Delhi

North East

CC/115/2014

Sh. Sandeep Aggarwal - Complainant(s)

Versus

M/S Adonis Electronics Pvt. Ltd. - Opp.Party(s)

11 Jan 2019

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. 115/14

 

In the matter of:

	Shri Sandeep Aggarwal R/o Flat no. 1585 (Ground floor) D.D.A. Flats, G.T.B Enclave, Delhi-110053	Complainant
	Versus
1.             2.	M/s Adonis Electronics Pvt. Ltd. A-19, B-1, Mohan Cooperative Industrial Estate, Opp. NTPC, Mathura Road, Badarpur, New Delhi- 110044 Through its Director   M/s Kohli Enterprises Shop no. 1/867, DDA Janta Flats, G.T.B. Enclave, Main Veer Bazar Road, Delhi-110093 Through its partner/proprietor	Opposite Parties

 

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

24.03.2014 11.01.2019 11.01.2019

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

 

Order passed by Ms. Sonica Mehrotra, Member

 

 

ORDER

1. Briefly stated, the facts of the present complaint as narrated by the complainant are that he is managing a private limited company under the name and style of M/s UPICON technologies Pvt Ltd and had purchased Onida CTV 14” model 160 manufactured by OP1 company from OP2 (dealer) on 16.07.2012 vide invoice no. 2649/ book no. 27 to be installed at his above mentioned office for entertainment for the visitors and staff at the reception area. However, soon after purchase, the colours of the said TV started getting fainted which could not be rectified through remote and when the complainant tried to manually control the same, the said TV started giving electric shocks. The complainant immediately complained to OP2 about the same but was asked to contact OP1 and on contacting / complaining with OP1 on 30.01.2013, the aforesaid faulty TV was replaced with a new one by OP1 on the pretext of the previous one having manufacturing defect and the complainant was assured of perfect service and good experience with the replaced TV. However soon after, the replacement TV also  turned out to be defective and was again replaced by OP1 on 23.03.2013. But the second replacement also started giving problem leading to bitter experience by the complainant who again lodged a complaint with OP1 which sent a technical staff/ mechanic at the premises of the complainant but the said mechanic, after inspection of the said TV, put some remarks on the delivery note on 25.03.2013 and refused to repair or replace the said TV and went away. Thereafter the complainant pursued with the OPs several times to replace the faulty TV or refund the cost thereof but neither any staff of OPs visited the complainant nor the OPs refunded the cost of the said TV and instead their staff misbehaved with the complainant. The complainant issued a legal notice dated 15.04.2013 to the OPs demanding refund of the TV alongwith damages to which the OPs vide reply dated 24.05.2013 took the defence of not liable to refund due to improper maintenance and bad installation by the complainant and colour fading not being covered under warranty. Lastly, the complainant aggrieved with the unfair trade practice and deficiency on service on the part of OPs causing him immense mental and physical pain and harassment besides financial loss due to faulty TV, was constrained to file the present complaint before this Forum praying for issuance of directions against the OPs to either replace the defective TV or refund the cost thereof to the tune of Rs. 4,200/- in addition to  Rs. 1 Lac as compensation for mental pain, agony and financial turmoil and Rs. 10,000/- as litigation cost.

Complainant has attached copy of bill/cash memo dated 16.07.2012 for purchase of TV, copy of delivery note no. 978 dated 30.01.2013 towards first replacement of TV by OP1, delivery note no. 994 dated 23.03.2013 towards second replacement of TV by OP1 with remarks by technician of OP1 “two capacitor outside manual tampered” dated 25.03.2013, copy of legal notice dated 15.04.2013 sent to OP and reply thereto by OP dated 24.05.2013.

2. Notices were sent to OPs on 24.04.2014. None appeared on behalf of OP2 despite service effected on 30.04.2014 and was therefore proceeded against ex-parte vide order dated 09.06.2014 on which date OP1 filed its written statement in which while admitting the factum of the purchase of the subject TV by the complainant and replacement thereof on two occasions on 30.01.2013 and 23.03.2013, OP1 took the preliminary objection that on the previous occasions, the OP1 had ignored the minor tampering done by the complainant with the subject TV set but had replaced the same with a superior model as a good will gesture on insistence of the complainant. However, in March 2013, its service engineer found the chassis of the TV set being tampered and capacitor and PF component broken and speaker wire torn and therefore had put his remark to this effect on the delivery challan dated 25.03.2013 which was crossed by complainant himself. The OP1 further took the defence that the complainant had tampered and broken the component of TV and was demanding replacement again and again in violation of article 13 of the terms and conditions of the warranty which specifically mentioned that the warranty does not extend to any part of the set which has been damaged due to misuse, neglect, accident or improper installation, damages caused by pets or any external agents such as lighting, flooding, fire etc. further the warranty shall cease to be operative in the event of the set having been tampered with, serviced or repaired by any agency not authorized by the company. OP1 further urged that the electronic product, being sensitive needs to be handled very carefully as per instruction and since the complainant had himself tampered with the product and broken its component, he had violated the terms and conditions of the warranty and denied any manufacturing defect in the said TV else it would not have been replaced twice with a superior model by OP1. Lastly OP1 highlighted the defence taken in reply to legal notice whereby it mentioned the details service records of the service of the said TV set.
3. Rejoinder and evidence by way of affidavit was filed by the complainant in reiteration of his grievance against the OPs and in rebuttal to the defence taken by OP1 in its written statement. The complainant submitted that it was the engineer of OP1 who had opined that the subject TV set was defective and therefore was replaced with a new one and denied having tampered with the said TV set in any manner whatsoever or having threatened the service engineer of OP1 demanding replacement and stated that the complainant had always handled the subject TV with utmost care. The complainant also submitted that the subject TV had become a cause of embarrassment as it was just lying as a show peace being totally non-functional.
4. Evidence by way of affidavit was filed by OP1 in reiteration of its defence and exhibited copy of challans dated 30.01.2013 and 23.01.2013 and copy of warranty card as exhibit R/E-1 to 3.
5. On hearing dated 09.09.2014, a possibility of settlement to the tune of Rs. 5,000/- was proposed for amicable settlement in the matter but could not be effected due to no agreement arrived at between the parties.
6. Written arguments were filed by both the parties to reemphasize / reiterate their respective grievance / defence.
7. The complainant addressed oral arguments on 14.02.2017 and the matter was reserved for order by the previous bench. However, the matter was relisted for oral arguments on 13.02.2018 on which date the complainant addressed oral arguments and despite ample opportunity having been granted to OP1 to address oral arguments it failed to appear or addressed the same.
8. We have given our thoughtful consideration to the arguments advanced by the counsel for the complainant and have thoroughly perused the documentary evidence placed on record.

It is not in dispute that the subject TV Onida purchased by the complainant in July 2012 was replaced twice by OP1 in January 2013 and March 2013 which fact of replacement makes it evident that the subject model suffered from inherent manufacturing defect resulting / requiring frequent replacement and recurring defects arising therein. Therefore the defence of the OP1 that the subject TV had no manufacturing defect blaming that the complainant himself had tampered the product or broken its components runs contrary to the factum of replacement of the said TV which the OP1 would not have otherwise undertaken to do so in the event of serious tampering or damaged to TV by the complainant as alleged by it in the first place. This issue is therefore decided against OP1 in favour of the complainant.

As regards fastening of liability of the seller in such cases, the Hon’ble National Commission in the judgment of Prabhat Kumar Sinha Vs Nitish Kumar III (2016) CPJ 239 (NC) had held that the petitioner being the seller of a defective computer under warranty, in our considered view, was under obligation either to rectify the defects or to replace the computer or refund the consideration amount received. So far as the liability of the manufacturing company is concerned, it is the issue between the manufacturing company and the dealer for which the respondent cannot be made to suffer. The Hon’ble National Commission in Kirloskar Oil Engineers Ltd Vs M. Lokesh 2003 (1) CPR 192 (NC) upheld the concurrent findings of Hon’ble State Commission and District Forum holding manufacturer and dealer jointly and severally liable for deficiency of service in failure to rectify the defects in the generators manufactured by OP. The Hon’ble National Commission in the judgment of JNP Agro Systems Pvt Ltd Vs K.K.Jose 2001 (3) CPR 53 (NC) held that complainant could not be made to suffer for problems between dealer and manufacturer. Therefore in light of the settled proposition of law, the liability of OP1 and OP2 is co-extensive towards the complainant of manufacturer and dealer as being joint and several.

OP1 has nowhere specifically denied the defects alleged by the complainant in the TV in question and the defence was limited to wriggling out of its liability on lame defence of complainant having tampered with the TV and the same having being damaged by the complainant due to improper usage and installation. After due appreciation of the facts of the case we are of the considered view that both the OPs are guilty of deficiency of service in having sold a defective TV demanding repeated replacements. The Hon’ble National Commission in the judgment of R. Kesava Kumar Vs Sonovision and Ors I (2016) CPJ 675 (NC) had upheld the order passed by the District Forum, not interfered by Hon’ble State Commission Lucknow in case of manufacturing defects in case of fridge in which the District Forum had directed OP to refund the cost of fridge alongwith compensation as reasonable and justified.

Therefore relying on the observation and view of the Hon’ble National Commission in light of the facts of the present case we direct OP1 and OP2 jointly and severally to refund the cost of the TV for a sum of Rs. 4,200/- to the complainant for mental pain, agony and financial turmoil. We further direct the OPs jointly and severally to pay a sum of Rs. 2,500/- towards compensation for harassment and mental agony and Rs. 1,500/- towards litigation expenses to the complainant. Let the order be complied within 30 days by OPs from the date of receipt of copy of this order.

9. Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
10.  File be consigned to record room.
11.  Announced on 11.01.2019

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member