BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.488 of 2015
Date of Instt. 10.11.2015
Date of Decision: 18.04.2017
Neerja Sharma Age 43 year, W/o Sh. Rajan Sharma, 566, J.P. Nagar, Jalandhar Through Attorney Amit Sharma Age 37 year S/o Baldev Krishan Sharma, 566 J.P.Nagar, Jalandhar (Mob. No.9876088566)
..........Complainant
Versus
1. Panesar Electro World, H-70, Arjun Nagar, Basti Mithu Road, Jalandhar-144002 Through its Prop/Partner/Authorized Representative.
2. Toshiba Service Centre, EH 31, Ladowali Road, Opp. Gurdwara, Jalandhar City-144001. Through its Prop/partner/Authorized Representative.
3. Toshiba India Pvt. Ltd., 3rd Floor, Building No.10, Tower-B, Phase-2, DLF Cyber city, Gurgaon 122002(Haryana) Through its Managing Director/Authorized Representative.
….......Opposite parties
Complaint Under Consumer Protection Act.
Before: Sh. Karnail Singh, (President),
Sh. Parminder Sharma (Member)
Present: Sh. Darshan Singh, Adv. Counsel for complainant.
Opposite Party No.1 exparte.
Sh. NPS Thind, Adv Counsel for OP No.2 and 3.
Order
Karnail Singh (President)
1. This complaint filed by complainant, wherein stated that the complainant purchased LED (Toshiba 32” Smart TV 32PX200ZE Serial No.C389A2J00858J1) for a sum of Rs.31,000/- which included VAT and surcharge from OP No.1 vide Invoice No.R-632 dated 13.11.2012. The warranty of the said product was three years given by the opposite parties. At the time of sale, the OP No.1 told and assured the complainant that if any defect arises in the said LED within warranty period, it would be repaired immediately or the defective/damage part would be replaced free of cost or the LED will be replaced with a new one. That within warranty period, in the second week of February 2015 the above said LED became out of order, its power did not switch on. The complainant brought the above defect into the notice of OP No.1 who directed the complainant to lodge the complaint with OP No.2 and accordingly the complainant talked with the OP No.2 on phone and brought the above defect into their notice. Two mechanics of OP No.2 came to the house of the complainant who checked the LED and told the complainant that its one internal part has damaged which can not be replaced free of cost. The complainant requested them to replace the damaged part free of cost being under warranty but they were adamant not to replace it free of cost. They told the cost of damaged part Rs.15,000/- to 17,000/- and directed the complainant to pay this amount to OP No.2 then the LED will be put in order. The complainant refused to give this huge amount to OP No.2. The complainant talked and requested the OP No.3 several times to replace the damage part free of cost being under warranty and also sent E-mail but the OP No.3 neither attended the telephonic call of the complainant properly nor made any arrangement to rectify the fault or replace the LED. The complainant requested the opposite parties several times to replace the damage part free of cost or replace the LED with new one being under warranty but the opposite parties ignored the genuine request of complainant. That inferior and defective quality LED has been sold to complainant by the opposite parties which became out of order within warranty period and tantamount to unfair trade practice.
2. That despite several requests and several visits made by the complainant to opposite parties, the opposite parties have failed to rectify the defect and refused to replace the LED or damage part which amounts to negligence and deficiency in service on the part of opposite parties and as such necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed either repair the LED free of cost or replace it. In the event of failure to do so, return its full cost as per bill with 12% interest from the date of purchase and further to pay Rs.3300/- as cost of litigation and to pay Rs.60,000/- as compensation for mental tension and harassment suffered by complainant at the hands of OPs on account of their unfair trade practice and negligence and deficiency in service.
3. Notice of the complaint was given to opposite parties but despite service OP No.1 did not come present and ultimately proceeded against exparte whereas OP No.2 and 3 filed their joint reply and contested the complaint by taking plea that the complaint as filed by complainant is vexatious, baseless and is more of an abuse of the process of law. It has been made to injure the interest and reputation of the answering opposite party herein and therefore the same is liable to be dismissed as provided in Section 26 of the Consumer Protection Act, 1986 and further alleged that the contents of the complaint would reveal that the complainant has suppressed material facts that are extremely relevant to the adjudication of the instant complaint. The Courts have on all occasions come down heavily on litigants who have approached Courts by suppressing facts and further submitted that the complainant has admittedly purchased a Toshiba LED TV Model 32PX200ZE bearing serial No.C389A2J00858J1 on 13.11.2012 from the dealer of answering OP. The said LED was perfectly working at the time of delivery and the complainant after being satisfied with the working of the LED took the delivery. The answering OP provides a warranty of three years on LED wherein the liability strictly lies in accordance with the terms and conditions of the warranty provided by it and cannot be held liable for the claims falling outside the scope of the warranty. In terms of the warranty stipulated by the answering OP the same is for a period of three years from the date of original purchase only and the answering OP is obliged to repair in terms of the warranty stipulated by the answering OP during the period of the warranty and the answering OP duly discharged its responsibility in this regard. As per the records of the answering OP, the only complaint of the LED was received on 24.02.2015 and accordingly the mechanic visited the complainant's house and after checking the LED found that it's panel/screen was broken. The engineer of OP No.2 informed the complainant that the LED cannot be repaired under the warranty as physical breakage of LED was not covered under warranty terms and that the same can be repaired on chargeable basis only. However, the complainant herein refused to pay for the replacement of the panel of the LED and became adamant to have replacement of the LED on free of cost basis. Copy of the job sheet dated 25.02.2015 and photographs of the LED showing the physical damage to the LED panel/screen are placed on record. The other allegations made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merit and same may be dismissed.
4. In order to prove the case of the complainant, the learned counsel for the complainant tendered into evidence duly sworn affidavit Ex.CA alongwith documents Ex.C1 to Ex.C5 and closed the evidence of the complainant.
5. Similarly, Counsel for the OP No.2 and 3 tendered into evidence affidavit Ex.OP2-3/A and some documents Ex.R1 Retail Invoice, Ex.R2 Warranty Card, Ex.R3 Job Sheet, Ex.R4 Photocopy of LED Screen and Ex.R5 Copy of Resolution and closed the evidence on behalf of OP No.2 and 3.
6. We have heard the learned counsel for the respective party and also gone through the file very minutely.
7. In this case, the counsel for the complainant also submitted written argument whereby reiterated the entire factum as elaborated in the complaint.
8. After taking into consideration, the entire submissions of both the parties, we find that the factum in regard to purchase of LED make Toshiba 32” Smart TV, purchased by complainant for a sum of Rs.31,000/- is not in dispute rather these factum has been admitted and even the factum in regard to complaint of the complainant in regard to defect in the LED was received by the OP in the month of February, 2015 is also admitted by the OP in its written reply but the plea taken by the OP is only that the engineer of the OP visited the house of the complainant and checked the LED and found that its panel/screen was broken and the said screen broken was due to manhandling and which is not covered under the warranty as per terms and conditions of the said sale and in order to give strength to this version the OP has brought on the file affidavit Ex.OP2-3/A and warranty card Ex.R2, Job Sheet Ex.R3 and Photocopy of LED Screen Ex.R4. In order to analyze the version of the OP whether there is a manhandling of the LED and due to that its panel/screen was broken and if so whether the same is not covered under the warranty as per terms and conditions for that purpose, we think the only thing is to be taken into consideration the terms and conditions and accordingly we have gone through the terms and conditions which are mentioned in the warranty card, placed on file by complainant as Ex.C3 and the same warranty card is also placed on the file by OP as Ex.R2 and in the said warranty card there are 22 terms and conditions and we have gone through all the terms and conditions and find that there is no such term and condition showing that the customer is not entitled for the benefit of warranty if any part is broken rather there is a clause No.12 and according to that clause, if the product is mis-used then customer can be debared from taking the benefit of warranty. But the case of the complainant is apparently not covered under the terms and conditions as mentioned in the warranty card. If so then the product of the complainant is within a warranty period that he is entitled for the repair of the same, free of cost because due to damage/broken of the screen he is not dis-entitled because it might be due to technical defect and not by manhandling because if mechanic/engineer has been examined by OP to establish whether there is any mis-used or manhandling of the said product then situation may be different but in this case no such mechanic has been examined. So, with these observations, we are of the opinion that the complainant is entitled for relief claimed.
9. In the light of above detailed discussion, the complaint of the complainant is partly accepted and all the OPs are directed to repair the LED of the complainant free of cost and also pay a compensation of Rs.5,000/- to the complainant for harassment and further also pay a sum of Rs.2,000/- as litigation expenses. The entire compliance of the order be made within 30 days from the date of receiving copy of order. Complaint could not be decided within stipulated time frame due to rush of work.
10. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Parminder Sharma Karnail Singh
18.04.2017 Member President
