Date of Filing: 12/04/2010
Date of Order: 29/02/2012
BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE - 20
Dated: 29th DAY OF FEBRUARY 2012
PRESENT
SRI.H.V.RAMACHANDRA RAO, B.Sc., B.L., PRESIDENT
SRI.KESHAV RAO PATIL, B.COM., M.A., LL.B., PGDPR, MEMBER
C.C. NO. 806 OF 2010
Shri Siva Kumar. K.S,
Aged About 26 years,
Mr. Kuttappan Nair P,
R/o. No.96/3, 1st Floor,
Chamundinagar Main Road,
R.T. Nagar Post,
BANGALORE-560 032.
(Rep. by Ms. Shashikala K.N, Advocate) Complainant.
-V/s-
(1) RELIANCE DIGITAL,
No.74, Cunningham Road,
Bengaluru-560 052.
Rep. by its Manager.
(Rep. by Advocate Sri.C.K.Dharaneesswaram)
(2) Shri Mukesh D. Ambani,
Chairman & Managing Director,
Reliance Industries Limited,
Makers Chambers-IV, Nariman Point,
MUMBAI-400 021.
(Rep. by Advocate Sri.Srinivasa.M)
(3) The Managing Director,
Sony India Pvt. Ltd.,
No.239, Mysore Road,
Pantrapalya, Bangalore-560 039.
(4) The Managing Director,
Sony India Pvt. Ltd.,
A-31, Mohan Cooperative Industrial Estate,
Mathura Road, New Delhi-110 044.
(Rep. by Advocate for OP.3 & 4 Sri.Cariappa & Co.
Joshua H Samuell) Opposite parties.
BY SRI.H.V.RAMACHANDRA RAO, PRESIDENT
ORDER
The brief antecedents that led to the filing of the complainant Under Section 12 of the Consumer Protection Act, seeking direction to the opposite parties to pay the sum of Rs.83,240/- with interest @ 24% per annum on Rs.33,240/-, are necessary:-
The 2nd opposite party had launched the 1st opposite party. The 4th opposite party has its outlet in the 1st opposite party and the 3rd opposite party is the local office and service unit of the 4th opposite party. On 11.07.2008 the complainant purchased from 1st opposite party a Sony Digital Music Player NWD – B103F / WCE, bearing serial No. – SO1 – 7527430 – E which was manufactured by the 4th opposite party for a sum of Rs.2,990/-. About four months later as the said music player stopped functioning. The complainant visited the 1st opposite party wherein met Mr. Naveen on 10.12.2008 and handed over the product along with the warranty card who issued a job sheet in this regard. He was given the number 080-25211050. As nothing was heard later the complainant telephoned to the said number. As there was no response the complainant went and met Mr. Shiva who also had no knowledge about the matter. But on verification of the records informed the complainant that the defective product is not repairable and hence informed the complainant that it will be replaced by another brand new produce within a week. As nothing was heard later the complainant met Shiva in January who had already forgotten the matter and hence he verified the records and stated that he will call the complainant on the next day in the matter. As he did not hear anything the complainant met Mr. Haris who said that he will inform the complainant by 08.01.2009. He also forgot the matter. The complainant lost all his very important data that includes programs/documents/pictures/music/songs which he had downloaded over a period of about four months. He suffered loss in this regard. The complainant issued notice to the opposite parties on 05.02.2009. On 23.02.2009 the complainant received two letters of the 3rd opposite party dated: 11.02.2009 and 18.02.2009. The copies of the same was also received and from H.S. Balasubramanya the stores Manager of the 1st opposite party. The said Nalini the author of the said letters spoke to the complainant in a rude way. The complainant is not interested in receiving a different product. Hence he issued a rejoinder on 24.02.2009 in the matter. The complainant received a letter of the 1st opposite party dated: 21.03.2009 and another letter of the 3rd opposite party to which the complainant issued rejoinder on 01.04.2009. The 3rd opposite party replied to it on 17.04.2009. Thereafter a postal cover posted on 02.05.2009 was received by the complainant which contained only a blank sheet of paper and nothing else. Hence the complaint.
2(a). In brief the version of the opposite party No.1 are:-
On 11.07.2008 the complainant purchased a Sony Network Walkman NWD-B103F/WCE bearing serial No. S01-7527430 – E from the opposite party No.1 for Rs.2,990/-. It was the sealed package which contained a user manual. On 10.12.2008 the complainant reported to the opposite party of certain defects in the said product for sending it for repair or replacement to, to the 4th opposite party. On which date the complainant did not provide the original invoice. On 24.12.2008 the complainant submitted the purchase invoice. On 04.01.2009 the complainant collected the job-sheet. On 30.01.2009 the opposite party Nos. 3 and 4 affirmed to this opposite party stating that it is beyond repair and expressed willingness to replace the same with the latest product launched by them in the market. This was conveyed over phone to the complainant who accepted it. On 10.02.009 this opposite party received the new model of the said produce in replacement and contacted the complainant over phone on 10, 16 and 18.02.2009 and repeatedly requested him to visit this opposite party. But he did not visit to collect the material. On 14.02.009 this opposite party received the notice dated: 05.02.2009 making unfounded allegation. On 20.02.2009 this opposite party replied to the said notice. Even then the complainant refused to accept the replacement and issued another notice dated: 24.02.2009. On 21.03.2009 this opposite party issued reply. In response to the 3rd notice the opposite party issued a Demand Draft bearing No.92011255 (721215) dated: 30.04.2009 for Rs.2,990/- drawn on Vijaya Bank, Bangalore and it was sent to the complainant by RPAD along with the covering letter dated: 01.05.2009. The complainant received the said letter and Demand Draft. The complainant kept quit for almost a year and later filed this complaint. On learning the non-receipt of the demand draft by the complainant the opposite party lodged a complaint with the concerned postal authorities on 21.05.2010. All the allegations to the contrary are denied.
2(b). In brief the version of the opposite party No.2 are:-
Opposite party No.2 is the Chairman and the Managing Director of Reliance Industries Limited and the 1st opposite party from whom the complainant had allegedly purchased the goods are totally different company. Though these companies form the same group, still they are distinct entities. The 2nd opposite party is not the in-charge, nor responsible for any day to day affairs of the 1st opposite party. The complainant has no specific grievance against the 2nd opposite party. The 2nd opposite party is not aware of any of the matters traversed.
2(c). In brief the version of the 3rd & 4th opposite parties are:-
The product of the opposite party No.4 are sold to customers through its dealers across the country. Opposite party No.1 is one such dealer. Opposite party No.3 is the branch of the opposite party No.4. Opposite party No.2 is an unnecessary party to the proceedings. There is no deficiency in service. As per the warranty, in case there is defect in the player of the complainant within the stipulated period and if it is beyond repair then the opposite party has to provide a replacement of the same to the complainant and the opposite parties are ready and willing to do the same and even in the reply it has been mentioned so. When the defect in the music system was brought to the notice of the opposite party and upon being satisfied about the same that it cannot be repaired the replacement was offered by the opposite party immediately and accordingly suitable replacement was sent but the complainant refused to receive the same for the reasons best known to him. The notices were replied properly. All the allegations to the contrary are denied.
3. To substantiate their respective cases the complainant, 1st opposite party and the 3rd & 4th opposite parties have field their respective affidavits. All the parties have submitted their documents. The arguments were heard.
4. The points that arise for our consideration are:-
- Whether there is deficiency in service?
- What order?
5. Our findings on the above points are:-
Point (A) & (B): As per the final order
For the following:-
REASONS
POINT (A) & (B):-
6. This complaint was pending before the Principal District Consumer Disputes Redressal Forum, Cauvery Bhavan, Bangalore, wherein the pleadings and evidence were all completed. The complainant had also submitted certain interrogatories that were answered by the concerned. The complainant had made certain applications for recalling the opposite party for cross-examination that was rejected by the Principal District Consumer Disputes Redressal Forum, Cauvery Bhavan, Bangalore. The complainant approached the Hon’ble State Commission in Transfer Application No.06 of 2011 wherein on 09.12.2011 Hon’ble State Commission has transferred this case from the Principal District Consumer Disputes Redressal Forum, Cauvery Bhavan, Bangalore, to this forum to dispose-of the same in accordance with law after giving opportunities to both the parties. As the records were not received on 02.01.2012 the date which was given by the Hon’ble State Commission for appearance of the parties the notices were ordered to be issued to both the parties and advocates on 01.12.2012 and case was posted to 23.02.2012. On 23.02.2012 all the counsels of all the parties appeared they were heard and at the request of the counsel for the complainant the case was adjourned to 28.02.2012 for further arguments. On 28.02.2012 the counsel for the complainant submitted a Memo stating that her address and the address of the complainant is changed and also submitted a list with documents. The arguments were heard in full.
7. Reading the pleadings in conjunction with the affidavits and documents on record, it is an admitted fact that the opposite party No.2 Sri. Mukesh D. Ambani is the Chairman and the Managing Director of Reliance Industries Limited. The opposite party No.1 is not Reliance Industries Limited but it is Reliance Digital, and it is one of the group of the Reliance Industries. It is also an admitted fact that the opposite party No.4 is the manufacturer of Sony brand electronic items and opposite party No.2 is its branch office at Bangalore and opposite party No.4 markets its products through opposite party No.1. Merely opposite party No.2 is the Chairman and Managing Director of the Reliance Industries Limited how can he be impleaded as a party in this proceeding? There is no privity of contract between the complainant on the one side and the opposite party No.2 on the other side to any extent in any manner whatsoever. Opposite party No.2 admittedly is not doing or in the day today affairs of the opposite party No.1. When the opposite party No.1 himself is added as a party to the proceedings why opposite party No.2 has to be added as a opposite party? There is no answer.
8. Here opposite party No.2 is neither the manufacturer nor distributor nor dealer of the Sony products manufactured by the opposite party No.4. It is opposite party No.1 who is the dealer of this products. That has been impleaded as a party. Hence impleading opposite party No.2 as a party is nothing but mis-joinder of necessary parties.
9. Further when the manufacturer i.e., opposite party No.4 is added as a party, why its branch at Bangalore, i.e., opposite party No.3 is added as a party to the proceedings? There is no answer. There is no privity of contract between the complainant and opposite party No.3 at Bangalore. Merely the complainant has purchased the material manufactured by opposite party No.4 from opposite party No.1 it does not mean all the branches of the opposite party No.4 or all the Board of Directors of the opposite party No.1 has to be added as a party. That means including opposite party No.3 is also bad for mis-joinder of necessary and proper parties.
10. Reading the pleadings in conjunction with the affidavits and documents on record, it is admitted that the complainant purchased Sony Digital Music Player NWD – B103F / WCE, bearing serial No. – SO1 – 7527430 – E from opposite party No.1 on 11.07.2008 and paid the amount through his credit card. It is also an admitted fact that on 10.12.2008 the complainant went to the opposite party No.1 and gave the said product to the opposite party No.1 stating that it stopped functioning. It is also an admitted fact that the opposite party No.1 sent it to the opposite party No.4 who on verification found that it is not repairable, it has manufacturing defect and sent replacement to the opposite party No.1, the new model NWZB133F/BCF serial No. S-01-7228189 – N and this is lying with the opposite party No.1 even today.
11. It is also an admitted fact that new replacement was not acceptable to the complainant stating that it does not contain the configuration as the old model had. The complainant never stated how the new model is different from the old model. In these days electronic products will be upgraded once in three months or six months and new products will be issued. Hence the opposite party No.4 as a manufacturer of the product has replaced with the new model, but the complainant, for the reasons best known to him, has refused to receive the same. The contention of the complainant is that the old model had a different configuration than the new model. The opposite party No.4 contended that the new model they have replaced had all the configuration of the old model and also has three new items. The complainant has failed to show how the new model is different from the old model. Anyway there is some delay in giving the new model also. In the meanwhile the complainant has purchased the Apple computer to suit his convenience as contended.
12. It was contended by the learned counsel for the complainant that complainant had stored certain materials in the product in the music system and that is lost. This is a bald statement made by the complainant. In the music system what are the materials that he has stored? How it is lost? Is not at all explained. The complainant has stated that to unearth material in the product he has spent lot of time and energy. There is no material for it. Except his bald statement in this regard. What are the materials he has downloaded or stored in the product? How or when it was downloaded? How it was restored subsequently? When it was restored? Those details are absolutely not forth coming.
13. In any event the opposite party No.1 according to it has sent a letter to the complainant on 01.05.2009 with the DD for Rs.2,990/-. The complainant states that he has received a cover with a blank paper and no draft was there. The opposite party No.1 has lodged a complaint to the postal authorities stating that the DD has not been received by the complainant and the postal authority has to enquire about it. That means the DD has not been received by the complainant. There is no proof to show that the DD has been sent to the complainant. The counter file of the DD is not produced. The opposite party No.1 has not taken any steps to show that the DD has been received and encashed by the complainant from 2008 till date. If at all the complainant has received the DD certainly he would have encashed it, but there is no proof to show that the complainant has encashed the DD much less received it. Anyway the opposite party No.1 admits that he is liable to pay to the complainant the amount of the product. Anyway from 10.12.2008 the complainant is deprived of the money or the music system. Here the opposite party No.4 has not sent the music system replacement directly to the complainant though it knew that it is a defectful one. And the complainant has issued notice to it, even then it has not sent the replaced product to the complainant. Hence under these circumstances if we direct the opposite party Nos. 1 & 4 to pay Rs.2,990/- together with interest @ 12% per annum from 10.12.2008 until payment along with cost of this litigation we think that will meet the ends of justice.
14. It was contended by the learned counsel for the complainant that the complainant himself has incurred Rs.12,000/- as cost paid to his advocate. It was contended by the learned counsel for the opposite parties that the advocate for the complainant is none other than the mother of the complainant. Be that as it may. Merely the complainant and his advocates are relatives it does not mean the advocate cannot be engaged and the advocate cannot charge the complainant. Merely the complainant has paid money to his advocate it does not mean the opposite party is bound to reimburse all the amounts purport to have been paid to the advocate. Even the receipt for having paid such huge amount towards the notice charges is not before the Forum. The complainant would have gone to legal services authority where he need not have paid any amount to advocate.
15. Further it was contended that the opposite party has falsely stated in the reply notice regarding the date of writing of the letters and the original forms which with the complainant. Be that as it may. It may prove only negligence or unfair trade practice of Nalini the personnel of opposite party No.1.
16. At the time of arguments, on 28-02-2012 the learned counsel for the complainant had filed a memo with 6 documents and a citation. These 6 documents are Purport to be the internet download with respect to the opposite parties 1 & 2. These are in no way connected to the facts and circumstances of this case. There is no pleadings with respect to these 6 documents i.e., complaints against the OP-1 and OP-2 and certain news. These have no evidentiary value and not relevant for adjudication of this complaint.
17. The complainant has cited the decision reported in III 2009 CPJ 184. There is no dispute about the proposition of law laid down therein. The said decision is not applicable to the facts and circumstances of this case. Discussing and distinguishing will only bulge and bulk record which is prohibited in Regulation 18 (5) of C.P. Regulation 2005.
18. Hence we hold the above points accordingly and proceed to pass the following:-
ORDER
1. The complaint is Allowed-in-part.
2. The opposite parties 1 & 4 are directed to pay to the complainant the sum of Rs.2,990/- together with interest thereon @ 12% per annum from 10.12.2008 until payment within 30 days from the date of this order.
3. If the said opposite parties 1 & 4 fails to pay the said amount as ordered at serial No.2 above within 30 days then they shall pay the said amount along with compensation of Rs.5,000/- each to the complainant within 45 days from today.
4. The opposite parties 1 & 4 are directed to pay to the complainant a sum of Rs.2,000/- each as costs of this litigation.
5. The opposite parties 1 & 4 are directed to send the amounts as ordered at Serial Nos. 2 to 4 to the complainant by way of DD through RPAD and submit the compliance report to this Forum with necessary documents within 75 days from the date of this order.
6. Return the extra sets filed by the parties to the concerned as under Regulation 20(3) of the Consumer’s Protection Regulation 2005.
7. Send a copy of this order to both the parties free of costs, immediately.
(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this the 29th Day of February 2012)
MEMBER PRESIDENT
