Tamil Nadu

StateCommission

A/205/2018

Thierry Damilano, France - Complainant(s)

Versus

M/s. Systronics(India Ltd), Chennai-600 029. - Opp.Party(s)

M/s. Mohammed Fayaz Ali

17 Mar 2023

ORDER

  IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 

BEFORE :      Hon’ble Mr. Justice R. SUBBIAH                              PRESIDENT

                   Thiru R VENKATESAPERUMAL                                          MEMBER

                        

F.A.NO.205/2018

(Against order in CC.NO.29/2016 on the file of the DCDRC, Chennai (North)

 

DATED THIS THE 17^th DAY OF MARCH 2023

 

Thierry Damilano                                               M/s. Mohamed Fayaz Ali

17, Rue Marengo                                                        Counsel for

72000 Le Mans, France                                         Appellant / Complainant

 

                                                         Vs.

M/s. Systronics (India) Ltd.,

Telerad Division

146/8, II Floor, Millennium Tower                          M/s. M. Ranganathan

Nelson Manickam Road                                                Counsel for

Chennai – 600 029                                            Respondent / Opposite party

 

          The Appellant as complainant filed a complaint before the District Commission against the opposite party praying for certain direction. The District Commission had partly allowed the complaint. Against the said order, this appeal is preferred by the complainant praying for enhancing the compensation awarded by    the District Commission vide order dt.28.11.2017 in CC.No.29/2016.

 

          This appeal coming before us for hearing finally on 5.12.2022, upon hearing the arguments of the counsel appearing on bothside and on perusing the documents, lower court records, and the order passed by the District Commission, this commission made the following order:

 

ORDER

 

JUSTICE R. SUBBIAH,  PRESIDENT   

1.        This appeal has been filed by the complainant as against the order dt.28.11.2017 passed by the District Commission, Chennai (North), in CC.No.29/2016 by partly allowing the complaint filed by the appellant/complainant herein.

 

2.       For the sake of convenience parties are referred as per the ranking before the District Commission.

 

 3.      The brief facts of the complaint before the District Commission are as follows:

          The complainant is an adventure photographer, and he used to travel all over the world on expedition, doing corporate and adventure videos as well as organizing Royal Enfield Motor bike tours throughout India.  He had visited Chennai on 20.12.2010, and had approached the opposite party to service his Sony Camera EX1R # 405178 since it was damaged due to salty sea water.  Despite lapse of three months the opposite party could not repair the camera and finally on 19.2.2011 the opposite party replaced five boards and handed over the camera to the complainant at New Delhi after receiving a payment of Rs.1,67,722/- and issued an invoice dt.28.3.2011 after several demands.  Before few hours of his departure to Paris, he noticed that few screws were missing from the camera and the complainant immediately sent an email dt.19.2.2011 with a picture of the camera to the opposite party.  After reaching Paris on 21.2.2011 the camera was taken to Sony Service Centre  i.e., “M/s.Loca Images”  (Sony dealer) in Paris and it was informed that the camera was not at all put back together properly, screws were missing outside and inside, few parts were missing with an improper connection.  Hence on 25.2.2011, the complainant notified the opposite party that the camera had been placed before M/s. Loca Images in Paris. The opposite party also recognized and admitted its fault that some parts of the camera is in their possession at Chennai such as missing screws, HDMI plug etc.  Thereafter, on 6.7.2011, the opposite party requested the complainant to return the camera and on 19.7.2011 the opposite party agreed to refund the money paid.  On 3.2.2012 the complainant returned the five boards to the opposite party through his contacts at Chennai, and it was duly handed over to the opposite party’s Area Manager Mr.T.P.Kumar at Chennai.  Thereafter on 22.2.2012, the opposite party stated that one out of the five boards i.e., the DPR board is a used one and not the one replaced by the opposite party.  The opposite party is now in the possession of five faulty boards, which were replaced by the opposite party, and have failed to refund the cost as assured by them.  The complainant paid the full amount for the cost of the board.  Due to the negligence act of the opposite party, the complainant lost an assignment and hence he had purchased a new camera.  Inspite of several reminders, the opposite party had not refunded the cost incurred for servicing of camera.  On 15.4.2015 the opposite party agreed to refund a sum of Rs.1,05,000/- for the four boards, while disputing the originality of the DPR Board.  The complainant agreed to receive the amount without prejudice to his rights to claim the remaining amount, and also provided the local bank account details.  However the opposite party failed to pay the agreed amount on one pretext or the other falsely stating that the amount cannot be refunded as the invoice is not in complainant’s name.  The opposite party received the five boards from the complainant on 3.2.2012 and even after nearly four years the opposite party refused to refund the cost as agreed.  The opposite party is due and liable to pay Rs.1,67,722/- towards the cost of the repairs.  Thus alleging negligence on the part of the opposite party, the complainant filed a complaint before the District Commission praying for a direction to the opposite party to refund a sum of Rs.167722/- towards the cost of the repair, and to pay a sum of Rs.473225.90/- towards the cost of the new camera, alongwith compensation of R.50000/- towards mental agony and Rs.50000/- compensation towards deficiency in service and cost of Rs.30000/-. 

 

4.       The case of the complainant was resisted by the opposite party by filing their version as follows:

          The complainant had approached the opposite party to service his Sony Camera EXIR#405178, since the camera was damaged by salty sea water.  The camera was totally damaged and cannot be restored to normal condition.  Therefore, the opposite party advised the complainant that the repair was at his risk because the camera cannot be guaranteed for the performance even after repair and later on the problem would reappear after sometime due to oxidized effect of sea water and the same is not visible while at the time of repair and the repair would also consume more time to study its condition and performance, hence advised the complainant to drop the idea of repair.  The opposite party had agreed and accepted to repair the camera due to persuasion and consent of the complainant, since the complainant is a foreign client of the Sony product.   The complainant had also accepted and agreed for the risk in restoring the condition of his camera.  The opposite party was very clear in their stand and had not given any warranty to repair the camera and guarantee for its performance.  The opposite party took a reasonable time to repair the camera due to its complete study and for want of spares after its condition, and had replaced the damaged boards.  The complainant received the camera on 19.2.2011 from the opposite party’s Delhi Office.  The opposite party had delivered the camera in good condition and the complainant had accepted the same without any protest.  The opposite party had replaced five boards by five new boards after the receipt of payment from the complainant’s side.  The entire amount was not received from the complainant.  The complainant had paid the balance amount of Rs.48,472/- only on 19.2.2011.  The amount of Rs.94,250/- and Rs.25000/- were paid on 18.1.2011 and 17.2.2011 aggregating Rs.1,19,250/- by Siplec International Limited, Chennai, on behalf of the complainant and the Invoices to that effect were raised in the name of the said Siplec International Limited on 16.2.2011.  After the receipt of the balance amount of Rs.48,472/-, a Proforma Invoice dt.28.3.2011 for Rs.1,73,111/- was raised in the name of the complainant as per his request and not after several requests as alleged by the complainant.  It is incorrect to say that after reaching Paris on 21.2.2011, the complainant had taken the camera to a Sony service centre viz. M/s.Loca Images in France, and it was informed that some parts in the camera were missing. The opposite party had agreed to refund the cost as a special case, provided the complainant should return the replaced new boards at the earliest.  However the complainant had taken his own time and had not returned the replaced new DPR Board to the opposite party.  Since the complainant was not cooperative in this regard, Sony had refused to honour their commitment by citing inordinate delay.  It is incorrect to say that the opposite party had agreed to refund a sum of Rs.1,05,000/- for the four boards.  Thus there is no deficiency in service on their part. 

 

5.       In support of their contentions, proof affidavits were filed by both parties alongwith documents which were marked as Ex.A1 to A11 on the side of the complainant, and Ex.B1 to B14 on the side of the opposite parties.

 

6.       The District Commission, after analysing the evidence had come to the conclusion that there is deficiency of service on the part of the opposite party in not repairing the camera properly and also failed to refund the amount of Rs.1,05,645/-, had directed the opposite party to refund a sum of Rs.1,05,645/- to the complainant towards repair charges, alongwith compensation of Rs.20000/- and Rs.5000/- towards cost. Not being satisfied with the amount awarded, the complainant filed this appeal praying for awarding the remaining amount of Rs.62,077/- towards cost of servicing of the camera and Rs.473225/- towards cost of new camera. 

 

7.       We have heard the learned counsel appearing for both parties, perused the documents and the order impugned.   

 

8.        The learned counsel for the appellant would submit that the District Commission, after holding that there is deficiency on the part of the opposite party, ought to have ordered for refund of the entire amount of Rs.167722/- paid towards servicing of the camera.  Whereas, the District Commission, erroneously by placing reliance upon Ex.B13 and B14 has held that the appellant had agreed to receive a sum of Rs.1,05,645/- towards compensation.  But the Forum failed to take into consideration the fact that the complainant agreed to receive the amount of Rs.1,05,645/- without prejudice to his rights to claim the remaining amount.  The complainant had not received any amount towards full and final satisfaction.  That apart the complainant had claimed additional expenses incurred by him for the purchase of new camera.  The District commission ought to have considered that the appellant had incurred additional expense alongwith the burden of purchasing a new camera which was only due to deficiency of service by the Respondent, who had improperly serviced the camera.  Thus he prayed for enhancement of compensation awarded. 

 

9.       Countering the submission, the learned counsel for the opposite party submitted that the complainant had agreed to receive Rs.105645/-, since he failed to return the Sony’s Original DPR Board replaced in his faulty camera inspite of several reminders.  The Respondent had collected only Rs.3309/- including service tax as service charges and the rest of the amount was paid towards the procurement of Sony’s original boards to replace the defective camera.  The complainant had sent only 4 replaced original boards and not the original DPR board. However, in view of return of the 4 boards, the appellant had agreed to settle the amount for Rs.105645/- only.  Therefore, absolutely there is no deficiency in service on their part.  Thus prayed for dismissal of the appeal. 

 

 

10.     Now the main points that have to be decided is

          1.       Whether the complainant has made the case for the refund of the entire cost of the camera?

          2.       Whether the complainant is entitled for refund of Rs.4,73,225/- towards the purchase of New Camera?

 

11.     With regard to Point No.1, it is the submission of the learned counsel for the appellant/ complainant that the opposite party had agreed for the refund of the money paid @ Rs.167722/- towards service of the camera, and he accepted to receive the sum of Rs.105645/- without prejudice to his rights to claim the remaining amount. 

 

12.     Per contra, the Respondent/ opposite party would contend that they have agreed to refund the amount of Rs.105645/- as a special case, since the complainant is the customer of Sony for long time.  But at no point of time, they had agreed to pay the entire cost of the camera.  Out of the 5 boards replaced by the opposite party, only four were returned, and 5^th one not returned. 

 

13.     Keeping the submissions in mind, we have perused the materials placed on record.

 

14.     In this regard, a perusal of Ex.A7 would show that there is no categorical admission by the opposite party that there is negligence on their part.  Instead, they just came forward to return the service charges including the cost of spare parts used, in a good gesture, on the ground that the complainant is a regular customer of the opposite party.       The opposite party would further contend that out of 5 boards, only 4 boards were returned and the DBR board has not been returned by the complainant. 

          In view of the above, we are of the considered opinion that the District Commission had rightly directed the opposite party to refund the amount as agreed by the opposite party. 

          Moreover, the complainant had not produced any evidence to show that the defect had occurred only due to the repair done by the opposite party.  Therefore, it is clear that the complainant had not made out a case to claim the entire repair charges, as well as for refund of the cost of the new camera.  Therefore, we feel that there are no compelling circumstances to enhance the compensation, merely by placing reliance on the pleadings, and based on the e-mail correspondences exchanged between the parties, which does not exhibit any strong evidence in favour of the complainant.  Accordingly, finding no merits, the appeal deserves to be dismissed.

 

15.     In the result, the appeal is dismissed, by confirming the order of the District Commission, Chennai (North) in CC.No.29/2016 dt.28.11.2017.  There is no order as to cost in the appeal. 

 

 

 

  R  VENKATESAPERUMAL                                     R. SUBBIAH

                      MEMBER                                                     PRESIDENT