Complainant Ashok Kumar has filed the present complaint against the opposite parties (in short OPs) U/S 12 of the Consumer Protection Act (for short, The C.P.Act.) seeking necessary directions to the O.Ps to pay him Rs.1,00,000/- on account of physical and mental harassment and mental agony. Any other relief which the Hon’ble Forum may deem fit may also be granted to him, in the interest of justice.

2.        The case of the complainant in brief is that on 03.10.2016 he had purchased a New Onida LED 32” from an authorized dealer M/s.Ajay TV Centre (Regd.), Tibri Road, Gurdaspur for Rs.19,000/- and three years warranty vide warranty card no.122196 from 3.10.2016 was given. He has further pleaded that on 29.9.2018 due to some technical fault in the LED, he contacted the Authorized distributer of said product namely M/s.Ajay T.V. Centre, Gurdaspur and they gave a toll free no.18001031000 of the Onida Company and the concerned company registered his complaint on his mobile No.91151-54629 on said toll free number and given him complaint No.18091766380096 dated 29.9.2018. The Engineer of Onida Company from Pathankot visited his residence on 15.10.2018 and took the LED alongwith him. He had also given the Xerox copy of the bill to the said Engineer, given to him by the Ajay T.V. Centre while purchasing the same. He visited many times to O.P.No.1 for the solution of his complaint but all in vain. Hence this complaint.

3.            Notice issued to the O.Ps who appeared through their counsel and filed their written reply by taking the preliminary objections that complaint is not maintainable in the present form and the complainant has got no locus standi to file the present complaint and present complaint filed by the complainant only to harass the  O.P.No.2; the Hon’ble Forum has got no jurisdiction to try and entertain the present complaint; the complainant has not arrayed the required and necessary parties in the complaint and hence for non joinder of necessary parties the complaint requires to be dismissed with cost and the complainant has  made a  breach of terms and conditions of the warranty offered and hence for breaching acts and omission attributable to complainant the opposite party no.2 cannot be  fastened with any liability. On merits, it was submitted that complainant is very clever person as he has already checked his LED from other person before lodging the complaint before the  O.Ps. Moreover, it was well within the knowledge of the complainant that warranty of purchased articles stands vanished when the same was got checked/repaired from outer resource. The complainant handed over his defaulted LED to the Engineer of O.P. at Sarna Station and after checking its transpired that the LED was already repaired/opened by some person as the seals were broken and as such according to the rules and regulations of company, the complainant is not entitled for any warranty. Estimate of cost 3500/- for backlit replacement was given but the customer said he will come and pay the charges and collect the product. It was further submitted that terms and conditions of the standard warranty and extended warranty are binding between the complainant and O.P.No.2. After sales and service was taken care of by independent service provider who is not arrayed as a party. It was next submitted that despite repeated request the complainant has refused to collect back his product from the O.P.No.2. The complainant was adamant on free of cost repair of the product contrary to the warranty terms and conditions and hence for the illegal demands breach and refusal to collect the product by the complainant, the complainant is not entitled for any reliefs and complaint deserves to be dismissed with exemplary cost of Rs.1,00,000/-. While denying and controverting other allegations leveled by the complainant, opposite parties has prayed for the dismissal of the complaint.

4.     Alongwith the complaint, complainant has filed his own affidavit Ex.CW-1, photocopy of bill dated 3.10.2016 for Rs.19,000/- Ex.C-1,  photocopy of warranty Ex.C-2 and photocopy of SMS/MMS Ex.C-3.

5.       On the other hand, alongwith the written reply O.P. has filed affidavit of Sh.Vinod Kumar, ASM,Onida Company, Branch Office, Jalandhar Ex.OPW-1.

6.        We have heard the ld. counsel for the complainant and also gone through the file very minutely

7.         Purchase of LED proved by Ex.C-1 invoice amounting to Rs.19,000/-, C-2 is the warranty card issued by O.P.No.2, proving the warranty of 3 years on the product. Ex.C-3 proves that complainant registered his request about the defect in  LED at the customer care of the O.P.No.2 on the other hand the main objection of opposite parties in their written reply wherein objected in its preliminary objections that complainant has not made the necessary parties and moreover has breached the warranty terms and conditions of the company as he has already got checked this LED from any outside mechanics and as such has broken the warranty terms and conditions of the company. He has handed over the LED to the Engineer of O.Ps at Sarna Station and after checking it transpired that the LED was already repaired/opened by some person as the seals were broken and as such the complainant is not entitled for any warranty benefit. An estimate cost of Rs.3500/- was to be deposited for repairing the LED which the complainant did not agreed and hence filed this complaint.

8.        Now if we consider the version and pleadings alongwith documents of both the parties then we see that O.Ps have produced only one affidavit of some Vinod Kumar, ASM, ONIDA Company, Branch Office, Jalandhar, who has reiterated all the above said averments. Nowhere in his affidavit he has stated that he HIMSELF has CHECKED the LED in dispute or how he is authorized to check the LED as he is posted at Branch Jalandhar and the dispute arose at Pathankot.  Whether he was authorized by ONIDA Co. to check and inspect the LED in dispute? Rather the opposite parties should have examined the Engineer who checked the LED to prove that the seals were already broken, when the LED in dispute was handed over to them. Moreover, the plea of O.Ps is that the complainant already getting checked the LED, has breached the warranty terms and conditions, but nowhere on the file the O.Ps have produced any warranty terms and conditions to prove that complainant has breached those terms and conditions and only allegations in the absence of cogent evidence are not sufficient to prove the case of O.Ps. In this way, O.Ps have failed to justify their version.

9.      On the other hand the complainant has been able to prove his complaint by producing invoice Ex C-1 Warranty card Ex.C-2.  And complaints made to the customer care Ex.C-3 which proves that there was some kind of defect in the LED, that’s why the complainant had to approach the customer care for removal of his grievances.

10.      From the above discussion,  we are of the opinion that  O.Ps held liable for deficiency in service for not making good the LED in dispute as it was within warranty and the complainant is entitled for the relief claimed as he has felt harassed at the hands of opposite parties. Accordingly, we partly accept the present complaint and order the O.Ps to remove the defect in the LED by replacing the defective part free of cost and make it into proper functioning condition and further to pay Rs.5,000/- as compensation for harassment.

11.         Copy of the orders be communicated to the parties free of charges. After compliance, file be consigned to record. The complaint could not be decided within prescribed time due to rush of work.

Announced:                             (Shri Raj Singh)             (Rajita Sareen)
June 18, 2019.                            Member                                  Presiding Member

 MK