BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 16TH December 2010
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR.K : MEMBER
COMPLAINT NO.26/2010
(Admitted on 23.1.2010)
Shekar Bolar,
Sandeep Nivas,
Behind Sri Rama Mandir,
Yeyyadi,
Mangalore 575 008. …….. COMPLAINANT
(Advocate for Complainant:Sri A.Nagaraj.N)
VERSUS
- Ms Philips Electronics India Ltd.,
Registered Office,
7, Justice Chandra Madhab Road,
Kolkatta 700 020.
- M/s. Girias Investment Pvt. Ltd.,
Nalpad Apsara Chambers,
K.S.Rao Road,
Hampankatta,
Mangalore-575 001. ….. OPPOSITE PARTIES
(Advocate for Opposite Parties: Sri Sudarshan M.Rao)
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
This complaint is filed under Section 12 of the Consumer Protection Act alleging defective in goods as against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainant submits that, he had purchased a Philips 29” Colour TV at a cost of Rs.31,000/- on 5.5.2005 from Opposite Party No.2.
It is stated that, on 29.9.2009, as usual on viewing the TV, the TV was not functioning. There was neither picture nor sound. Immediately, the Complainant contacted the dealers and informed about non-functioning of the TV. On 2.10.2009, a technician came to the house of the Complainant and opened the TV and informed that both the picture tube and power Circuit Board (PCB) are out of order and TV set is dead, it cannot be repaired. On 7.10.2009, the Complainant visited the Opposite Party and discussed the matter, and inturn the Opposite Parties also issued a certificate stating that the TV is not repairable condition. Thereafter, on 26.10.2009, the Complainant issued a letter to the manufacturer by informing the above defect. It is stated that, the above said defect found within a short span of 4½ years and requested the company to replace the TV set but the Opposite Parties failed to comply the same. Hence, the above complaint filed under Section 12 and 13 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to replace by a new TV set having same features or in the alternative improved version viz., LCD TV or refund of the cost of damaged TV and also pay compensation and cost of the proceedings.
2. Version notice served to the Opposite Parties by RPAD. Opposite Parties appeared through their counsel filed version denied the allegations made in the complaint and contended that the complaint is not maintainable, the same is filed beyond the limitation period prescribed under the Consumer Protection Act i.e. all most five years from the date of purchase. And it is further submitted that, the above said product purchased almost five years i.e. on 5.5.2005 and the same is not covered under the terms and conditions of the warranty. Further, it is stated that, the defects may occur as the customer does not read the manual and use the product with limited knowledge which effects the product and the above defect cased due to faulty way of handling and it can be due to unforeseen event like the variation or fluctuation in electric currents, Thunder storms and Lighting, moisture etc and contended that there is no deficiency on their part and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the complaint is barred by limitation as prescribed under Section 24 of the C.P. Act?
- Whether the Complainant proves that the T.V. purchased by him on 5.5.2005 from the Opposite Party No.2 suffers from manufacturing defect?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Sri Shekar Bolar (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex.C1 to C8 were produced for the Complainant as listed in the annexure. One Sri.P.P.Vijesh (RW1), authorized representative of the Opposite Party No.1 filed counter affidavit and answered the interrogatories served on him. Ex.R1 was produced for the Opposite Parties as listed in the annexure. Both parties are produced notes of arguments.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i) : Affirmative
Point No.(ii): Negative.
Point No.(iii) to (iv): As per the final order.
REASONS
5. POINT NO. (i):
The first plea is raised by the Opposite Parties in this case is that, the complaint is not maintainable as the complaint is filed beyond the limitation period as almost five years from the date of purchase. No doubt the above said TV purchased on 5.5.2005. But the defect found in the TV set on 29.9.2009 for the first time. The cause of action arises not from the date of purchase but from the date of defect found in the T.V. set. The defect found in the TV set was on 29.9.2009 and the complaint came to be filed before this FORA on 23.1.2010 which is within the limitation prescribed under Section 24 of the Consumer Protection Act. Hence, the complaint is maintainable and point No.(i) held in favour of the Complainant.
POINTS NO.(ii) to (iv):
As far as defect is concerned, the Complainant sworn to the fact that, the TV set purchased on 5.5.2005 is a defective and not repairable. When a Complainant alleges manufacturing defect, the entire burden lies upon the Complainant to establish that the defect found in the TV set is a manufacturing defect and not otherwise. The Section 13 sub clause 1(c) defined as under:
“(c) where the Complaint alleges a defect in the goods which cannot be determined without proper analysis or test of the goods, the District Forum shall obtain a sample of the goods from the Complainant, seal it and authenticate it in the manner prescribed and refer the sample so sealed to the appropriate laboratory along with a direction that such laboratory make an analysis with a view to finding out whether such goods suffer from any defect alleged in the Complaint or suffer from any other defect and to report its findings thereon to the District Forum within a period of forty-five days of the receipt of the reference or with such extended period as may be granted by the District Forum;”
Similarly, in the instant case, the Opposite Parties specifically denied the manufacturing defect alleged by the Complainant. Under that circumstances, the Complainant should establish the manufacturing defect by producing a expert opinion. In the instant case, we observed that, the defect was found for the first time on 29.9.2009. The complaint of the Complainant was duly attended by the Opposite Parties and the certificate was issued to the Complainant. When that being the case, it is the duty of the Complainant to establish that the TV purchased by him suffering from inherent manufacturing defect. Unless the TV purchased suffers from inherent manufacturing defect, the question of replacement or return of its price does not arise. In the instant case, the TV set worked without any interruption till 29.9.2009. The Complainant had not pointed out a single defect complained off and rectified are due to manufacturing defect in this case. Further the Complainants neither have procured experts opinion nor examined any experts to establish that the defects pointed out are due to inherent manufacturing defect of the TV set. Therefore, in the absence of any experts opinion, which the Complainant’s could have procured, it is not possible to agree with the Complainant that the TV went out of order and did not function on the aforesaid date and ultimately the TV is not repairable due to manufacturing defect. Further we have observed that, the above said TV set had a warranty for period of one year after the date of purchase against the defects. The above warranty has been already expired. When that being the case, in the absence of any expert opinion the complaint filed by the Complainant cannot be c1onsidered. In view of the above discussions, we hold that, the Complainant miserably failed to establish the manufacturing defect in the TV set purchased by him. Hence, the complaint has no merits deserves to be dismissed. No order as to costs.
6. In the result, we pass the following:
ORDER
The complaint is dismissed. No order as to cost.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 8 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 16th day of December 2010.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Sri Shekar Bolar – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 5.5.2005: Original Invoice cum receipt for Rs.31,000/- issued by Girias Investment Pvt. Ltd.,
Ex C2 – 7.10.2009: Original letter issued by M/s Audio Video Electronics, Mangalore.
Ex C3 – 26.10.2009: Letter addressed to Philips India Electronics Ltd, Kolkatta.
Ex C4 – 27.10.2009: Original of Postal Receipts.
Ex C5 – 26.10.2009: Original Postal Acknowledgements(2 in Numbers).
Ex C6 – 19.11.209: Original Letter bearing no reference received from Philips electronic India Ltd.
Ex C7 – 26.12.2009: Letter addressed to the Complainant by M/s Audio Video Electronics, Mangalore.
Ex C8 – 11.1.2010: Copy of letter addressed by the Complainant to
M/s Audio Video Electronics, Mangalore with copy endorsed
Philips Electronics India Ltd., along with original courier
receipts (2 in numbers).
Witnesses examined on behalf of the Opposite Parties:
RW-1: Sri.P.P.Vijesh, Authorized Representative of the Opposite Party No.1.
Documents produced on behalf of the Opposite Parties:
Ex R1: 29.4.2010: Authorization letter issued by Opposite Party No.1
in favour of Mr.P.P.Vijesh.
Dated:16.12.2010 PRESIDENT
