OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.12/13
Present:-
1) Md.Sahadat Hussain, A.J.S. - President
2) Smti Archana Deka Lahkar - Member
3)Sri Jamatul Islam - Member
Sri Pranab Jyoti Goswami, - Complainant
S/O Sri Arun Ch.Goswami.
Department of EEE, IIT Guwahati
Guwahati-781039,Kamrup,Assam
Resident of Quarter No.B-46
IIT Guwahati, Residential Complex
Guwahati-781039,Kamrup,Assam
-vs-
1) M/S Kamakhya Solution & Services - Opp.parties
Neelkamal (Building)above ICICI Bank Ltd.
Zoo Tin-Ali,R.G.BAruah Rd,Guwahati (Assam
Kamrup (M) Assam
(Service Centre (Guwahati) of Nikon India Pvt.Ltd.
2) M/S Nikon India Pvt.Ltd.
Plot No.17
Sector 32, Institutional area
Gurgaon-122001, Hariana
3) Hi-Fi
Vision India, Labanya Plaza,
Near Namghar, G.N.B.Road,
Silpukhuri,
Guwahati-781003(Assam
(Dealer of Nikon India Private Ltd.)
Appearance-
Learned advocate Mr.Chandra Sekhar Roy for the complainant.
Learned advocate Smti Gitumoni Deka for the Opp.Party No. 1 .
Date of argument- 6.2.18
Date of judgment- 6.3.18
JUDGMENT
This is a complaint u/s 12 of the Consumer Protection Act, 1986
1) This complaint filed by Sri Pranab Jyoti Goswami against Kamakhya Solution and Services, M/S Nikon India Pvt.Ltd. Hariana, Hi-Fi , Silpukhuri was admitted on 8.2.2013 and notices were served on all the opp.parties and Opp.Party No.1 filed their written statement, but Opp.Party No.3 found absent without step and accordingly, the case against Opp.Party No.3 is proceeded on exparte vide this forum’s order dtd.26.9.11. The complainant filed his evidence on affidavit on 26,9.13 and he was cross-examined by Opp.Party No.1 & 2 side on 22.7.14. Thereafter, the Opp.Party No.1 & 2 side filed evidence of affidavit of Sri Arun Kr.Jitani and Sri Tarun Siwach and both of them were cross-examined by the Ld.counsel of the complainant. Thereafter, Chandra Sekhar Roy filed his written argument for the complainant on 1.3.17 and Ld.advocate B.Gupta also filed written argument on behalf of Opp.Party No.1 & 2 on the same day. We have heard oral argument of Ld. advocate Mr.Chandra Sekhar Roy for the complainant and of Ld.advocate Smti Gitumoni Deka for Opp.Party No.1 & 2, and today we deliver judgment which is as below-
2) The complainant’s case in brief is that he had purchased a Nikkon lens AF-S 300 mm f/4D IF-ED (Black),serial No. 319297 from Opp.Party No.3 on 16.3.11 vide Invoice No. 3281 dtd.16.3.11, but after 16/17 months of purchase of the same, he had noticed small fungal growth inside the lens and he deposited the lens to Opp.Party No.1 for cleaning of the fungal growth vide service order number GWT 000552 dtd. 20.8.12, and the representative of Opp.Party No.1 informed him that lens would take around 15 days as servicing SLR facility is not available at Guwahati. On 10.9.12 Opp.Party No.1 informed him to collect the lens as per sent back from Gurgaon after servicing; and he then went to Opp.Party No.1 and tested the lens and they found that the said lens does not able to focus neither in the auto mode nor in the manual mode and he also found that there were more foreign /dust particles lodged in between the elements of the lens, and the lens were in worse condition than what he had sent and then he refused to take the delivery the same and asked them to repairing his lens and he also informed Opp.Party No.2 about the matter . In the mean time ,Opp.Party No.1 issued Invoice No. INV/GWD/00552 dtd.10.9.2012 for Rs.1348.32 against the aforesaid order dtd. 20.8.2012, and on the same day Opp.Party No.2 through mail informed him that ,they instructed their service team to send lens back for inspection. On 26.9.12 Opp.Party No.1 again informed him to collect the lens from them as it have arrived from Gurgaon after rectification, and accordingly , he went to collect lens on 29.9.12 and upon testing he found that focusing problem had been desolved. However the foreign particular were inside the lens and then he had telephonic conversation with Opp.PartyNo.2 and the latter informed him that same amount of dust/foreign particular were remain thenafter through cleaning and it would not affect the image quality and then being compelled he took delivery of the lens by paying Rs.1,348.32 against invoice No.INV/GWT 300552 dtd. 10.9.12 . On 13.3.12 he was in out- door assignment and was shooting with lens mounted on a tripod, but surprisingly, the lens body dismantled on its own without any mishandling or shock and it was left dangling from the mount in a very precarious condition, and have it not been for the tripod mount it would have surely fallen to the ground shattered to pieces. On closes inspection, he found that due to poor workmanship the back cover of the lens had completely detached from the rest of the body and the head of most of the screws were in a pathetic condition and he informed Opp.Party No.1 through Opp.Party No.3 that such incident had happened and asked them for their suggestion, but find no response from them , he wrote a mail to Opp.Party No.2 via “nind support” alongwith photographs of the lens by replacing the lens with new one and then Opp.Party No.2 directed him to deposit the lens and he then deposited the lens to Opp.Party No.1 on 20.10.12 vide order No. GWT 001291 dtd.20.10.12 whereas it was mentioned initial observation on the product on no mishandling /temperature of the product, no battery leakage found and no non-standard accessories found . No repaired by unauthorized third party found. No Rust/Fungus/Sand, no Damage on Body, no violation on other warranty provision and no scratch on body found. On 31.10.12 he was again asked to collect the lens from Opp.Party No.1 and then he went to Opp.Party No.1 on 2.11.2012 and found that the lens was sent to Opp.Party No.1 from service centre of Opp.Party No.2 that the front and rear caps and soon the condition of the lens he refused to take delivery of the lens and he informed Opp.Party No.2 through mail about the fact on 10.11.2012 and asked them to replace the lens. On 14.11.12 he received a call from Opp.Party No.1 to collect the lens as the caps arrived from Gurgaon and 15.11.12 he received a mail from Opp.Party No.2 alongwith two attached photographs mentioning thereon that they have replaced the spare part and after final inspection, the product was in perfect condition. On 18.11.12 he again informed Opp.Party No.2, about the aforeasaid facts and he also refused to accept the said lens , but asked Opp.Party No.2 to replace the lens and Opp.Party No.2 sent a reply on 19.11.12 against his mail dtd. 18.11.12 wherein it is stated that they are giving him six months warranty for the problem which he had faced . But he refused to accept the same informing Opp.Party No.2 that the lens had been mishandling by representative of Opp.Party No.1 and Opp.Party No.2 , but Opp.Party No.2 vide e.mail dtd. 20.11.12 informed him that as per his demand replacement is not covered under the warranty. He also received one letter dtd.31.12.12 from Opp.Party No.1 on 7.1.13 requesting him to collect the lens from their centre. Opp.parties failed to settle his bonafide claim which tantamounts to gross deficiency of service and unfair trade practice, and therefore opp.parties are liable to compensate him for loss and damage suffered by him, and they are liable to replace the lens with new one and to pay Rs.50,000/- as compensation for putting him mental agony.
3) The pleading of the opp.party No.1 , Kamakhya Solution and service is that complainant had deposited Nikkon Lens (Serial No. 319297) to them on 20.8.2012 for the purpose repair which was booked against Service Order No. G.W.T.-000552 with the remark “Fungus in the Lens, need to clean and service (inspection needed)” and they sent the lens to Opp.Party No.2 for repairing the same, as they are not trained for lens repairing and Opp.Party No.2 sent it book to them after repairing ; and then they informed the complainant to collect the same from their service centre on 10.7.2012 and the complainant collected the same being satisfied after inspecting it and he also signed the service invoice and they also raised Rs.1348/- from the complainant as lens cleaning charge, but the complainant again on 13.9.12 deposited it to them; and they also again sent it to Opp.Party No.2; and Opp.Party No.2 repaired the lens free of cost and sent it back to them on 29.10.2012 and they informed the complainant to collect it and the complainant visited their service centre , but refused collect the camera without any lawful justification even Opp.Party No.2 has given six month warranty on the repairing done . The complainant used it on a tripod and the same must have been broken due to mishandling and negligence before sending it to Opp.Party No.2 for the last chance. The demand of replacement of the lens cannot be entertained as replacement was not covered under the warranty . The lens was repaired by Opp.Party No.2 in perfect condition and there was no mishandling from the end Opp.Party No.1. They are not guilty of deficiency of service towards the complainant, nor they caused harassment and mental agony to the complainant and the complaint is liable to be dismissed.
4) The pleading of the opp.party No.2 is that they are importer of Nikon Imaging Products having its registered office in the Industrial Area, Gurgaon, Hariyana , and Opp.Party No.3 is their authorized dealer. The complainant purchased NIKON AF-S 300 mm F/4d IF-ED (Serial No. 319297) from Opp.Party No.3 their authorized dealer on 16.3.2011, after fully satisfying himself regarding description, functions and the sale price of the said camera. But on 20.8.12 he deposited the said lens with the service centre for its repair and Opp.PartyNo.1 collected the lens for the issue fungus in the lens and mentioned in the remarks Fungus in the lens, need to clean and service (Inspection Needed) and the lens was booked against Service Order GWT-000552 and as Opp.Party No.1 was not trained for lens repairing . They sent the lens to them (Opp.Party No.2) in their Head Office, Gurgaon and on inspection fungus was detected in the lens and as fungus is not covered under warranty. On August 28, 2012 quotation call was given to the complainant mentioning the state of element on which fungus was accumulated and estimate was approved just for cleaning the lens element by the complainant on 1.9.2012 and after receiving his consent the fungus was cleaned to the maximum and the same was sent back to Opp.Party No.1 with a invoice No. GWT-000552 for Rs.1348/- and complainant collected the lens paying the required dues and he also properly inspected the camera and collected it after complete satisfaction and he even marked his acceptance on service invoice ; but on 13th March,2012 he again deposited the camera for the same issued to Opp.Party No.1 verbally complained about working on auto focus in the lens and the lens was again booked against service order GWT-000836 wherein it is remarks “ Fungus and Dust in lens Need to Clean Focus Problem”. During previous cleaning the extent of fungus of lens was shared with the complainant and was clearly intimated with to make the same perfectly clean the element need to be replacing , but he refused to replacing the element due to high cost involved . During re-inspection on 18.9.12, the service team did not acknowledge any issue with the Auto-Focus as same was working fine , still necessary adjustment was done by their service team. They for the issue of Dust , Fungus on element on the lens , they as a onetime gesture replace “01st Lens Housing Unit” free of cost and sent it back to Opp.Party No.1 and the complainant collected the lens from Opp.Party No.1 . As lens was working perfectly fine, that is , satisfaction , he marked his acceptance on Service Order GWT-000836 and so there was no point of any dust particles left inside the lens and at the time of delivery he was informed that for the issue of dust/fungus “ 01st Lens Housing Unit” has been replaced. Thereafter, on 20.10.2012 complainant re-deposited the lens in damage condition with Opp.Party No.1 and it was booked against job GWT-00291 for the issue for the issue of “Back cover of the lens was broken” and as Opp.Party No.1 not trained for repairing the lens, they sent the lens again to them at their Gurgaon office on 27.10.10 and on inspection it was found that lens is Drop Damage and the lens was broken in two pieces and the present defect occurred due to mis-handling of the said lens and same was intimated to the complainant and he also admitted that he was using the equipment on tripod stand and the present defect was result of his own negligence . The complainant marked various e.mails to them on disagreement for drop damage, denying his earlier admission of same however this condition is accepted by him in para 7 of the complaint whereas the problem arised because of mis-handling of the camera by the complainant himself, and they considering his repeated request, they onetime gesture replaced the rear fixed tube and screws of lens free of cost to make the same in perfect condition and then it was sent to Opp.Party No.1 on 29.10.12and Opp.Party No.1 informed the complainant to collect the same from them on 31.10.2012. They had not been any deficiency of service or any unfair trade practice, nor caused any financial loss to the complainant, but complainant is trying to make some false and fake stories by refusing to accept the lens. The ground raised by the complainant are devoid of any merit and the complaint is liable to be dismissed .
5) We have perused the evidence of both the parties and it appears to us that both sides’ admit that the complainant had purchased a Nikkon lens AF-S 300 mm f/4D IF-ED (Black),serial No. 319297 from Opp.Party No.3 (Hi-Fi , Silpukhuri) on 16.3.11 vide invoice No.3281 dtd.16.3.2011 and after using the lens for 16/17 months he noticed small fungal growth inside the lens and he then deposited the said to M/S Kamakhya Solution and Services,( Opp.Party No.1) for cleaning the said fungal growth on the internal elements vide service order number GWT 000552 dtd. and the lens was sent to Gurgaon ,because the facility of service SLR Lens is not available in Guwahati and the Lens was sent to Opp.Party No.2 and Opp.Party No.2 sent back the Lens after cleaning and complainant was informed by the representative of Opp.Party No.1 to collect the Lens and accordingly the complainant went to Opp.Party No.1 to collect the Lens, but he found that said Lens was not able to focus neither in the Auto mode or nor in the Manual mode and he , on close inspection, found foreign/dust particles lodged in between the elements of the Lens and he refused to take delivery of the Lens from Opp.Party No.1 ,and then he contacted with Opp.Party No.2 and latter informed him that they instructed their service centre to send the Lens back for instruction; and thereafter on 26.9.12 the complainant was informed by representative of Opp.Party No.1 to collect the Lens from their office as it had arrived back from Gurgaon after rectification, and then he on 29.9.12 he went to collect the Lens , but found that foreign particles were still inside the Lens and then he talked to service engineer of Opp.Party No.2 and then informed him that some amount of dust and foreign particles remained even after the most through cleaning, and it would not affect the image quality; and then he took delivery of the Lens by paying charge of Rs.1348.32/- against the Invoice No. INV/ GWT 000552 dtd. 10.9.2012.
6) The complainant states in his evidence that on 13.10.2012 , while he was doing outdoor shooting with Lens mounted on a tripod, he surprisingly found that the Lens body dismantled on its own without any mis-handling or shock and if it would not had been for the tripod, it would have fallen on the ground and shattered to pieces; and he found that due to poor workmanship the back cover of the Lens had completely detached from the rest of the body and the head of most of the screws were in pathetic condition, and he then informed Opp.Party No.1 through Opp.Party No.3 about the said incident, and finding no response from them ,he again talked to Opp.Party No.2, and Opp.Party No.2 vide e.mail dtd. 16.10.12 asked him redeposit the lens; and then he redeposited the lens to Opp.Party No.1 on 20.10.12 vide service order No.GHT 00129 wherein it was mentioned that initial observation on product no mis-handling /tempering of product , no water logged/ solid product, no battery leakage found and no non-standard accessories / part used and no repairmen was done by unauthorized third party and no Rust/Fungus/ Sand/ no damage on body, no violation of warranty provision, no noticeable scratch on body were found, but back cover of the lens found broken . Thereafter , he was again on 31.10.2012 asked to collect the lens from Opp.Party No.1 and he collected the same on 2.11.13. This statement was not denied by opp.party side. Thus, it is found that the repairing of the lens was done by Opp.Party No.2 twice which was done on being sent by Opp.Party No.1 after depositing the same by the complainant.
7) Now, next question is that whether after second repairmen the lens of the complainant was completely clean and without any breakage,and if any breakage meted to the said lens , who is responsible for the said breakage ? After perusing the evidence it appears to us that after second repairing of the lens (washing the lens ), the complainant received the lens from Opp.Party No.1 without any objection. So that conduct of the complainant infers that while he took the delivery of the lens from Opp.Party No.1 after second repairing he found the lens was in cleanstate and it was out of any breakage.
We have also perused the evidence of the complainant and found that the complainant himself admits in his complaint that on 13.10.2012, while he was in out-door consignment and was shooting with lens mounting it on a tripod, the lens was dismantled on its own without any mishandling or shock, and it was left dangling from the mount of the tripod in a very precarious condition and had it not been on the tripod mount it would have surely fallen to the ground shattered to the pieces. The complainant side’s plea is that due to poor workmanship , the back cover of the lens had completely detached from the rest of the body and the most screws were in pathetic condition and then he reported the matter to Opp.Party No.1 through Opp.Party No.3 but that Opp.Party No.1 did not response . He then sent a mail to Opp.Party No.2 alongwith photograph of the incident and requested Opp.Party No-2 to replace the lens with a new one, and Opp.Party No.2 directed him to re-deposit the lens and then he deposited the lens to Opp.Party No.1 on 20.10.2012 vide service order No. GWT 001291 dtd. 20.10.2012 and when he again visited Opp.Party No.1 to receive the lens he found that the lens was without front and rear caps and then he refused to take delivery of the said lens and he also reported the matter to Opp.Party No.2 ; and on 10.11.2012 vide mail asked to replace the lens and on 14.11.2012 he received a call from Opp.Party No.1 to collect the lens as the caps has arrived from Gurgaon and he also received a mail from Opp.Party No.2 on 15.11.2012 where it was stated that they had replaced the spare parts after final inspection , the product was in perfect condition, but he, on 18.11.2012, informed Opp.Party No.2 about the fact beginning to end and refused to accept the lens , but asked Opp.Party No.2 to replace the lens and then Opp.Party No.2 vide e.mail dtd. 19.11.2012 informed him that they repaired the lens and they can also insure that they are giving him six months warranty for the problem which he has faced and asked him to collect the lens after proper checking, but he requested Opp.Party No.2 to replace the lens with new one and then Opp.Party No.2 replied via e.mail dtd. 26.11.2012 that the demand of replacement is not covered under the warranty and thereafter he received one letter dtd. 31.12.12 asking him to collect the lens from them,but he insisted the demand of replacement . From these statement of the complainant it appears to us two points- firstly that after second repairing the complainant received the lens without any breakage and when he put the lens the mount of a tripod by him in a out-door shooting on 13.10.2012 the body of the lens dismantled and secondly , after that incident of dismantling Opp.Party No.2 again repaired the said lens and Opp.Party No.1 and 2 both asked him to collect the lens from the center of Opp.Party No.1, but the complainant refused to receive the said from Opp.Party No.1, but insisted on demand of replacement . Thus, it is clear that after third repairment, the complainant wilfully refused to inspect and collect it .Thus this conduct of the complainant infers that he refused to collect the lens after third repairmen without any just reason. Therefore, it shall be presumed that the lens might be in workable condition after third repairmen. We have also found that the dismantling incident have taken place after second repairing while the complainant put the lens on the mount of a tripod in an out -shooting ,which he says that the lens automatically dismantled, but he has failed to adduce any evidence to prove that on that day the lens automatically dismounted . Therefore , it shall be presumed that the lens broken down falling from the mount of tripod while the complainant was in out-door shooting due to his misholding and negligence and for such breakage none of the opp.party is responsible. It is also found that after such incident also the opp.parties repaired the lens in a good gesture to the complainant, but the complainant has refused to collect the lens after that repairing and insisted on his demand of replacement of it. In these factual situation, we must hold that the complainant has no cause of action against the opp.parties for filing this complaint and hence he is not entitled to replacement of the lens for new lens or to any relief .
8) Summing up our discussion as above we hold that the complaint has no merit .Hence the complaint is dismissed on contest. The complainant may collect the lens, at whatever stage it is now, from the Opp.Party No.1 if he is willing so.
Given under our hands and seal of this forum on this day 6th March, 2018
(Smt Archana Deka Lahkar) (Md.Jamatul Islam) (Md.Sahadat Hussain) Member Member President
