Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 341.
Instituted on : 22.09.2014.
Decided on : 09.06.2016.
Ashok Kumar s/o Sh. Laxminarayan R/o Rajiv Nagar, Rohtak.
………..Complainant.
Vs.
- Proprietor Pankaj Electronics, 36, Palika Bazar Rohtak.
- Toshiba India Pvt. Ltd. Third Floor, Building No.10B, D.L.F.Cyber City, Gurgaon through Manager/Managing Director.
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
SH. VED PAL, MEMBER.
Present: Complainant in person.
Ms. Sonika Jangra Advocate for opposite party no.1.
Sh.Rajesh Sharma Advocate for opposite party no.2.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that he had purchased LED TV 32UP 202E Model of Toshiba Company on 09.11.2013 from the opposite party having 3 years warranty. It is averred that since the date of purchase it did not work properly and the complaints were made vide Nos. SRF 8F 0060152, 244191443, 230972189, 230971598, 144183566. It is averred that the mechanic of opposite parties repaired the alleged TV 2-3 times but defect could not be removed. It is averred that during the repair he had broken the Display screen of the TV and had gone without repair of TV. It is averred that complainant contacted the opposite parties several times to remove the defects but the same could not be removed. It is averred that the act of opposite parties is illegal and amounts to deficiency in service. As such it is prayed that the opposite parties may kindly be directed to refund the price of LED TV or to supply a new LED TV alongwith compensation and litigation expenses to the complainant.
2. Notice of the present complaint was sent to the opposite parties who appeared and filed their separate written reply. Opposite party no.1 in its reply has submitted that there is no defect in any manner in the above said LED T.V, rather it is a breakage on the negligent part of the complainant which does not come under the terms of warranty. It is averred that the answering opposite party being dealer is not liable to remove any defect. All the other contents of the complaint were stated to be wrong and denied. Opposite party prayed for dismissal of complaint with costs. However, opposite party no.2 in its reply has submitted that complainant had admittedly purchased a Toshiba LED TV on 18.10.2013 from the opposite party no.1. The said LCD was perfectly working at the time of delivery and the complainant after being satisfied with the working of the LCD took the delivery and got the same installed at his residence. It is averred that opposite party provides a warranty of one year on LCD wherein its liability strictly lies in accordance with the terms and condition of the warranty provided by it and the answering opposite party cannot be held liable for the claims falling outside the scope of the warranty. It is averred that in the instant case the screen of the LCD was physically damaged due to mishandling and misuse of the LCD by the complainant for which the complainant cannot be benefited within the warranty stipulated by the answering opposite party. It is averred that there is no manufacturing defect in the alleged LCD and as such complainant is not entitled for any amount. It is averred that there is no deficiency in service on the part of answering opposite party and dismissal of complaint has been sought.
3. Both the parties led evidence in support of this case.
4. Complainant in his evidence has tendered affidavit Ex.PW1/A, and document Ex.P1 & Ex.P2 and has closed his evidence. On the other hand, Ld. counsel for the opposite party no. 1 made a statement that written reply already placed on file be read in evidence. Ld. counsel for the opposite party no. 2 has tendered affidavit Ex.RW2/A, document Ex.R1 to Ex.R4 and has closed his evidence.
4. We have heard ld. counsel for the parties and have gone through the material aspects of the case very carefully.
5. There is no rebuttal to the evidence that as per Bill Ex.P1, the complainant had purchased an LED TV of Toshiba Company for a sum of Rs.26500/- after discount of Rs.385/- i.e. for Rs.26115/- on dated 09.11.2013 from the opposite party no.1 having three years warranty. It is also not disputed that the defects in the TV appeared during the warranty period. As per copy of job Sheet Ex.R3, there was a defect in the alleged LED and as per customer, HDMI was not working and panel was broken. The contention of ld. Counsel for the complainant is that the defects appeared in the alleged LED during warranty period and the display screen was also broken by the mechanic during the repair. As such opposite parties are liable to replace the same. Ld. counsel has also placed on record document Ex.P2 whereby it has been mentioned by the Proprietor of the Service Centre that the complainant had deposited his alleged defective with the opposite party no.1 for its repair and the opposite party no.1 had sent the same to their Service Centre for repair. On the other hand, the contention of the opposite party no.2 is that there is no manufacturing defect in the alleged LED and the opposite party is not liable for the physical damage due to mishandling and misuse of the LCD by the complainant as the same does not covers under the warranty. On the other hand, opposite party no.1 has given a statement on dated 09.11.2015 that in case of any manufacturing defect in the product, the liability is of opposite party no.2 being the manufacturer.
6. After going through the file and hearing the parties it is observed that as per job sheet Ex.R3 the panel was broken and HDMI not working and as per report Ex.P2 placed on record by the complainant there was defect in the alleged LED which was sent to their service centre for its repair by the opposite party no.1. It is also observed that the defects in the LED appeared during the warranty period which could not be removed by the opposite parties. Regarding the plea taken by the opposite party no.2 that there was no manufacturing defect in the LED, we have placed reliance upon the law cited in 2014(3)CLT178 titled as Krishanpal Singh Vs. Tata Motors & others whereby Hon’ble National Commission, New Delhi has held that: “Vehicle repeatedly taken to service station for repairs-The manufacturing defect, must be assumed-Onus of proof shifts upon OP, and it is further held that: “Whenever there is a complaint of manufacturing defect, it should be the bounden duty of the people, like Ops to appoint their own experts who are always available at their beck and call to prove that the car does not suffer from any manufacturing defect”. In view of the aforesaid law which is fully applicable on the facts and circumstances of the case it is observed that it is a fit case where refund of price is justified. The LED in question is with the service centre of the opposite parties.
7. In view of the facts and circumstances of the case it is observed that opposite party no.2 being the manufacturer of the product/LED TV is liable to refund the price of product to the complainant. As such it is directed that opposite party no.2 shall refund the price of LED TV i.e. Rs.26115/-(Rupees twenty six thousand one hundred fifteen only) alongwith interest @ 9% p.a. from the date of filing the present complaint i.e. 22.09.2014 till its realization and shall also pay a sum of Rs.3500/-(Rupees three thousand five hundred only) as litigation expenses to the complainant within one month from the date of decision failing which the awarded amount shall carry further interest @ 12% p.a. from the date of decision. Complaint is allowed accordingly.
8. Copy of this order be supplied to both the parties free of costs. File be consigned to the record room after due compliance.
Announced in open court:
09.06.2016.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
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Ved Pal, Member.
