- The complainant is filed a petition praying to pass order directing the O.Ps either to replace the LCD or refund the cost of the LED and to pay Rs. 50,000/- towards compensation and Rs. 5,000/- towards cost of litigation.
- The complainant in his petition submitted that he had purchased a Samsung L.C.D. / TV from the Op.No.1 bearing Model No. M-PA43H 4100ARL XL and paid Rs 35,200/- (Rupees Thirty five thousand two hundred) only toward the cost of the said L.C.D. and accordingly the Op.No.1 granted a printed Money receipt vide No. 3417 dated 19.09.2014 along with warranty certificate issue in favour of the complainant. Six months after its purchase, the complainant found several defects in the LCD and the same were brought in to the knowledge of Op.No.1 towards the rectification of defects and on his advise handed over the LCD to the Op.No.1 who kept the same with for some days and returned the LCD by saying that the defects of the LCD has been rectified. On using, the said LCD again showed its old defects for which the complainant again met the Op.No.1 who disclosed that the said LCD suffers from inherent manufacturing defects and the same could not be rectified by him. Due to unfair trade practice deficiency in service on the part of the Opposite Parties the complaint along with all Member of the Bar suffered mental agony, physically harassment and financial loss.
On receipt of notice the Opposite Party No-1 appears through his counsel and filed his written version. In his written version the Opposite Party No-1 contended that the complainant had purchased a Samsung TV bearing Model No M-PA43H4100ARL XL and after receiving the complain on the defects, he registers the complain and informed the company service centre who attended the defects. It is further contended by the OP.No-1 that in case of manufacturing defects the manufacturer is liable for its replacement and as he is only a retail dealer he is not responsible for any manufacturing defects.
Despite notice sent to the Opposite Party – 2 through registered post Despite notice the Opposite Party No-2 neither appeared nor filed his written version hence, he set ex-parte vide our order dated 08.10.2015.
In course of hearing, we heard the complainant and learned Counsel appearing for the Opposite Party No-1 and gone through the records very carefully.
We come across a decision of the Hon’ble Supreme Court in the matter of Vidya Dhar-versus-Munkif Rao and another reported in 1992(2) Civil Court cases at age-91 held that “if a party did not adduce any evidence in rebuttal, then adverse inference should drawn against the party for not rebutting the evidence.”
We are fortified by a decision of the Hon’ble High Court of Jammu & Kashmir in the matter of Fiat India Pvt. Ltd. Versus Dr. Zahid Hussain Gilari and others reported in 2003 CTJ 953 (CP) wherein the Hon’ble High Court held that “it is well settled that where the averments made in the complaint are un-rebutted is that the averments are true and correct.” In this, regard, as per the authority reported in 2008(3) CLT 181 titled Nilambar Mishra & ANrs. Vs. A.K. Dutta & ors.., Hon’ble National Commission has held that: “manufacturer defect-power tiller-Purchased by petitioner after obtaining loan from Bank-Defect not rectified- No expert evidence on the part of OP to rebut the same- Respondents jointly and severally liable”, as per 2008(3) CLT 519 titled Unnikrishnan & Anr. Vs. V. Murakeedharan Hon’ble National Commission has held that: “Defective batteries sold and services had not been rendered in terms of 24 months guarantee- The deficiency in service would, become writ large- Order of the State Commission directing petitioner to refund the price with interest upheld.”
The Hon’ble Supreme Court in Maruti Udyog Ltd. V/s Sushil Galgotra and Others had held that all peculiar facts of the case relief to the party can be molded and in Ghaziabad Authority V/s Balbir Sing (2004) 2005 SCC 65 the Hon’ble Supreme Court came down heavily and called upon the consumer Foras and Commissions not only to compensate the consumer as to the actual loss suffered by them but also to compensate them as to the mental agony, harassment, emotionally suffering, physical discomfort, loss of time and loss of business also.
Therefore, the un- rebutted arguments left no corner to disbelieve the complaint. Taking consideration the undisputed documentary evidence and pleadings, we are inclined to pass order in favour of the complainant, directing the O.P.No.2 to refund Rs 35,200/- (Rupees Thirty five thousand two hundred) only the cost of the LCD/TV to the complainant and pay Rs.10,000/- (Ten thousand only) towards litigation expenses to the harassment and Rs. 3,000/- (Rupees Three thousand only) towards compensation litigation expenses to the complainant within 30 days on receipt of a copy of this order in default, the Opposite Party No-2 is liable to pay rs.50/- per day of default till its realization. Copy of the order be communicate to the parties free of cost.
Copy of the order be sent to the parties free of cost as per rules.
Pronounced in open Court on 26th October,2015.
