JUDGEMENT/FINAL ORDER

                                                                                             Date: 16.01.2020.

Succinctly stated the facts relevant for the disposal of the complaint are that one Arnab Guha purchased a 40” LED T.V. of Vediocon Company on 31.12.2014  at a Consideration of Rs. 27,331/- only from the OP No. 2, vide Invoice No. 89333-F/14-15/3410 dtd. 31.12.2014 of (formerly) Anand & co-electronics Pvt. Ltd. renamed at present as Capital Electronics & Appliances of Kolkata. The said purchase was made online through M/S Jasper Infotech Pvt. Ltd. (Snapdeal Market Place).

Later on, the purchaser, Shri Arnab Guha transferred the ownership of the said T.V. to the complainant through a gift Deed, though unregistered executed on 03.01.2015. Shri Arnab Guha  donated T.V. absolutely to the complainant Shri Rupam Dutta out of love and affection. Though the gift Deed speaks of love and affection of the Donor towards the Donee, the complainant in Para-2 of the plaint, states the reason of such transfer to be the purchase money given by the complainant. But whatever be the basis of such transfer, the fact is this that the complainant has been the user of the T.V. in question.

Contd….P/2.

-:2:-

On receiving the T.V., it was found, after its installation, that no picture was visible and black shade appeared on the picture tube. The complainant on the very first day, lodged a complaint to the OP No. 1 at Siliguri who is the authorized service Centre of the OP No. 2 in the North Bengal region.  The complainant requested also the OP No. 2’s service centre to take the T.V. back, but the OP No.1 told the complainant that due to production of invoice late, they cannot take the T.V. back or repair without the permission of the OP No. 2-Company.

The complainant approached the OP No.2, the seller, which was recorded as customer Ref. No.SIL-1806170002, as appears from correspondence message dtd. 14.06.2017 and 1806170012 as appears from message dt. 18.06.2017. By a correspondence message dtd. 22.06.2017 the OP No.2 informed the complainant that service will be provided by one Somnath.

All those correspondence were made after the 01-year warrantee period of purchase, i.e. after 30.12.2015. However, the complainant produces Annex-D, a copy of Annual maintenance contract dtd. 05.02.2015 addressed to Take Care India Pvt. Ltd. without any postal address and not duly filled up. It is seen to be valid from 07.01.2016 to 06.01.2018 though not signed by the customer, nor is any maintenance charge/fee paid by the complainant.

However, the complainant moved Consumer Affairs & Fair Business Practice, Siliguri Regional Office, for pre-litigation mediation and the Dy. Asstt. Director-in-charge issued a notice dtd. 16.08.2017 to the complained against i.e., OP No.1, for a tripartite meeting to be held on 11.09.2017.  The OP No.1 did not appear on the scheduled date and the Siliguri regional Office of C.A. & F.B.P. dte. again served a notice dtd. 01.11.2017 on the OP service Centre for a tripartite amicable settlement in a meeting to be held on 09.11.2017. This time the service centre, i.e., OP No.1 attended. It was decided there that the OP No.1 will contact their higher authority and pursue to replace the panel of the T.V. and the complained against sought for some time to inform the office as well as the complainant.

However, the Service Centre did not make right use of the time they sought for and the Siliguri Regional Office C.A, & FBP informed the complainant vide letter dtd. 13.12.2017 that the mediation meetings failed due to non-cooperation of the OP. Hence, is the case.

OP No. 2, i.e. the seller-company contested the case by filing a written statement dtd. 02.05.2018.  It was averted, inter alia, that their liability ceases to exist after the warrantee period of 01 (one) year from the date of purchase. Since the date of purchase was 31.12.2014 and they owe no responsibility from 30.12.2015. It was further argued that the date of installation and of start of

Contd….P/3.

-:3:-

malfunctioning has not been stated by the complainant and hence it could not be ascertained whether such malfunctioning of the T.V. set occurred within the warrantee period from 31.12.2014 to 30.12.2015. Complainant has not also stated the date of lodging complaint with service centre of OP No.2. Nor did the complainant substantiate by any documentary proof that the OP No.1 is the authorized Service Centre of OP No.2. The No. 2 argued also that Shri Arnab Guha is their customer who later transferred the product to the complainant. Therefore it is Arnab Guha and not they (OP No.2) who is the seller/transferor to the complainant.  The complainant suppressed also the fact of on-line purchase through M/S Jasper Infotech Pvt. Ltd. (Snapdeal Market Place) and who has not been made a party to the case.

Record reveals that OP No. 1, i.e., service centre at Siliguri said to be of OP No. 2, seller-Company, received the notice on 25.07.2018 but did not appear before this Forum nor had taken any step. Hence the case proceeded ex-parte against OP No.1.

To prove his case, the complainant has filed the following documents:-

1. Retail Invoice/Cash Memo (Annex-‘A’).
2. Gift paper (Annex-‘B’).
3. Correspondence (Annex-‘C’).
4. AMC of the Respondent No.1 (Annex-‘D’).
5. Pre-Litigation process of Consumer Affairs & Fair Business Practices, Regional Office (Annex-‘E’ & ‘F’).
6. C.A. & FBP office order (Annex-‘G’).
7. C.A. & FBP office order (Annex-‘H’).

On the basis of the above discussion, the following points come up for determination:-

1. Whether the complainant as a transferee/Donee can be treated as consumer or not?
2. Whether OP No.2 has committed any unfair trade practice?
3. Whether there had been any deficiency of service on the part of the OP No.1?
4. Whether the complainant is entitled to get any relief?

DECISION WITH REASONS

All the 04 (four) points are taken up in seriatim.

Point No.1

The OP No. 2 in their written statement stated that the Vediocon T.V. was sold on 31.12.2014 to Shri Arnab Guha. If Shri Rupam Dutta had purchased or got transferred from their customer, then Shri Arnab Guha is the seller and the complainant is his customer i.e., transferee.

Contd….P/4.

-:4:-

Record reveals that Shri Arnab Guha purchased the said T.V. from the OP No.2. By an unregistered gift Deed dtd. 03.01.2015, the customer of the OP No. 2 donated the T.V. to the complainant. Thus the complainant is not the customer of the OP No.2 as argued by the latter.

Section 2(1) (d) (i) of the Consumer Protection Act., defines the consumer as a person who buys any goods for a consideration and includes any user of such goods other than the person who buys. Since the complainant is the user of the T.V. in question by a Deed, he is a consumer. The OP No. 2 has neither appeared before this Forum nor has challenged that Deed. Viewed from this angle, the complainant is not a customer of OP No.2 but definitely a consumer as per the C.P. Act.

Point No. 2

The OP No.2, the seller has issued a retail invoice vide its No. 89333-F/14-15/3410 dtd. 31.12.2014 on which the T.V. was purchased on a consideration of Rs. 27,331/-. The T.V. was of 40” screen (picture-tube) of Videocon Company being model No. 1VD40FZ-A101.  The Invoice was issued to Arnab Guha, i.e., not to the complainant. OP No. 2 in their W/S dtd. 02.05.2018 ensured warrantee of 01 (one) year from the date of purchase, i.e., upto 30.12.2015 executed in between the customer of the OP No.2 (seller), i.e., the purchaser and the complainant proves that the T.V. came in the hands of the complainant after 03 (three) days of purchase. The complainant stated in Para-4 of his plaint that the T.V. was not functioning soon after receiving and it was  informed to the OP No.1 on the very first day of purchase. That means that from the purchaser/customer, the complainant got a T.V. which had already been out of order.

The SMS (Annex-C) produced as replies of the OP No.2, all date from 14.06.2017 to 27.06.2017. The dates proves that the matter of defect of the T.V. was taken up after more than one and a half year though the warrantee period is one year. Even after that, the OP No.2, as stated by the complainant in Sl. -6 of the plaint, recorded the complaint lodged with them vide NO. SIL-1806170012, Response Code R-48013 and deputed one Somnath for repairing. It was a good gesture on the part of the OP No.2, for which they deserve appreciation.

The AMC (Annex-C) starts from 07.01.2016 to 06.01.2018 (for 02 years) whereas the warrantee was upto 30.12.2015. The AMC is neither signed by the customer nor by whom it was addressed to.  No fee of maintenance/plan price is seen to be paid also. Therefore, OP No. 2 is nohow concerned with the AMC.

Thus the OP No.2 cannot be said to have committed any unfair trade practice.

Point No.3

The complainant did not take up the matter of defect of the T.V. within the warrantee period of 01 (one) year from the date of

Contd….P/5.

-:5:-

purchase as appear from the reply SMS annexed by the complainant to the plaint.  No document has been furnished by the complainant in support of the warrantee and the also claim that OP No.1 is the authorized service centre of OP No. 2. While the invoice shows the price of the T.V. to the Rs. 27,331/-, the complainant claims in Para-15(A) the return of Rs. 55,900/- as price. This is a contradiction. The purchase was made on-line and the courier, through which such purchase was made, i.e. M/S Jasper Infotech Pvt. Ltd. (Snapdeal market Place) was not made a party, which is why the responsibility of post warrantee defect can be fixed on none.

The complainant, has in Para-4, of the plaint, stated that soon after receiving the T.V., the picture was not visible. That such receipt was not from the online seller is not stated anywhere in the plaint nor is it clear therein from/through whom T.V. was received. The complainant further stated that he made a complaint about this malfunctioning of the T.V. before the OP No.1 on the very first day of purchase. The invoice shows that purchase was made from Kolkata and as such it is not possible to lodge a complaint before the OP No.1 at Siliguri on the very day of purchase online. This is  another contradiction.

The complainant requested the OP No.1 to take back the T.V. but OP No.1 did not take back the T.V. due to (1) delayed production of invoice and (2) because such taking return requires on that ground, the permission of the OP No.2. The complainant also agreed in the pre-litigation mediation on 09.11.2017 that he provided the invoice through electronic media (whatsap).  But the date of sending through whatsapp has, nowhere in the plaint, been mentioned and as such it confirms the doubt about the complainant’s reporting the defect/malfunctioning of T.V. within warrantee period.

Record reveals that the OP No.1 received the summon on 25.07.2018 but they appeared neither through any authorized representative nor in person. No step was also taken by OP No.1 and hence the case proceeded ex-parte from 07.09.2018. The complainant moved the Dy. Asstt. Director of Consumer Affairs and FBP, Siliguri Regional Office for a pre-litigation mediation vide complaint Index No. 26/17-18/Slg and the OP No.1 was called vide notice No. 359/C&F/Slg R.O. dtd. 16.08.2017 for a tripartite meeting to be held on 11.09.2017. But the OP-Videocon Service Centre did not appear at the scheduled meeting. They were again served a notice upon, vide No. 505/C&F/Slg. R.O. dtd. 01.11.2017 for second time for tripartite amicable settlement in presence of Dy. Asstt. Director, Consumer Affairs & FBP, Siliguri Regional Office to be held on 09.11.2017. This time however, the OP No.1 i.e., Videocon Service Centre Siliguri, did not dare to neglect the notice and the tripartite mediation was duly held on date. It was decided there that the OP would contact their higher authority to replace

Contd….P/6.

-:6:-

the panel of the T.V. Set, for which the OP-Service centre sought for some time to provide the information to the Siliguri Regional Office of Consumer Affairs & FPB as well as to the Complainant.

But the OP-Service Centre did not make any right use of the time they sought for. They did not inform anything to the mediating office, let alone, the complainant. They miserably failed to keep their commitment given before the mediation authority. The Dy. Assistant Director of C.A. & FBP, Siliguri was compelled to drop the complaint and informed the complainant vide their No. 595/C& F/Slg R.O. dtd. 13.12.2017 that mediation meeting failed due to non-cooperation of the OP.

This point is thus answered by ascertaining that there had been deficiency of service on the part of the OP No.1.

Point No.4.

As has been pointed out, the complainant, though not a direct customer of the OP No.2, is admittedly a consumer of their product as per definition in Sec. 2 (d)(1) of the Consumer Protection Act 1986. OP No.2 preferred to keep their responsibility limited upto the sending of a written statement only. They never appeared before this Forum either in person or through any authorized representative.  They defaulted in taking any self-defence and hence the case proceeded ex-parte against them. OP No.1 received summon/notice on 25.07.2018 but they did not care to respond and dared not to contest the case which proceeded on that ground ex-parte against them also. They miserably failed to fulfill the commitment made before the pre-litigation tripartite amicable settlement on 02^nd call by the Dy. Asstt. Director of C.A. & FBP Siliguri for which they had not shown any reason also.

Thus, inspite of what is stated in reply to point No. 3 in 01^st, 02^nd and 03^rd Para thereof, the complainant is entitled to get relief as his allegation remained unchallenged. No-challenge means indirect admission. In the result, the case succeeds but in part.

As the case succeeds in part, hence, it is

O R D E R E D

that the consumer case being No. 13-S-2018 be and the same is dismissed OP No.2 and allowed in part ex-parte against the OP.No.1.

The OP No.1 is directed to fulfil the commitment made in the pre-litigation tripartite amicable settlement held on 09.11.2017 in the office of the Dy. Asstt. Director of Consumer Affairs & FBP, Siliguri Regional Office. They shall make right use of the time they themselves sought for in that meeting. It shall be obligatory on the part of the OP No.1 to make their higher authority, i.e., OP No.2 agree to arrange for repairing the T.V. to make it good and workable free of cost with necessary spare parts to the satisfaction

Contd….P/7.

-:7:-

of the complainant.  If the OP No.1 fails to fulfill such obligation they have to bear the entire responsibility including the provision of any spare parts free of cost needed for such servicing of the T.V in question. The entire exercise shall be completed within 45(forty five) days from the date of this order. There will be no other cost.

In case of default, the complainant will be at liberty to put this order into execution through this Forum as per provision of law.

Let the plain copies of this judgment/final order be supplied to the parties free of cost.

The case is thus disposed of.