This appeal is directed against the Final Order dated 16.01.2020 delivered by Ld. D.C.D.R.F., Siliguri in CC No 13 of 2018. The fact of the case in nutshell is that one Rupam Dutta registered a Consumer Complaint before the Ld. D.C.D.R.F., Siliguri under Section 11 & 12 of C.P Act, 1986 to the effect that he purchased a LED TV set at the price of Rs. 27,321/- payment on online mode from M/S Anand Electronics Pvt. Ltd of Calcutta on 3rd January 2015 in the name of Arnab Ghosh for easy communication address and delivery of the item. Subsequently, the said Arnab Ghosh executed an unregistered deed of gift in favour of the Complainant as Rupam Dutta is original customer and insurer of the TV set.
That soon after receiving the TV picture of the TV was not working and visible properly. Black spot in the screen was appearing and the TV panel sometimes was off and on shut down. He registered a complaint before the O.P No. 1 M/S Videocon Service Center at Siliguri Styled M/S Electronics Pvt. Ltd for Videocon TVs. The man of the O.P No. 1 in several times visited the house of the Complainant and approached the Complainant to have an annual maintenance contract for to removal of the said defects of the TV set. So, the Complainant had to enter an agreement in the shape of annual maintenance contract for the period from 07.11.2016 to 06.01.2018 (Annexure-D). The main of O.P No. 1 for fixing a date on 11.09.2017 and 09.11.2017 came the residence of the Complainant but they could not either repair the TV or to change the TV panel. The matter was agitated before the Regional Office of Consumer Affairs Department, Siliguri where the Deputy Assistant Director has called the O.P No. 1 and asked to cure the defects of the TV set or to change the TV set for the shake of convenience of the user of the TV but the Triparte settlement before the Regional Office of Consumer Affairs & Fair Price Department, Siliguri was not materialized due to reluctancy on the part of the O.P No. 1 and for that reason the Complainant registered the Consumer Complaint with a prayer for directing the O.P No. 1 to return back the value of the TV at Rs. 55,900/- and Compensation of Rupees 80,000/- and cost of the proceedings. The O.P No. 1 in spite of notice of the case did not contest the case. Though, the O.P No. 1 appeared in the Try Party Meeting convened by Deputy Assistant Director of Consumer Affairs & Fair Price, Siliguri on 09.11.2017 where O.P No. 1 was conceded to replace the panel of TV and to remove the defects but the O.P No. 1 the Service Center of the seller company could not discharge their obligations. Due to non-taking steps Ld. Forum was compelled to hear the case Ex-parte against O.P No. 1. The O.P No. 2 had contested the case by filing W.V and mentioned that the defect of the TV was not detected within the warrantee period of one year since the date of purchase. So, the seller of the TV that is O.P No. 2 had no liability towards the Complainant. Ld. Forum after hearing the case has observed that the Complainant was bonafide consumer as because he was user of the said TV and according to Section 2(1)(d)(1) of C.P Act, 1986. The Complainant had enough Locus standi to register the Consumer Complaint. Ld. Forum after hearing the case on merit further observed that the Complainant was able to prove of his case and entitled to get the relief as sought for. Ld. Forum was pleased to direct the O.P No. 1 to fulfil the commitment of him dated 09.11.2017 at Triparte meeting and O.P No. 1 was further directed to make their High Authority that is O.P No. 2 to become agree to arrange for repairing the TV to make it good and workable, free of cost with necessary repair to the satisfaction of the Complainant. The O.P No. 1 was further asked to carry out the said repairing and replacement work within 45 days. The Complainant was not satisfied with the ordering portion of the Judgement of the Ld. Forum and for that reason he registered the instant appeal to get proper relief which was sought for before the Ld. Forum raised in the Consumer Complaint. The notice of appeal was sent to the respondent Nos. 1 and 2 and both of them in spite of receiving the notice did not contest the appeal and for that reason the appeal was heard Ex-parte in absence of respondent Nos. 1 and 2. The appellant has conducted the hearing through Ld. Advocate Mr. J. Ganguly.
Decision with reasons
After hearing the argument and Written Note of Argument furnished by the Ld. Advocate of the appellant and after going through the documentary evidences produced before the Ld. Forum it is revealed that the said TV set was purchased on 30.12.2015 on the basis of online payment of the price and the TV set was handed over to the purchaser/user after three days since the date of purchase and from the very date of receiving the TV set the Complainant found the TV set was defective and then and then he made contact with O.P No. 1 that is the Service Center of the TV set and informed him the defect of the TV set and requested him to take proper measure so that the Complainant can enjoy in full satisfaction for the service of the said TV set. Ld. Forum has observed that as per Annexure C that is reply through SMS of O.P No. 2 towards the Complainant dated 14.06.2017 to 27.06.2018 proves that the matter of defect of the TV set was brought into notice of the seller that is O.P No. 2 after more than one and a half year of the warranty period the O.P No. 2 had shown a good gesture by deputing one Somenath for repairing the said TV set. Though, they were not duty bound to have repair of the said TV set as the warranty period was over and for that reason Ld. Forum did not cast upon the O.P No. 2 any liability to make compensation for the loss sustained by the Complainant for not getting valuable service of the TV he has purchased by paying the valuable price. This observation of Ld. Forum is not found very sound as because Ld. Forum has observed that the defect of the TV was detected within three to four days since the date of purchase and then and then it was brought into notice of the service center, who was entrusted by O.P No. 2 to entertain the complaint of the Consumer regarding defective TV set. So, the O.P No. 2 cannot escape from any liability as because its agent (O.P No.1) had flouted the duty of a seller (O.P. No.2) for not taking proper steps and as a master of such agent the seller (O.P No.2) is also liable for any wrong doing on the part of its agent. The fact remains that in spite of notice of O.P Nos. 1 & 2 about the defects of such TV set neither the said LED TV set was repaired nor it was replaced by them and finding no other alternative he availed the mediation process of Consumer Affairs Department whereon 09.11.2017 the O.P No. 1 was committed to have replacement of the panel of the TV and other accessories and spare parts to be replaced for removal such defects of the TV set. But such commitment was not fulfilled and there is another breach of trust on the part of O.P No. 1 and O.P No. 2 as the master of such agent cannot be escaped from the liability. So, the entire matter clearly indicates that O.P No. 1 and O.P No. 2 both have had negligence towards the bonafide consumer and their activities has indulged into unfair trade practice which tantamount to deficiency of service. The instant TV set was purchased on 31.12.2014 and since then a bonafide consumer could not avail the proper service from the said TV set and for that reason the Complainant as a bonafide consumer should have to be properly compensated whereas the Ld. Forum in the ordering portion of the Judgement only observed the view of the mediation authority. Ld. Forum only directed upon the O.P No. 1 to fulfil the commitment made in the prelitigation Triparte amicable settlement before the Consumer Affairs Department of Siliguri held on 09.11.2017. No proper relief was granted in favour of a bonafide consumer and for that reason the ordering portion of the Ld. Forum should be modified to protect the interest of a bonafide consumer.
Thus, the appeal has got some merits to modify or to make any change in the order of Ld. Forum in the appellate stage as follows.
Hence, it’s ordered
That the appeal be and the same is hereby partly allowed on merit without any cost. The ordering portion of the Judgement and Final order of the Ld. D.C.D.R.F., Siliguri dated 16.01.2020 in CC No 13 of 2017 is modified to that effect that both O.P No. 1 and O.P No. 2 are liable for the loss sustained by a bonafide Consumer and for that reason they are jointly and severely liable to return back the consideration money of the defective TV set sold out of O.P No. 1 to the Complainant cum user of the TV set to the tune of Rs. 27,331/- after getting return back the said defective TV set from the Complainant concerned within two months from this day. They are also jointly and severely liable to make payment of compensation of Rs. 10,000/- and to make payment of the same amount to the Complainant within two months. The O.P No. 1 and O.P No. 2 are further directed to pay Rs. 5,000/- as litigation cost to the Complainant within two months. If, the O.P No. 1 and O.P No. 2 failed to comply the order of this Commission within two months then 8% per-annum as interest will be imposed over the total awarded money and the Appellant/Complainant will be at liberty to put the award into execution before the Ld. Forum as per provisions of law.
Let a copy of this order be supplied to the parties free of cost and the same to be communicated to the Ld. D.C.D.R.F., Siliguri for doing the needful.
