Complainant Suresh Kumar vide the present complaint U/S 12 of the Consumer Protection Act, 1986 (hereinafter for short the Act) for issuance of the necessary directions to the opposite parties to replace the LED with model 48J5300 alongwith other relief. Opposite parties be further directed to pay Rs.1,00,000/- on account of harassment, mental agony and pain him alongwith Rs.10,000/- as litigation expenses, in the interest of justice.

2.       The case of the complainant in brief is that he is serving as NB Sub in India Army and at present posted Udhampur. He has purchased a Samsung LED Model 48J5300 through CSD Pathankot from opposite party no.1 on 1.8.2016 for Rs.58,100/-. At the time of delivery of said LED opposite party no.1 assured that they will give Airtel Dish, 6 months HD and one Pen Drive 8GB free of cost, but nothing was given free with the said Samsung LED and as such he is consumer of the opposite parties. He paid Rs.58,100/- for purchasing Samsung LED Model 48J5300 but opposite party no.1 delivered Samsung LED model UA48J5000 made by Samsung in Egypt not by Samsung India. On the next day from installation of said LED, he found that LED was not working properly and found that audio/video socket was not working properly so he lodged complaint about the said problem to opposite party no.2 and  their engineer visited his house at Udhampur and after checking the LED he told that the service of the LED is not given by our service centre free of cost as this is Egypt made LED and exported product and also said that service of this LED is not available here and said that is he wants to get the LED repaired, then he will have to pay Rs.5000/- per service. After that he approached the opposite party no.1 and requested them to replace the said LED Model and give a Sumsung made in India Model 48J5300 which he demanded at the time of purchasing the same but the opposite party no.1 flatly refused to replace the said LED Model. There is clear cut deficiency in service and unfair trade practice on the part of the opposite parties. Hence this complaint.

 3.      Notice of the complaint was issued to the opposite parties. Opposite parties no.2 and 3 appeared through their counsel and filed their joint written reply taking the preliminary objections that the present complaint is mis joinder of parties; the complainant has concealed the true and correct facts from this Hon’ble Forum ;the complainant has not set out any legitimate ground entitling him for replacement of LED TV with damages and litigation cost from opposite party and the present complaint is gross misuse of process of law. No cause of action has arisen in favour of the complainant and against the opposite party to file the present complaint. On merits, it was admitted that complainant lodged complaint regarding LED to opposite party no.2. Engineer from opposite party no.2 visited the house of the complainant and after checking the LED told that service of this LED is not given by opposite party no.2 free of costs as this LED is made in Egypt and is an imported product and to avail the service of this LED then complainant has to pay for the same.  The opposite party is not liable to replace the LED in question as the same is not manufactured by opposite party. All other allegations/averments as made out in the complaint and specifically the prayer clause have been vehemently denied and lastly the complaint has been prayed to be dismissed

4.        Notice issued to the opposite party no.1 and Sh.Rajeev Sharma, Adv.has appeared on behalf of it but failed to file the written statement and was proceeded against exparte vide order dated 31.5.2017.

5.      Complainant tendered into evidence his own affidavit Ex.CI, along with the other documents exhibited as Ex. C2 to Ex.C-11 and closed the evidence.

6.      On the other hand, the opposite party No.2 and 3 tendered into evidence affidavit of  Anindya Bose Ex.OP-2,3/1 and closed the evidence.

7.      We have carefully examined all the documents/evidence as made available on the complaint records (as duly put forth by the participating litigants) along with the scope of the adverse inference that may be judicially but discretionarily drawn on account of the intentional non-participation of the prime OP Vendor and instead preferring ex-parte proceedings, in the very back-drop of arguments as put forth by the learned counsels for the litigating sides.

8.       We find that the complainant had on record purchased (affidavit Ex.C1) 48” LED (48 inches LED) Samsung Make Model 48J5300 vide Bill # 21168 of 01.08.2016 for Rs.58,100/- (Ex.C2) from the OP1 Vendor @ CSD Rates being an Army Personnel. However, the LED (in question) when installed at the Purchaser’s Udhampur House, it malfunctioned and when the complainant approached the OP2 Samsung Service Centre at Udhampur he was advised that the LED had no-warranty cover here in India as it is Samsung Egypt Make LED (as per the Ex.C4). The OP2 Visiting official also advised that ‘Repairs’ shall be charged @ Rs.5,000/- for the pre-told reason. The complainant approached the OP1 Vendor who flatly refused to replace the sold LED with the Samsung India Make Product and thus prompted the present complaint for replacement/ refund etc along with the suitable cost and compensation etc.

9.       We find that the present complainant has successfully proved all his complaint-contented allegations vide his affidavit Ex.C1 and other evidentiary documents Ex.C2 to Ex.C11; and we further find that the (OP2 and OP3) Samsung India have also ratified the above complainant-stated fact(s) vide its duly deposed affidavit Ex.OP2.3/1; whereas the OP1 vendor preferring to be proceeded against ex-parte (by staying away from the same) has further strengthened the trite judicial presumption that an intentional absentee/ ex-parte litigant has no legs to stand in the witness box to plead his defense/ no cogent and acceptable defense to plead. However, we (in line with the settled law) are inclined to subject the ‘award’ to the restrictions of ‘moderation’ so as not to cause undue enrichments to the ‘awardee’ and/ or to cast undue excessive ‘distresses’ to the delinquent party.            

10.     In the light of the all above, we find the hue of actionable statutory merit in the present complaint and thus ORDER the OP1 Vendor to replace the Egypt Make LED with a brand New and Fresh piece of LED of exactly the Sold LED specifications or otherwise to refund full invoice amount of Rs. 58,100/- to the complainant besides to pay him Rs.15,000/-  as cost and compensation within 30 days of the receipt of the copy of these orders otherwise the awarded amount shall attract interest @ 9% PA from the date of filing of the present complaint till actual payment. However, the complainant shall be at liberty to continue with his follow-up of the initiated criminal action against the OP1 Vendor, in terms of the continuing criminal complaint (Ex.C8).   

11.     Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.

       (Naveen Puri)

                                                                      President   

Announced:                                            (Jagdeep Kaur)

April 06, 2018                                                 Member

*MK*