Counsel for the parties:

For the complainant:  Sri Biswajit Kar & Satyan Choudhury, Advocate,Bhawanipatna.

For the O.P No.1: Self

For the Opp.Party No.2: Sri S.N.Seth & Associate Advocate, Bhawanipatna.

For the Opp.Party No.3: Deleted by the Complainant.

For the Opp.Party No.4: Sri Sibananda Rath & Associate Advocate,Bhawanipatna.

                                                                   JUDGMENT

                        The facts of the complaint  in brief is that,  the complainant has purchased  one  Toshiba LED 32 Television  from O.P. No.1 with a  consideration of Rs.28,500/- on 11.10.2013 vide  Invoice No.BB/RI-1040 with warranty period of three years. During the month of August,2016 i.e. within the warranty period the said TV was found defective and it becomes defunct. The complainant  immediately  approached the OP 1 to resolved the problem, and the OP a1 advised  the complainant  to send the defective TV to Sambalpur which is the nearest service centre as it is found defect within its warranty period  and the OP 1 send the TV to the OP 2  in the month of August,2016  and after one month the complainant contacted the OP 2  in the Toll Free number but  no one  response to the call of the complainant. On 29.09.2016 the OP 2 OP 2 intimated the complainant  that the complaint for  the said defective television is registered  vide complaint No/.SRR40046532. Beside that after lapse of five months from the date of registered of the complaint, neither the defective parts  of the TV  is replaced nor the TV is retuned to the complainant and till today the TV is kept with the OP 2 without repair. Finding no other option the complainant approached this forum and  prayed to  direct the Ops to replace with a  defective free TV worth of Rs.28,500/-  and direct the OP s to pay Rs.20,000/- as compensation for mental agony and cost of litigation of Rs.10,000/-. Hence, this complaint.

                         On being noticed,  the O.Ps appeared and filed their written version separately. The Opp.Party No.1 stated that he is  the seller of the TV  Toshiba LED 32 PU 200ZE to the complainant on dt.11.10./2013 for Rs.28,500/- and issued retail invoice vide Invoice No.BB/RI 1040. During the month of August,2016 the complainant came to his shop with the defective  LED TV and on the same day he contacted the customer care of Toshiba, India   on his toll free number to login the complaint  but it was out of service and thereafter the OP 1 contacted with the distributor of Toshiba  i.e. OP 2  and OP 2 advised  to send the said TV to  Toshiba Service Centre, Sambalpur and accordingly the OP 1 sent the TV to the OP 2 on 16.08.2016 and after that the OP 1  asked several time to the OP 2 but  they did not respond to his phone call nor give any reply. The OP 1 also contacted with the Company in his toll free number but no reply has been received from the customer care centre and they remained silent in this matter. Being a seller  he has taken all necessary steps   with full satisfaction  of the consumer and hence  do not have any fault  and he has not adopted any unfair trade practice.

                        The OP No.2 stated that  this OP was only a distributor of television  Toshiba India Pvt. Ltd.  and had no direct connection with the complainant nor had any liability towards  the warranty  of the alleged television set as the said company has its own servicing station and the complainant is directly connected with the authorized servicing station through the dealer. The   OP 2 has no responsibility towards  that nor  the OP 2 has ever received any such television set for repair as he is not the authority of the servicing station. The OP 2 has no information regarding the development t of any defect with the alleged TV  as such the OP 1  only can answer the same as the complainant is directly dealing with him  and the complainant himself admits that the OP 1 had advised him to send the defective TV to the service centre at  Sambalpur  to avail the warranty. The OP 2 denies that he has not  received any TV from the OP 1. Neither the complainant nor the OP 1 has ever spoken to this OP 2 regarding the alleged TV set  as  such  the complainant is to put to prove through  strict documentary evidence . The OP 2 cannot be held guilty  as he has never dealt with the complainant  as he has no responsibility of providing  after sale service to the consumers  as the company has its own servicing centre and the OP 2 has no control over such service centre and hence this OP 2 has never committed any unfair trade practice.  The OP 2 cannot be saddled with any cost or compensation out of this dispute and complaint be dismissed against this OP.

                        The OP No.4-CEO,Toshiba Pvt. Ltd.  stated that he is not a necessary party and in its personal capacity  owes no fiduciary or contractual liability to the complainant.  Admittedly the complainant has purchased Toshiba Led 32 PU 200ZE for a sum of Rs.28.500/- vide Invoice dt.11.10.2013 from the OP No.1. A warranty of three years  on the said LED  from the date of  original purchase strictly lies in accordance with the terms and condition of the warranty provided by it and it cannot be held liable for the claims falling outside the scope of the warranty. In terms of warranty the Opposite Party is obliged to repair the LED during the period of the warranty and Opposite Party duly discharged its responsibility in this regard.  It is further stated by the OP 4 that  during the period of warranty  if any spare part of the particular product was not available then  under those circumstances the depreciating rules of the company would be applicable and in that condition  wherein a particular spare part is not available then the OP 4 shall offer a commercial solution to its customer, whereby the value of the LED TV  would be refunded back to the customer after ducting the depreciating value  which is deduction @ 10% per annum  as per prevailing Company Policy . As the required spare part was not available in the stocks of the Opposite Party,  it has to be imported from Toshiba factory located outside India and considering that there would have been severe delay in procuring the required spare part. The Opposite Party offered refund of purchase of the  LED  subject to charging depreciation as per the terms of warranty but the complainant refused to accept the said refund proposal of the Opposite Party. Since the  Opposite Party  fairly offered the depreciated price of the LED, therefore the question of any deficiency on the part of the Opposite Party does not arise. Each and every endeavor was made to rectify the defect from the LED TV of the complainant but when the same was not rectified due to non availability of spare part and delay in procurement of the same, a good amount of Rs.20.044/-  was offered to the complainant  as per the terms of the warranty scheme but the refund proposal was refused by the complainant on one pretext or other. The Opposite Party is still ready and willing to  refund a sum of Rs.20,044/- to the complainant  after considering deduction @ 10% per ;annum towards depreciation in value of the LED TV which has been continuously used by the complainant  since last two years, eleven months and eighteen days and also after deduction of VAT. In view of the above submission the Opposite Party prayed  to dismiss the complaint  petition.                                                                                                                                                     FINDINGS

                        Heard and perused the complaint petition and documents filed by the complainant and we accept the grievance of the complainant. The Complainant  argued that the O.ps have sold a defective TV    to the complainant and claimed that the O.ps caused deficiency in service and deprived of the complainant of enjoyment of the TV set as the Opposite Party failed to rectify the defects though it occurred within its warranty period   which caused mental agony and harassment to the complainant.

Now we have to see whether there was any negligence of the Opposite Parties  in providing  after sale service  to the complainant as alleged ?

We perused the documents filed by the complainant.  Since the TV set  found defective within its warranty period   and   the complainant  informed the Opposite Party  regarding the defect but the  Opposite Party   failed to remove  the defect which the Opposite Party admitted that due to non availability of spare parts the defects in the LED TV could not be removed and offered the complainant to refund the price of the LED TV after deduction of depreciation value. At this stage we hold that  if the TV set   require any  servicing  within its warranty period and if the Opposite Party failed restore its normal condition, then it can be presumed that it is defective one and if the defective TV could not be repaired by the Opposite Party Company, the complainant is entitled to get refund of the price of the article or to replace a new  one  and also the   complainant is entitled  and has a right to claim compensation and cost to meet his mental agony , financial loss.  In the instant case  as it  appears that the LED TV  which was purchased by the complainant had developed  defects  within its warranty period and the Opposite Party were unable to restore its normal functioning during the warranty period. The complainant invested  a substantial amount and purchased the LED TV   with an expectation to have the effective benefit of use of the article. In this case, the complainant was deprived of getting beneficial use of the article and deprived of using the LED TV   and the defecates could not be   removed by the Opposite Party within its warranty period . It is seen from the record that the complainant has used the TV set for a period of near about three years without any defect. The stand of Opp.Party No.4  and his offer  is genuine in  the eye of law and depreciation value needs to be deducted from the original rate. Hence, as per our opinion the complainant after deduction of  depreciation amount @ 10% i.e. Rs.20,044/-  is entitle to get back which meet the ends of justice in the above circumstances.

The Opposite Party No.1  who is the dealer has immediately taken necessary step and he has mentioned in his versi0on that as per advice of the Opp.Party No.2 he sent the defective TV to the Opp.Party No.2 for necessary repay.  The Opposite Party  No.2 has taken a contradictory stand and denied   every knowledge regarding the TV. The Opposite Party No.3  has  been deleted as party by the complainant. When Opposite Party No. 1 admitted  that he dispatched the defective TV to the Opposite Party  No.2  land also made various quarry regarding the position of the defective TV , no report  was received  from OP No.2.  In the circumstances, we believed that the stand  of Opposite Party No.2 is false  to avoid his responsibility.   

Hence, in our view the complainant has right to claim compensation to meet  his mental agony, financial loss. Hence,  it is ordered.

ORDER

                        The  Opposite Parties  are jointly and severally directed to refund the cost of the  LED TV i.e. Rs.20,044/-   and pay  compensation of Rs.5,000/-  for mental agony undergone by the complainant and cost of Rs.1000/- . Further, we direct the Opposite Parties  to pay the aforesaid award amount  within 45 days  from the date of receipt of this order, failing which the Opposite Parties  are liable to pay  interest  @  12%  p.a. on the above awarded amount till  the date of payment. Accordingly the complaint is allowed.

                        Pronounced in open forum today on this   day 31^st  day of March,2018 under the seal and signature of this forum.

                         A copy of this order as per the statutory requirements , be forwarded to the parties    free of charge.

Member                                                 Member                                   President

Documents relied upon:

By the complainant:

1. Xerox copy of  Retail Invoice  No.BB/RI-1040 dt.11.10.2013
2. Xerox copy of  Warranty Card
3. Xerox copy of Advocate Notice

By the Opp.Party No.4:

1.  Copy of Resolution Passed by the Board of Directors of Toshiba India Pvt. Ltd.
2. Copy of  Customer Details
3. Copy of  Warranty Card
4. Copy of Warranty Details
5. Copy of SR List
6. Copy of text message to the complainant mobile No.8457916470

                                                                                                           President