Orissa

Cuttak

CC/176/2021

Santosh Kumar Dash - Complainant(s)

Versus

M/s Gupta Distributor - Opp.Party(s)

P R Mishra & associates

27 Oct 2023

ORDER

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

C.C.No.176/2021

 

Santosh Kumar Dash,

S/o: Sudam Charan Dash,

At:Plot No.4D/948,Sector-10,

C.D.A,P.O:Bidanasi,Dist:Cuttack.                                    ... Complainant.

 

          Vrs.

 

1.       M/s. Gupta Distributors,

At:Sector-1,Markat Nagar,Cuttack.

     

2.       M/s. Jagannath Service(Authorized Service Centre),

71/1,Rajendra Nagar,48,Madhupatna,Cuttack-753010.

 

3.        M/s. Samsung India Electronics Ltd.,

                           6^th Floor,DLF Center,Sansad Marg,

                           New Delhi-110001.                                                           … Opp. Parties.

 

 

Present:         Sri Debasish Nayak,President.

                      Sri Sibananda Mohanty,Member.

 

Date of filing:    30.10.2021

Date of Order:  27.10.2023

 

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

For the O.Ps No.1 & 2:                                    None.

For the O.P No.3:                    Mr.K.C.Mohapatra,Adv. & Associates.

         

Sri Debasish Nayak,President.                                          

Case of the complainant as made out from the complaint petition in short is that on 25.10.2014 he had purchased one 32” HD Smart Television for his home from O.P no.1 by paying the consideration amount of Rs.15,500/-.  Within warranty period, the screen of the said TV set of the complainant developed problem which was reported to the authorised Customer Service Centre (O.P No.2). The Engineer of the O.Ps came and verified the said TV set as purchased by the complainant and found that the panel of the said TV was defective but he had not provided anything in writing to the complainant.  On 22.10.2020 the Engineer of the O.Ps had changed the panel of the said TV set.  As per the advice of the O.Ps, the complainant had also obtained extended the warranty for three years by paying a sum of Rs.4296/- for his said TV set.  Again on 6.7.2020 the display system of the said Samsung TV developed some problem which was reported by the complainant to the O.Ps on 7.7,2021 through online.  As nobody turned up, the complainant had again lodged his complaint in the Website of the O.Ps on 13.7.2021.  The service engineer was deputed by the OPs who on examination found that the display system of the said TV was defective as the panel requires to be changed.  The complainant had apprised the said service engineer that nine months back the panel was changed which again has developed the problem.  So he requested for replacement of his television set or in the alternative to refund the money of the said TV set to him.  Since then after waiting for a pretty long time, when the O.Ps did not listen to the grievances of the complainant, the complainant has come up with this case seeking direction from this Commission for replacement of his purchased LED TV or in the alternative refund of his money as paid to the O.P no.1.  He has also prayed for compensation towards his mental agony alongwith cost of his litigation to the tune of Rs.1,00,000/- from the O.Ps.  He has also prayed for any other order as deemed fit and proper.

          Together with his complaint petition, the complainant has filed copies of several documents including the invoice, purchase receipt of the said TV set, copy of repair as made, copy of the warranty card and the extended warranty card, copy of the money receipt towards the extended warranty and the e.mail chart as made with O.P.

2.       Having not preferred to contest this case, the O.Ps no.1 & 2 have been set exparte vide order dt.19.4.2022.  But O.P no.3 has however contested this case and has filed his written version wherein it is stated that the case of the complainant is not maintainable which is liable to be dismissed.  O.P no.3 has mentioned in his written version that the complainant has not adduced any evidence nor has he submitted any material particulars so as to prove that the Samsung LED TV is a defective one.  O.P no.3 has further mentioned in his written version that the defect caused in the panel of the LED TV of the complainant thereof was due to misuse/mishandle after expiry of the original warranty and during the extended warranty which according to him is not maintainable.  According to O.P no.3, the Service Engineer had never refused to provide copy of the service report as alleged by the complainant.  The O.P no.3 has however challenged about the dates of visit of the Service Engineer not to have been mentioned by the complainant. According to O.P no.3, the complainant has suppressed the material fact, he has not approached this Commission with clean hands.  It is further urged by the O.P no.3 that according to the terms and conditions of the warranty if any product is within the warranty and a defect is caused or damaged due to short- circuit, lightning, misused or mishandled then in the said case the warranty of the said product will be void for said repair only.  In the present case, O.P no.3 alleges that the panel of the LED TV was damaged/broken due to misuse or mishandle or being hit with any external object on the panel.  It is for the said reason, there is no chance of any rectification or replacement of the panel as urged by the complainant free of cost.  In this context, the O.P no.3 has relied upon a catena of decisions which are as follows:

(i)         In the case of STEREOCRAFT Vrs. MONOTYPE INDIA LTD reported in 2000(1) NCJ 59(SCDRF,New Delhi) has clearly held that when terms of warranty does not cover refund or replacement then consumer cannot claim either replacement or refund during or after the lapse of warranty period.

(ii)        In the case of Shiva Prasad Paper Industries Vrs. Senior Machinery Company reported in 2006(1) CLT 527(N.C),m the Hon’ble National Commission held that, an equipment or machinery cannot be ordered to be replacement, if it can be repaired.

(iii)       In the case of Bajaj Tempo Ltd. Vs. Shri Ajwant Singh & another reported in 2014 (3) CPR724 (NC), the Hon’ble National Commission opined that “Manufacturing defect must be proved by expert opinion”.

(iv)       In the case of Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra and others (AIR 2006) Supreme Court 1586, Arajit Pasayat,JJ has held that “Warranty conditions clearly refers to replacement of defective part not the car- Not a case of silence of a contract of sale to warranty”.

(v)        In the case of Mrs. Jennifer Alhones Vrs. M.D,M/S Ind. Auto and another reported in REF: 2001(3) CPR 149(SCDRF,Keral) has held that “Technical Question like Manufacturing Defect when pleaded by the complainant, burden is on him to adduce evidence”.

(vi)       In the case of L Alora Vrs. Groovy Communications reported in 2002(3) CPF 92(NC) held that: necessity of Expert Evidence to prove the submission of manufacturing defects in the mobile made in the complaint.

(vii)      In the case of M/S Videocon International Ltd. Vrs. K.Viyjayan & others reported in 1999(1) CPR 20 (NC) held that: for replacement of product the defect must be manufacturing and for proving manufacturing defects, expert report is essential.

As such, the O.P no.3 through his written version has contended to dismiss the complaint petition with heavy cost.

          Alongwith his written version, O.P no.3 has also filed copies of several documents including the copy of photograph showing crack lines on the display screen which is broken also in order to prove his stand.

          The complainant has also filed his evidence affidavit here in this case which when perused appears to be a reiteration of the contents of his complaint petition and nothing else.

3.       Keeping in mind the averments as made in the complaint petition and the contents of the written version of the O.P No.3, this Commission thinks it proper 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 there was any deficiency in service on the part of the O.Ps  ?

iii.        Whether the complainant is entitled to the reliefs as claimed by him?

Issues no.ii.

Out of the three issues, issue no.ii  being the pertinent issue is taken up  first for consideration here in this case.

After going through the complaint petition, the written version of O.P No.3, the written notes of submissions from the side of the complainant as well as O.P no.3 and also after perusing the copies of documents as made available from either sides together with the evidence affidavit of the complainant, it is noticed that admittedly the complainant had purchased one Samsung 32” HD Smart LED TV set for a price of Rs.15,500/- from the O.P no.1 on 25.10.2019.  It is not in dispute that after getting complaint about the problem on the display screen of the said TV set, the O.Ps had replaced the same.  It is the contention of the complainant that again on 6.7.2020, the display system of his purchased Samsung LED TV had developed some problem which he had reported online to the O.Ps on 7.7.2021 and again after contacting them telephonically on 12.7.2021 he had lodged his complaint in the Website of the O.Ps on 13.7.2021.  It is also not in dispute that after getting such complaint from the complainant, the authorised Service Engineer was deputed by the O.Ps who had inspected the TV set of the complainant at his house.  According to the complainant, the said Service Engineer has suggested for replacement of the panel of the said TV.  But the complainant wanted replacement of the total TV set or in the alternative the price of consideration as paid by him to them of Rs.15,500/-.  Out of the copies of documents as filed by O.P no.3 here in this case, the bill dated 24.7.2021 in the name of the complainant Santosh Kumar Das goes to show about the cost of repair of the LED TV in total to be of Rs.7213/-.  The O.P no.3 has filed a photo copy of one display panel of LCD mentioning therein that due to excessive external pressure on display or an impact to the LCD, the said problem had occurred which is due to the mistake of the user and thus it is out of warranty.  Although the complainant has filed his evidence affidavit in this case, the contesting O.P no.3 has not preferred to cross-examine the said witness or elucidate his plea by putting the set of questionnaires as required to that effect.  The photo copy of the broken display panel cannot be conclusively held here to be a photograph of the display panel of the TV set belonging to the complainant and do not belong to any other person.  The O.P No.3 has not filed any document to the effect that after visiting and inspecting the TV set of the complainant his Service Engineer had opined about the damage to be due to misuse.  O.P no.3 also has not examined his said Service Engineer to elucidate the same.  The decisions cited by the O.P no.3 as regards to manufacturing defect do not apply here in this case.  Thus, relying upon the decision of the Hon’ble National C.D.R.Commission as reported in 2006(I) CLT 527(NC) in the case of Shiva Prasad Paper Industries Vrs. Senior Machinery Company, as held therein “an equipment or machinery cannot be ordered to be replacement, if it can be repaired” and after evaluating the evidence as available here in this case, it is noticed that when on the second occasion there was defect noticed in the display panel of the purchased TV of the complainant and he had made correspondences to that effect vide Annexure-5 dated 13.7.2021 at 8.33 P.M, the O.P no.3 had remained silent without replying anything to the same.  Accordingly, this Commission comes to a conclusion that when there was undoubtedly warranty over the purchased LED TV of the complainant which had certain defect and when the contesting O.P no.3 has failed to establish that the said defect was only due to the misuse of the user, it cannot be said here that by remaining silent, the O.Ps do not have any deficiency in their service.   This issue goes thus in favour of the complainant.

 

Issues no.i & iii.

From the discussions as made above, the case of the complainant is definitely maintainable and complainant is thus entitled to the reliefs as claimed by him.  Hence it is so ordered;

                                              ORDER

Case is decreed on contest against O.P. No.3 & exparte against the O.Ps no.1 & 2 who are found to be jointly and severally liable here in this case.  The O.Ps are thus directed to repair the Samsung 32” Smart LED TV of the complainant free of cost.  The O.Ps are also directed to pay the complainant a sum of Rs.50,000/- towards compensation for his mental agony and harassment and also for the cost of his litigation.  This order is to be carried out within a period of 30 days from the date of receipt of this order.

Order pronounced in the open court on the 27^th day of October,2023 under the seal and signature of this Commission.  

                                                                                     Sri Debasish Nayak

                                                                                           President

                     

                                                                                                              

                                                                                        Sri Sibananda Mohanty

                                                                                           Member