, but on 07/05/2016 its display board was broken and the television set became damaged.  Immediately complainant contacted the opposite party who came to the complainant’s house and took the TV telling the complainant to give it back after repairing it.  But complainant pleads that to this date TV set was neither repaired nor replaced.  Though the complainant contacted the opposite party several times no service or relief was given to him by the opposite party.  Under this circumstance complainant asked the opposite party to return the paid amount of Rs.8,000/- which the opposite party did not give.  Complainant again pleads that he and his wife are staying alone in the house and when the complainant has gone to his job in the morning, upto his return at night, his wife was alone in his house.  Since they did not have children and treatment is being conducted for his wife, she cannot go for employment or engage in other works and television has become a necessity and since he cannot pay the entire amount in lump sum, from the opposite party the TV was purchased on installment basis; being without TV has affected complainant’s wife as she had to experience solitude and other difficulties which affected her treatment also.  Hence complainant has experienced mental agony and other difficulties.  After purchasing the TV for his use, it became damaged from the beginning, by which complainant has to suffer a loss of Rs.16,500/-, after purchasing the TV it became faulty within its period which was informed to the opposite party, but the opposite party did not either repair it or replace it nor return the amount of the TV which constituted deficiency in service and unfair trade practice on the part of the opposite parties.  In addition due to the damage of the TV complainant and his wife missed news, entertainment programs etc. which is only because of irresponsible act of the opposite parties.  On this account complainant has suffered a loss of Rs.5,000/-.  According to the complainant because of the deficiency in after sale service on the part of the 1^st opposite party, and the 1^st opposite party’s deficiency in service and unfair trade practice Rs.5,000/- loss has occurred to the complainant.  The opposite party should be ordered to pay a compensation of Rs.25,000/- to the complainant.  Since the loss was not reimbursed to the complainant by the opposite party, a lawyer notice was sent on 15/06/2016 to the opposite party; the opposite party without receiving it returned the same which made the complainant to approach this Forum for relief.  Therefore the complainant prays to the Forum to direct the opposite parties to pay the price of the TV of Rs.16,500/-, for not being able to use the TV because of damage to the TV by way of compensation Rs.5,000/- may be ordered to be paid by the opposite party to the complainant, by way of compensation for mental agony Rs.25,000/- may also be ordered to be paid to the complainant by the opposite party together with the cost of this proceedings.

            The complaint was admitted and notices were issued to the opposite parties to enter their appearance and file their versions. 2^nd and 3^rd opposite parties were also included in the array of the opposite parties.  As per the version filed by the 1^st opposite party this complaint does not stand legally.  1^st opposite party also contends that except those specifically admitted, complainant has to prove the averments in the complaint.  This opposite party carries on trade on installment basis in electronic goods and other items.  The complainant purchased from the opposite party Mitsun TV MI 3150 80cms(31.5 inches) TV on 22/02/2016 on installment basis fixing a price of Rs.16,500/-.  At the time of purchasing the TV an advance of Rs.5,000/-, by way of installments Rs.3,000/- were paid and each installment was correctly paid by the complainant without default.  This opposite party denies as incorrect the above averments and  various other averments made by the complainant in his complaint.  The actual facts according to this opposite party are given below.  As told by the complainant to this opposite party the complainant and the 1^st opposite party went to the 2^nd opposite party’s shop-Sudha Electronics and Home Appliances, 138/175, Bazaar Street, Pollachi and from that shop on 20/02/2016 the complainant purchased the TV.  Since complainant did not have full amount to purchase the TV he gave Rs.5,000/- on that date, this opposite party agreed for the complainant to take the balance amount for the seller shop; then monthly for the shop this opposite party obtained from the complainant amount which was given to the shop.  This opposite party contends that they did not sell anything to the complainant and there is no seller purchaser relationship between this opposite party and the complainant.  This opposite party further contends that due to the acts of the complainant the subject TV got damaged and if there is no warranty or guarantee for the TV Sudha Electronics should be contacted.  According to this opposite party this opposite party is not the seller of the subject TV nor its distributor nor its manufacturer.  The user manual of the said TV, in addition to warranty card and other accessories of the TV were given to the complainant on that date by the seller firm namely Sudha Electronics.  To seller firm balance amount collected from the complainant was also paid.  This opposite party also contends that due to the complainant’s act the subject TV got damaged for which complainant is only responsible.  This opposite party further contends that necessary parties were not made opposite parties in this case and hence this case will not stand legally; complainant is not a consumer under section 2 of the Consumer Protection Act 1986.  Between the complainant and this opposite party there is no consumer service provider relationship and to cause difficulties to this opposite party this complaint is filed.  Therefore this opposite party prays to the Hon’ble Forum to dismiss the complaint with cost.

            As per the version filed by the 2^nd opposite party, it is contended that except those things admitted all others were denied by this opposite party.  According to this opposite party this complaint is filed not in good faith, and experimentally; it is also not legally maintainable and therefore this complaint should be dismissed.  This opposite party has no relation with the complainant whom this opposite party does not know.  That the complainant purchased from the 1^st opposite party Mitsun TV MIT 3105-80 cms.(31.5 inches) on 22/02/2016 on installment basis fixing a price of Rs.16,500/-, that an advance of Rs.5,000/- was paid, that by way of installments Rs.3,000/- was paid to the 1^st opposite party are not known to this opposite party.  This opposite party also has no knowledge of non giving of purchase bill, warranty card, user manual to the complainant by the 1^st opposite party, fitting the said TV on 06/03/2016 and its working, breaking of its display board on 07/05/2016.  This opposite party also contends that they did not see the complainant at all and they need not be taken as the opposite party.  The 1^st opposite party purchased from this opposite party’s shop at Pollachi as seller of the goods and only when summons was received by this opposite party on 17/02/2017 from this Forum, this opposite party knew that complainant purchased a TV from the 1^st opposite party and on 07/05/2016 its display board was broken.  This opposite party purchased the subject TV from the company, namely Mitsun Service Centre, No.29. Wallers Road, 2^nd Floor, Mount Road, Chennai, and sell TV from this opposite party’s shop at Pollachi.  Satisfying all conditions fixed by the company, giving all benefits including warranty to the consumers sale is conducted by this opposite party.  Damages occurring during the warranty period were set right at the cost of the company and this service is done by the company.  But this responsible company is not made a party in this case hence without making the company a party this complaint is filed and hence this complaint suffers from the defect of non joinder of necessary party.  Also for goods sold from this opposite party, their purchase bill, warranty card, user manual etc. were given at the time of sale itself.  The household articles sold from this opposite party, if got damaged during their warranty period, were set right at the cost of the company.  But if sold products or their parts are broken the loss for the same has to be borne by the complainant.  Due to complainant’s negligence display board of the TV was broken this opposite party or the company is not liable for the display board broken due to its irresponsible use by the complainant.  This opposite party also contends that other averments made by the complainant in his complaint are not correct and made for the purpose of this case.  This opposite party has not committed any deficiency in service and unfair trade practice.  That due to damage to the TV, to the complainant and his wife news, entertainment programmes etc were missed and on that account Rs.5,000/- loss occurred is also not correct which complainant is not entitled to get from this opposite party.  On the part of this opposite party no deficiency in after sales service no deficiency in service and no unfair trade practice have occurred and no mental agony has occurred to the complainant and the complainant is not entitled to recover Rs.25,000/- as compensation from this opposite party.  This opposite party also contends that, to this opposite party the complainant has not sent any lawyer notice.  Further it is not anywhere mentioned in the complaint that from this opposite party complainant has purchased the subject TV, and that complainant has been doing transactions with this opposite party.  According to this opposite party it is also not correct to state that they are the distributors of the disputed TV, that it is the responsibility of the opposite parties 1 and 2 to repair the display board broken of the subject TV on 07/05/2016, that upto this date the subject TV was not repaired nor replaced, that this act constitutes a deficiency on the part of 1^st and 2^nd opposite parties, that order should be passed to recover the complainant demanded amount from the opposite parties 1 and 2 and according to this opposite party these statements are made by the complainant only to cause difficulties to this opposite party and this opposite party is not liable to pay the demanded amount.  The cause for the complaint is false and incorrect.  Hence this opposite party pray to the Hon’ble Forum to uphold its contentions and dismiss this complaint with cost.

            Complainant filed chief affidavit so also the 2^nd opposite party.  Notice was sent to the 3^rd opposite party, their name called absent and they were set exparte.  Exts.A1 to A3 were marked, Ext.A2 in series from the side of the complainant.  Complainant and the 2^nd opposite party were heard.  2^nd and 3^rd opposite parties were included as supplemental opposite parties in the party array as per order in IA.

            The following issues arise in this case for consideration by this Forum.  

1. Whether there is any deficiency in service and unfair trade practice on the part of the opposite parties?

     2.  If so, the relief and cost which the complainant is entitled to ?

Issues No.1 & 2 in detail

            In this case the complainant has submitted Exts.A1 to A3 series documents to defend his pleas.  Ext.A1 is a card (patt book) issued by the opposite party to the complainant which shows name of the complainant, amounts paid by the complainant etc…Ext.A2 is a copy of lawyer notice sent by complainant’s lawyer to the opposite party along with postal receipt asking the opposite party to replace the damaged TV with a new TV or to pay to the complainant Rs.8,000/- along with compensation.  Ext.A3 series is the cover containing the lawyer notice, returned by the opposite party not received by them along with acknowledgement card. 

            From the affidavits filed by the complainant and the 2^nd opposite party and documentary evidences filed by the complainant, we understand that the disputed TV was purchased by the complainant on instalment basis from the 1^st opposite party on 22/02/2016 and it became damaged and unusable within around two months of the  date of purchase of the same due to breakage of its display board and though the first opposite party took back the subject TV for repair; it is observed that so far it was not returned after repair nor replaced.  This is inspite of the fact that complainant has paid Rs.5,000/- at the time of purchase  of the TV and Rs.2,500/- in instalments which is evident from Ext.A1.  We also view that this act on the part of opposite parties shows grave deficiency in service on their part.  We also observe that the complainant was not seen given by the opposite parties purchase bill, warranty card and user manual in respect of the disputed TV which  act also demonstrates that deficiency in service and unfair trade practice are seen committed by the opposite parties.  We also observe that the opposite parties have not produced any solid evidence to establish that the display board of the disputed TV got broken due to the negligence of the complainant.  At the same time we also observe that complainant is not seen to have taken any steps to prove the defect of the subject TV, and its display board; he also is not seen to have availed the services of a technical expert to prove the defect of the display board of the subject TV. 

            Under these circumstances we decide to allow the complaint in part.

            We order jointly and severally the opposite parties 1, 2 & 3 to pay to the complainant Rs.7,500/- (Rupees seven thousand five hundred only) seen paid by the complainant to the opposite parties in connection with the purchase of the disputed TV; the 1,2 & 3 opposite parties are also directed to pay to the complainant jointly and severally Rs.2,500/- (Rupees two thousand five hundred only) as compensation for mental agony and other difficulties suffered by the complainant and his family due to non working of TV.  In addition Rs.1,000/- (Rupees one thousand only) should also be paid to the complainant by opposite parties 1,2 & 3  jointly and severally by way of cost of this proceedings incurred by the complainant. 

This order shall be executed within one month from the date of receipt of this order; otherwise complainant is also entitled to receive 9% interest p.a on the total amount due to him from the date his order till realization.     

Pronounced in the open court on this the 17^th day of June 2019.

                                                                      Sd/-                                            

                                                                                                                            Shiny.P.R                                                                                

                                    President

                                               Sd/-

                          V.P.Anantha Narayanan

                                        Member

Appendix

Exhibits marked on the side of complainant

Ext.A1 – Original card (patt book) issued by the opposite party to the complainant

Ext.A2 series - copy of lawyer notice sent by complainant’s lawyer to the opposite party

            along with postal receipt

Ext.A3 - cover containing the lawyer notice, returned by the opposite party not received

               by them along with acknowledgement card

Exhibits marked on the side of Opposite parties

Nil

Witness examined on the side of complainant

NIL

Witness examined on the side of opposite parties

Nil

Cost     - Rs.1,000/-