Orissa

Rayagada

CC/108/2018

Ghana Shyam Nayak - Complainant(s)

Versus

Proprietor Doordarshan Digital Shoppe - Opp.Party(s)

Self

20 Aug 2020

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No.  108/ 2018.                                           Date.     20. 8  .2020

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                       President.

Sri   Gadadhara   Sahu,                                         Member.

Smt. Padmalaya  Mishra,                                     Member.

 

Sri Ghanashyam Nayak, S/O: Naran Nayak, Utkalmani Nagar,   Po/ Dist:Rayagada   (Odisha). 765 001,  Cell No.98612-33111.                                                                                                                            …. Complainant.

Versus.

1.The   Manager, Doordarshan Digital Shoppe,  Rayagada(Odisha).

2.The Manager, Samsung  India Electronics Pvt. Ltd.,  Bhubaneswar.

3. The  Manager, Samsung  India Electronics Pvt. Ltd., Regd. Office, A-25, Ground Floor, New Delhi- 110044.                                    .…..Opp.Parties

.

Counsel for the parties:                         

For the complainant: - Self.

For the O.Ps :- Sri  K..Ch.Mohapatra, Advocate, Bhubaneswar.

 

JUDGEMENT

The  crux of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for  non rectification of Samsung LED T.V.   which was found defective within warranty period and not removed the defects  for which  the complainant  sought for redressal of the grievances raised by the complainant. 

Upon  Notice, the O.Ps  put in their appearance and filed written version in which  they refuting allegation made against them.  The O.Ps  taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.P. Hence the O.Ps prays the forum to dismiss the case against  them  to meet the ends of justice.

Heard arguments from the learned counsel for the O.Ps   and from the complainant.    Perused the record, documents, written version  filed by the parties. 

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.

                                                        FINDINGS.

There  is no dispute that   the  complainant has purchased  Samsung  LED   T.V. having  its model 43K5300ARMXL 0A4Z3ZEJ 301106 on Dt. 28.9.2017   from the O.P. No.1  bearing  tax  invoice  No.552 on Dt.28.09.2017  on  payment  of  consideration  a sum of Rs.55,000/-. The O.Ps. have   sold  the  said set to the complainant providing  one year warranty period. (copies  of the       warranty  card  is in the file which is marked as Annexure-I ).

After  6 (six) months the complainant  has  shown  defective in the above set i.e. it became out of order as the block spot  on the display screen found and was not functioning properly. Hence  on Dt. 23.05.2018  the complainant  approached the  service centre  situated at Rayagada(Odisha)  for its rectification(copies of the   service centre report is in the file which is marked as Annexure-2). The   Service centre has not rectified the  same within the warranty period.

            The main grievances of the complainant is that due to non  rectification of the  above  set perfectly  within warranty period  he wants  refund  of purchase  price of the above set. Hence this C.C. case.

The O.Ps in their written version  contended that  as per the request of the complainnt the Service Engineer  replaced the panel of the  LED T.V.  Again after few days of said repair, the complainant has made allegation on Dt. 4.7.2018 through  on line vide job No.4260205902 for defect  of his alleged T.V.. The complainant  demanded to replace the T.V.  in warranty but the  Service Engineer expressed his inability to replace the  above  set as it was out of policy and it  was quite  impossible  for him and  requested  to replace the panel of the above set.  But  the  complainant  flatly refused  to replace  the panel of the  above set and demanded to replace the T.V.  Hence the complainant  has filed this C.C. case before the forum.

The O.Ps in their written version relied  citations which are mentioned  here:-

It is held  and reported in  CPJ – 1997(2) page  No. 81 in the case of Punjab Tractors Ltd.  Vrs.  VirPratap  where in the   Hon’ble  National Commission observed  “Where the complaints of the complainant were duly and promptly attended by the O.P. and no reliable evidence was produced by the complainant in support of his  case that he suffered a loss due to inconvenience caused to him, the  complainant in this case is not entitled to any  relief. In the present case the OPs have duly attended the complaints of the complainant and have therefore never been deficient in providing the services  to the complainant.”

Further it is held and reported in  CPJ 1992 (1) page No. 97 in the case of Sabeena Cycle emporium chennakhaada Vrs.  Thajes Ravi  M.R. Pancha Villa VedarEzkhone P.O.  where in the  Hon’ble State CDR Commision, Kerala  observed  “Where the complainant alleges defects in the goods, the forum is bound to determine this fact on the basis of clear evidence by way of expert opinion. The aforesaid proposition of law has also been reaffirmed by the  Hon’ble State Commission,West Bengal  in the case of  Sri Keshab Ram MahtoVrs. Hero Honda Motors Ltd and Anrs.  2003(2) page No. 244. 

Again  it is held and reported  in AIR-2006 S.C 1586   in the case of  i.e. Maruti Udyog Ltd. Vrs. Susheel  Kumar Gabgotra and others where in the Hon’ble Supreme Court observed “Warranty conditions clearly refers to replacement of defective part not the  car – Not a case of silence of a contract of sale of warranty”. The O.Ps vehemently contended that in this case there is no defect in the  mobile set of the complainant, but the complainant has filed this fabricated complaint only to  tarnish the reputation of the O.Ps  and to secure the unlawful gains from the O.Ps.

 Further is it held and reported  2014(3) CPR- 724   in the case of Bajaj Tempo Ltd Vrs. Shri  Ajwant Singh & Another where in   the  Hon’ble National Commission opined that “Manufacturing defect must be proved by expert opinion”.

For better appreciation  this forum  relied citations  which are mentioned here under:-

It is held and reported in Current Consumer Case  2005  Page No. 527 (NS) in the case of Meera&Co Ltd. Vrs. ChinarSyntex Ltd  where in the Hon’ble National Commission  observed “Consumer-    Generating set purchased -  defects developed  during  warranty  period - repairs done on payment - dealer can not be absolved from his liability   because manufacturer has not  been impleaded- dealer deficient in service- order  to dealer   refund   amount with interest to the complainant.”

Again It is held and reported  in CTJ-2005, Page No. 1208 where in  the hon’ble  National Commission   observed  “Both the dealer & manufacturer of the  product having defects  in it, are jointly and severally liable to the  purchaser, because he knows only the dealer from whom he purchased that  product and not its manufacturer”. 

Further   It is held and reported in CPR- 2009 (2) Page No. 42  where in  the Himachal Pradesh  State Commission  observed “ we may mention here that it is by now well settled that the C.P. Act, 1986 is a welfare  legislation  meant to give  speedy  in expensive and timely justice to the parties. Similarly it is also well know that where  two views are possible, one favourable to the consumer needs to be followed.”    

            Again it  is  held and  reported in  Consumer Law today 2014(1) page No. 153 where in the  Hon’ble  Goa State Commission observed “The tax invoice duly   signed by dealer can be considered to be an agreement between the parties subject to which the   sale was   made to the  consumer – liability for defect in article sold both the dealer and manufacturer  are jointly and severally. 

Further It is held and reported in C.P.R-2012(1) PAGE No.  303  in the case  of Loga Prabhu Vrs. Adonis Electronics Pvt. Ltd and ors  the Hon’ble  State  CDR Commission, Chennai  where  in observed  “Consumer  is entitled to free service/replacement during warranty period”.

Again  It is held and reported in NC  & SC on consumer cases (Part-VI) 1986 to 2005  page  No. 9089(NS) the Hon’ble National Commission, New Delhi where in observed   “ Motor Vehicle- dealer’s responsibility- vehicle sold by dealer after receiving payment- manufacturing defect- dealer can not be absolved  from his liability in refund the price or replacement-  jointy  liable with manufacture”.

We are of the opinion that the case  is relating to defective goods  which is covered under section 2(i)(f) of the C.P. Act. The C.P. Act  which provides that  “Defective means any fault, in imperfection or shortcoming in the quality, quantity, potency, purity are standard which is required to be maintained by or under any law for the time being in force”.                                                                  After amendment made by  the C.P. Act   of 2002 wherein it  is made clear that when a complainant  is using the product of the  manufacturing company   purchased from the  present  O.P.  is also coming within the definition of consumer and the service provided  or attached to the said  goods in the shape of warranty or guarantee is also available to the users.

Since the  above  goods     was sold by the   O.P, it can not evade  liability  for repair/replacement of spare parts on the ground of manufacturer of the  above goods  with whom the  complainant did not have any privity of contract , having  not been impleaded as party to the complaint  or service was to  be  affected. Further the complainant  will be a consumer within the meaning of Section 2(1)(d) of C.P. Act, 1986.

            Further no trader or  manufacturer can escape from its liability of selling defective goods much less the defects that are manufacturing and irreparable. In the instant case  the consumer has been left high and dry due to the defective  set  and faulty workmanship  used at the time of manufacturing the above set . It was with an object to protect the interest of the consumer  and curb  the tendencies of unscrupulous manufacturers and dealers who care  for the quality or  standard which is required to be maintained in relation to the goods  the Consumer  Protection Act was brought on the  statute book and  by virtue of provisions of Section -14 of the Consumer Protection Act,1986 the Consumer Fora  has the power to direct the dealer to do one or more of the following things, namely:-

                        Sec.14( c) : to return the complainant the price, or as                                               the case may be, the charges paid by the complainant ,

                         (d) to pay such amount as may be awarded by its  as                                              compensation to the consumer for any loss or injury                                                suffered by the consumer due to the negligence of    the  opposite party; 

            The word ‘ defect’ as defined under Section 2(1)(f) of the Consumer Protection Act means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or ( under any contract, express or implied, or ) as is claimed by the trader in any manner whatsoever in relation to any goods and  the term ‘ deficiency in service ‘  as per Section 2(1)(g) means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law  for the time being in force or has been undertaken to be performed by a person in pursuance  of a contract or otherwise in relation to any service.           

            In the present case in hand    the defects therein developed  within warranty period of one year. For the best interest of justice in our opinion the O.Ps. should  replace   LED    T.V    with a new  one defect free with fresh  warranty, as the  O.Ps have  not rectified the defects of the above  set  inspite of  replacement of  panel of the  above set which was admitted by the O.Ps in their  written version.

Further we observed the O.Ps are not rendering proper service to the complainant establishes their callousness and whimsical attitude. The  forum feel that the O.Ps services are deteriorating and does not follows   ethics.  Due to the same attitude  the complainant deprived of  to get the good service during warranty period.

In view of the above discussion relating to the above case and  In Res-IPSA-Loquiture  as well as  in the light of the settled legal position  discussed  as above referring citations the plea of the  O.Ps to avoid the claim  which is Aliane Juris. Hence  we allow the above complaint petition  in part.

Hence to the meet the ends of justice the following order is passed.

                                               

ORDER.

In resultant the complaint stands allowed in part against  O.Ps  on contest.

The  Opposite Party  No.3(Manufacturer)   is      directed to  replace the Samsung  LED   T.V  set  with a new one  set  defect free  with fresh  warranty   to the complainant within  45   days  from the date of receipt of this order,  No cost.

The  O.P. No.1 & 2 are  directed to refer the matter to the O.P. No.3 for  early compliance of the above order.

This  is to  be  complied   by the O.Ps.  within 45 days  from the date of receipt of this order. 

Copies of the order be served  on the parties free of cost  as per rule.

Dictated  and corrected by me. 

Pronounced on  this               20 ^th.  August,  2020. 

 

Member.                              Member.                                          President.