For the Complainants - Priyangbada Singh & Abhijit Chakraborty
For the OPs - Subhankar Chakraborty & Others
FINAL ORDER/JUDGEMENT
SMT. SAHANA AHMED BASU, MEMBER.
This is an application u/s.12 of the C.P. Act, 1986.
Moot case of the consumer complaint is that on 10/06/2018 complainant had purchased one Nikon Capital Photos Camera being Serial No. NIKON D5300 coupled with duel kit being serial No.748111/22776895/20351389 at a price of Rs.45,900/- from O.P.-3. Immediately after purchase, complainant notices dust in view finder along with startup error and contacted to the Authorized Service Centre. The same was taken to the service centre and they issued job sheet being No.SO-0028078 dated 18/06/2018. Engineer of the service centre failed to detect the defect and also avoid their obligation, O.P.-2 stated that the damage caused due to water log though the camera never mishandled, tampered, no repair by unauthorized 3rd party, no rust/fungus/sand, no damage on body but it started malfunctioning within 7 days from the date of purchase. The camera was taken into custody by O.P.-2 with the remark that no water logged situation but after elapsing 24 hours of depositing the camera O.P.-2 informed that the said product is water logged situation. Complainant was informed that he has to pay further Rs.9116.26 as the said defect does not come under warranty clause. Complainant lodged complaint dated 03/07/2018 before Consumer Affairs Department. A tripartite meeting took place and O.Ps.-1 and 2 refused to replace or refund against alleged water effect camera. Finding no other alternative complainant has filed this consumer complaint praying for a direction upon the O.Ps. to refund Rs.45,900/- with interest at the rate of 12 percent till realization along with compensation of Rs.25,000/- and litigation cost of Rs.10,000/-.
O.Ps.-1 and 2 have filed W.V. jointly to contest the case contending inter alia that the case not maintainable, no cause of action, harrassive, frivolous and complainant is not a consumer under the C. P. Act. It is stated by the O.Ps.-1 & 2 that complainant purchased the camera in question on 10/06/2018 from O.P.-3 and that was used for a time with satisfaction by him. Thereafter, on 18/06/2018, he contacted to the service centre with a complaint of ‘startup error showing & dust in view finder. As such, the camera was running satisfactorily till 17/06/2018. After duly verification it was found by the service engineer that internal parts of the camera are water affected and the camera cannot be repaired under warranty. When the complainant raised his objection, O.Ps. shown the images of those spare parts for better satisfaction of the complainant. Water affect parts are not covered under warranty. To take undue advantage complainant has suppressed the actual fact and as such there is no deficiency in service on the part of the O.Ps.-1 and 2 and the case is liable to be dismissed.
Decision with Reasons
We have travelled the averments made out in the complaint, written version, evidence and documents on record and have also heard carefully the arguments placed before us.
Undisputedly the complainant purchased a Nikon Capitol photos camera bearing serial no .NIKON D5300 at price of Rs 45,900/- from OP-3 on 10.06.2018 and took the said product with a complaint of start up error showing and dust in view finder to the OP2 for repair on 18.06.2018 against Service Order job sheet NO. SO- 0028078 . The photocopy of the Service order job sheet goes to show that one Indrani Saha signed it with initial observation that no mishandling and tampering of product , no wet / solid product , no battery leakage, noise of non-standard parts , no repair of unauthorized third party , no rust/fungus/sand , no damage on body , no violation of other warranty provision , no scratches on the body is found by her and also the said product is within warranty period . Only one point was ticked off as ‘yes’ was ‘others’ on behalf of the OP-2. The cause of action arose when the complainant informed over phone that the Service Engineer detected that the internal parts of the camera are water logged and the said product cannot be repaired under the terms and conditions of the and the complainant have to pay a further sum of Rs. 9116.26/-.
Controverting the allegation, the Ld. Advocate of the OPs 1 & 2 admitted that the Service Order Job sheet was prepared by one Indrani Saha. But he argued and replied to the question of the complainant all the initial observations mentioned on the service order copy are merely on outside condition of the subject camera as Front Office Staff is not authorized to open the camera and the same done by highly trained technicians . The customer care executive is not the service engineer and service order was prepared on the basis of the complaint and also shown in the externally in open eyes. This argument has no leg to stand. If the Customer Care Executive is not competent person to detect the technical fault then she should not make any endorsement on the service job sheet. More so, how can a customer identify that who is Customer Care Executive and who is the Service Engineer and what are their specific capability and duties. It is not believable that an employee of a reputed company like OPs 1 & 2 can go by the advice of the customer or make endorsements shown in the externally in open eyes. If so, that is the utter negligence and fault on the part of the OPs .
Ld Advocate for the Ops further argued that Service Engineer of the OPs detected that internal parts of the said camera were waterlogged and the water affects to the parts due to misuse/mishandling of the camera. He filed some photographs as evidence. The complainant admitted that the subject camera was taken by the OP2 and they did not open it in his/her presence. Ld Advocate for the complainant pointed question No.11 of the O.Ps. that the OPs in their evidence stated that the camera in question has been misused / mishandled , it can be inferred that the said camera has been deliberately tampered by the Ops to avouid the liability of repayment / replacement. We did not find any strong clarification on the part of the Ops . In the verdict of Endolite India Limited Vs Reena Aggarwal case the Hon’ble Delhi DCRC stated that :
Whenever any consumer purchases any goods of the kind in question or for that purpose any goods which are brand new which was manufactured by a highly reputed company and claims to be highly technically sound product then the minimum expectation of the Consumer is that he should not suffer any inconvenience or discomfort at least for few months or a year or so. But if the consumer has to get the goods repaired every second or third month because of the physical discomfort being experienced by him or her , the safest inference that can be drawn is that the goods are defective .
In the light of the above observation we find that the Ops are deficient providing proper service to the complainant.
The complainant alleged that the subject camera is suffered by the inherent technical fault. On the contrary, the O.Ps. denied it. The complainant purchased the subject camera on 10.06.2018 and brought it to O.P.-2 on 18.06.2018 due to certain defect. Therefore, it appears that the complainant used the said camera without any interruption for about 07 days. There is no dispute that the said camera have some problem. In the case of Tata Motors Ltd vs Bishanber Nath Sikka & Another Hon’ble Delhi DCRC observed that –
“If the defect continues after the warranty period which had erupted before the warranty period the inference could be drawn that it is suffering from ‘inherent manufacturing defect.”
The subject camera was under the 2 Years Comprehensive Warranty as per terms and conditions of the OP 1. But the OPs tried to shift their responsibility on the shoulder of the complainant and used the terms and conditions as a safe guard. This gesture on the part of the OPs tantamount to unfair trade practice.
Therefore, we are of the opinion that the complainant is entitled to get relief / reliefs as prayed for.
In result, the case succeeds.
Hence,
ORDERED
That the consumer case be and the same is allowed on contest against the OPs.- 1 & 2 with litigation cost of Rs 10,000/-.
The OPs.- 1 & 2 are jointly and severally directed to refund Rs 45,900/- to the complainant.
The OPs 1 & 2 are also jointly and severally directed to pay Rs 5,000/- only as compensation on account of mental agony, pain and physical harassment suffered by the complainant.
The above order be complied by the O.Ps.-1 & 2 within a period of 45 days from the date of this order, failing which, the complainant shall be at liberty to execute the order by filing appropriate application under C. P. Act, 1986 against the O.Ps.-1 & 2.
