DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.265 of 2016
Date of institution: 10.05.2016 Date of decision : 01.03.2018
Jagdish Ram aged about 50 years son of Shri Amarchand R/o village Nada, Tehsil and District SAS Nagar, Mohali.
…….Complainant
Vs
1. M/s. Ashoka Enterprises, Shop No.4-5, Naya Gaon, District SAS Nagar, Mohali through its Proprietor.
2. M/s. MIRC Electronics Ltd., ONIDA House, G-1, M.I.D.C. Mhakali Caves Road, Mumbai 400093 through the General Manager.
……..Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Shri Amrinder Singh Sidhu, Member
Mrs. Natasha Chopra, Member.
Present: Sh. Pankaj Sharma, counsel for the complainant.
OP No.1 Ex-parte.
Sh. Shivam Grover proxy cl. for Sh.Abhinandan Pandhi, counsel for OP No.2.
Order by :- Shri G.K. Dhir, President.
Order
Complainant purchased one ONIDA LED TV (32’ MARQUE Series) for Rs.22,990/- through bill dated 04.03.2015 from OP No.1. When packing box of said LED TV was opened, then on removal of the LED TV therefrom, it was discovered that the same was broken from its bottom and was not in working condition. Thereafter complainant immediately visited OP No.1 for informing its officials about broken condition of LED TV. The officials suggested complainant to bring the defective LED TV and take new piece after some days because they will send it to OP No.2 for replacement. It was also disclosed that replacement will be done by OP No.2. Later on complainant visited OPs, but no satisfactory reply given and nor the defective LED TV was replaced. Legal notice through counsel even served on 14.03.2016, but no effect and as such by pleading deficiency in service on part of OPs, prayer made for directing OPs to replace the defective/broken LED TV with new one or to refund the amount of Rs.22,990/- with interest @ 18% per annum from the date of purchase. Compensation for mental tension and harassment of Rs.25,000/-, but litigation expenses of Rs.10,000/- more claimed.
2. In reply submitted by OP No.2 it is claimed that all the allegations leveled in the complaint are incorrect and besides complaint does not disclose any deficiency in service on part of OP No.2. Rather it is claimed that OP No.2 has always maintained highest standard of professional conduct in manufacturing its products. Besides it is claimed that complainant has not brought on record evidence to prove and corroborate that LED TV in question was in damaged or broken condition. Moreover, it is claimed that there is no privity of contract between complainant and OP No.2. Even complainant has no cause of action against OP No.2. In view of involvement of intricate questions of law and facts, elaborate evidence required and as such the matter cannot be decided in these summary proceedings. Suppression of material facts by complainant also alleged. On the bill dated 04.03.2015 issued by OP No.1, it is clearly mentioned that said OP does not own responsibility after goods leave the premises. Further an endorsement on the bill itself is made that received goods are in working and good condition. Complainant after satisfying himself about the product and its functioning purchased the same from OP No.1. Complainant has not lodged even a single complaint with OP No.2 either telephonically or through call centre and as such story of breaking of LED TV alleged to be concocted one. Complaint alleged to be filed for harassing OP No.2. Even it is claimed that complainant estopped by his act and conduct from filing the complaint. OP No.2 has not received any LED TV from OP No.1 and other averments of the complaint denied.
3. OP No.1 is ex-parte in this case.
4. Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to C-4 and thereafter his counsel closed evidence. Counsel for OP No.2 tendered affidavit Ex.OP-2/1 and then closed evidence.
5. Written arguments in this case submitted by complainant as well as by OP No.2. Oral arguments of counsel for parties also heard and records gone through.
6. Not only contents of affidavit Ex.CW-1/1 of complainant, but even invoice bill Ex.C-1 establishes that complainant purchased the ONIDA LED TV in question from OP No.1 by paying price of Rs.22,990/- on 04.03.2015. That LED TV was found in broken condition from the bottom and was not working and that is why complainant approached OP No.1, on which officials of OP No.1 suggested as if the complainant after few days will be given a defect free LED TV. It is the claim of complainant put forth through complaint as well as affidavit and legal notice Ex.C-2 served on OPs through postal receipts Ex.C-3 and C-4 that defective LED TV has not been replaced despite numerous visits by him. In view of consistent stand of complainant, it has to be inferred reasonably that actually the LED TV purchased by complainant from OP No.1 was in broken condition from the bottom and that is why complainant had to approach OP No.1 and 2 by paying visits to OP No.1 and then by sending legal notice Ex.C-2. No one will complain about the broken condition of bottom of purchased LED TV unnecessarily and as such version of complainant is believable that on opening of packing box of LED TV, he discovered the LED TV in broken condition from its bottom.
7. Even if on bill Ex.C-1 mention made that goods once sold are not returnable or exchangeable, but despite that OP No.1 seller cannot escape from liability in case he hands over the broken product to its customer because the customer will never pay for a damaged or broken LED TV. Even if condition No.1 on invoice Ex.C-1 may be there that goods once sold will not be returnable or exchangeable, despite that complainant entitled for replacement of broken LED TV with new one of same model or with a LED TV of equal worth of Rs.22,990/-. In case condition No.1 endorsed on Ex.C-1 enforced, then it will be harsh and oppressive condition, which will give undue benefit to the seller over the purchaser. It is the seller who is to ensure that the goods sold by him are in good working condition because he accepts the price of the defect free sold product and not of the defective or damaged product. In case terms and conditions mentioned at Sr.No.1 and 3 of Ex.C-1 given effect to, then every seller will shirk his responsibility of handing over defect free products to its customers. As such in view of harshness and oppressiveness of condition No.1 to 3 endorsed on Ex.C-1, the contract in that respect cannot be enforced.
8. Privity of contract virtually was between complainant and OP No.1 for purchase of LED TV in good condition because the price through invoice Ex.C-1 was paid by complainant to OP No.1 and as such OP No.2, the manufacturer, cannot be fastened with liability because it was responsibility of OP No.1 to handover or deliver undamaged defect free LED TV to its customers. Even if complaint by complainant with OP No.2 might have not been lodged, despite that he sent legal notice Ex.C-2 through postal receipts to both OP No.1 and 2 and that in fact is also a complaint virtually. Such course adopted by complainant after he failed to get the grievance redressed from OP No.1 despite assurance of replacement, and as such complaint deserves to be allowed with direction to OP No.1 to hand over or delivery by way of replacement a new LED TV of same model to complainant, but in case LED TV of the same model not available now, then to handover by way of replacement a new LED TV of worth of Rs.22,990/-, the price paid by complainant to OP No.1 through invoice Ex.C-1. Complainant purchased atleast six items through invoice Ex.C-1 including LED TV in question by paying total price of Rs.66,990/- and he claimed about broken condition of one LED TV only and not of any other product. That conduct of complainant further reflects as if he is seeking redressal of grievance with respect to broken/damaged product only. Had there been any greed in mind of complainant, then he could have claimed about the defects in other products also purchased through same invoice Ex.C-1. No such complaint lodged by complainant with respect to other 5 products purchased through Ex.C-1 and as such only reasonable and believable inference drawable is that actually LED TV in question was in broken/damaged condition and that is why claim staked with respect to that product only. Further the manufacturing defect is not claimed by complainant and as such the manufacturer cannot be fastened with liability. It is vehemently contended by counsel for OP No.2 that the displayed product was sold by OP No.1 to complainant and as such story regarding receipt of damaged LED TV is cooked up one. That submission of counsel for OP No.2 again has no force because seldom the displayed LED TVs in the show rooms are dispatched. Rather as per normal practice, the displayed TVs in the show rooms retained there for alluring the customers to purchase product of displayed brands. The display of electronic products like TV in a show room always done for making a visiting customer to know about the various features and working of the product. Only OP No.1 after appearance could have disclosed as to whether displayed product after being packed in the presence of complainant was handed over to him, but OP No.1 has not appeared, but is sought to be defended by OP No.2 and as such same also shows as if unbelievable defence raised by OP No.2 just for protecting its dealer. As complainant was deprived of enjoyment of the purchased LED TV for sufficient long time, even after paying the full price, and as such complainant entitled to compensation for mental agony and harassment as well as to litigation expenses of reasonable amount.
9. As a sequel of above discussion, complaint allowed against OP No.1 with direction to replace the LED/TV in question with new one of same model and in case the same model not available, then with model of worth of Rs. 22,990/- within 30 days from the date of receipt of certified copy of this order. Complaint against OP No.2 however, is dismissed. Compensation for mental harassment and agony of Rs.7,000/- and litigation expenses of Rs.3,000/- more allowed in favour of complainant and against OP No.1 only. Payment of these amounts of compensation and litigation expenses be made within 30 days from the date of receipt of certified copy of order. OP No.1 may pursue the matter with OP No.2 at its own level for refund/replacement, if any, but that will be no ground for denying claim of complainant regarding replacement, as referred above. Certified copies of the order be supplied to the parties free of costs.
Since there is shortage of postal stamps in this Forum, therefore, the parties through their counsel are directed to receive free certified copy of the order by hand and it is the responsibility of the appearing learned counsel for the parties to inform them accordingly. This direction issued by following the principle laid down by Hon’ble Punjab State Consumer Disputes Redressal Commission, Chandigarh in Consumer Complaint No.956 of 2017 titled as Partap Rai Sharma Vs. Greater Mohali Area Development Authority (GMADA), decided on 25.01.2018. File be indexed and consigned to record room.
Announced
March 01, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu) Member
(Mrs. Natasha Chopra)
Member
