Date of filing:16.12.2015                                                                          Date of disposal:06.04.2018

Complainant: Arun Kumar Hazra, S/o. Sri Ashok Kumar Hazra, resident of Badamtala, Kochi

                           Pukur, P.O., P.S & Dist.-Burdwan, Pin-713101.

-VERSUS-

Opposite Party: 1. Reliance Retail Ltd. (Formerly Reliance Fresh Ltd.), 74/68, Kalna Road,

                                   Curzon Gate, Opposite of Head Post Office, Burdwan, Pin-713101.

                              2. Neosa Electronic Pvt. Ltd., Sony Authorised Service Centre, Boronilpur

                                  More, Near Laltu Smrity Sangha Club, P.O.-Sripally, P.S. & Dist.-Burdwan,

                                  Pin-713103, represented by its Manager.

                           3.  Sony India Private Ltd., having its registered office at A-31, Mohan Co-

                                   operative  Industrial Estate, Mathura Road, New Delhi, Pin No.110044,

                                    represented by its Chairman.

Present: Hon’ble President: Smt.Jayanti Maitra(Ray).

                  Hon’ble Member :  Dr. Tapan Kr. Tripathy.

Appeared for the Complainant: Ld. Advocate, Debdas Rudra.

Appeared for the Opposite Party No.1 :  Ld. Advocate, Sumanta Kr. Mondal.

Appeared for the Opposite Parties No.2 : Authorized person, Samar Mukherjee.

Appeared for the Opposite Party No.3 : Ld. Advocate, Rajdeep Goswami.

JUDGEMENT

This is a case U/s. 12 of the C.P. Act for an award directing the O.Ps. to give a new Sony Camera of same value in place of the defective camera, to pay Rs.50,000/- as compensation for mental pain, agony and harassment and to pay Rs.10,000/- as litigation cost to the complainant.

The complainants’ case in short is that he purchased a Sony Camera from the O.P. No.1 on 26.10.2014 vide Model No.DSC-H300 E32, Product Serial No.S010215871A.  The total value of the said camera was Rs.15,306.01/-.  After receiving the money the O.P. No.1 issued the money receipt of Rs.15,306.01/- in favour of the complainant.  It is to be mentioned that the said camera was covered under two years warranty from the date of purchase i.e. from 26.10.2014 to  25.10.2016.

Within ten days from the purchase the complainant detected some defects in the said Sony Camera i.e. the lens stuck and comes out as well as the lens of the camera was automatically opened and due to said defect the camera was not functioning properly.  The complainant told the defect of the camera to the O.P. No.1.  The O.P. No.1 advised the complainant to go the O.P. No.2, who is the authorized servicing centre of the O.P. No.3.  Thereafter the complainant went to O.P. No.2 service centre on 5.11.2014 and submitted the said camera to O.P. No.2 for servicing.  The O.P. No.2 received the said camera and issued service job sheet on behalf of the complainant and told to take delivery of the camera after five days.

After five days the complainant went to the O.P. No.2 and took delivery of the said camera from the O.P. No.2 but again the said camera was not functioning properly.  Complainant again went to O.P. No.2 and told that said defect were not repaired and as such the said camera was not functioning properly.  The O.P. No. 2 again issued service job sheet and told the complainant to take delivery of the camera after 7 days.  Thereafter the complainant went to the office of the O.P. No.2 after seven days and took delivery of the said camera but this time also said defects were not removed.

On 1.12.2014 the complainant for the third time went to the O.P. No.2 and deposited the said camera for proper servicing and O.P. No.2 issued retail invoice/cash memo/ bill on 1.12.2014 on 1.12.2014 and delivery date was 10.12.2014.  On 10.12.2014 the complainant went to the O.P. No.2 for taking delivery of the said camera.  O.P. No.2 delivered the camera to the complainant without removing the said defects. 

The camera is covered under the warranty period and said camera is suffering from such manufacturing defects, so O.P. is bound to replace a new one in place of defective camera.  Hence, the complainant went to O.P. No.1 for several times and requested them to replace the said camera by a new one but the O.P. No.1did not take any steps till date, which clearly indicates deficiency in service and unfair trade practice on the part of the O.ps.  Being aggrieved and dissatisfied with the conduct of the O.Ps. and to get relief the complainant filed this case before this Ld. Forum. 

The O.P. No.1 contested the case by filing written version stating inter-alia that this O.P. carries on retail business and it does not carry any manufacturing business.  It sells multifarious products of various brands.  The alleged camera which is a product of a reputed company i.e. Sony India Pvt. Ltd., was sold by this O.P. to the complainant and the said product was okay in all respect and in good condition at the time of sell.  Like many other products specifically electronic products, this O.P. has sold the said camera after being displayed about the functioning of the same.  As per usual practice, company (ies) sent their products after verifying and testing each and every products.  This camera also has been sent after going through that process.  So, at the time of selling this camera it was also functioning properly and the complainant has purchased the camera being satisfied. 

After few days of purchase the complainant approached before this O.P. and informed about alleged defects.  This O.P. immediately extended their co-operation and this O.P. informed that O.P. No.2, the authorized service centre of O.P. No.3 and requested to consult with the O.P. No.2. This O.P. is always ready  to co-operate with the complainant. Hence, there is no deficiency in service and unfair trade practice on the part of this O.P. and as such the complainant is not entitled to get any relief as prayed for.

 The O.P. No.3 also contested the case by filing written version and stated that in the instant case the complainant purchased a Sony Cybershot model No.DSC-H300 E32 from O.P. No.1 on 26.10.2014.  Thereafter he approached before the O.P. No.2, service centre on 1.12.2014 alleging some issues in the lens of the camera.  The services engineers duly examined the camera and replaced lens block assembly vide job sheet No.J43010837 and delivered the camera to the complainant’s satisfaction.  It is submitted that the answering O.Ps. always keeps its customers at a very high pedestal and the complainant was offered best services.  Thus, when the complainant approached service centre he has been provided with service solution by the answering O.Ps. but the complainant instead of appreciating the prompt response from the O.Ps., filed a complaint against the answering O.ps. Thus, to allege that there was lack of prompt service is baseless and concocted.  Therefore, it is apparent that the complainant is pursuing the present complaint in most unfair manner for illegal enrichment and hence the present complaint is liable to be dismissed with exemplary cost against the complainant and in favour of O.Ps. 

It is pertinent to mention here that after the above mentioned service request dated 1.12.2014,  the answering O.Ps. did not hear anything from the complainant and straight away the present complaint was filed by the complainant.  Even though the answering O.ps. had requested the complainant vide letter dated 19.1.2016 to approach the authorized service centre in case the complainant is still not satisfied with the performance of the product.  Thus, it is apparent that the complainant is not interested in getting t he issue, if any, to be resolved and pursuing the present complaint with malafide intention of illegal gain.

The complainant alleged the manufacturing defect of the camera but the same cannot be determined on the simpliciter submission of complainant as he has failed to produce any cogent and substantive evidence.  It is a settled proposition of law as pronounced in catena of judgment  by Hon’ble NCDRC in the case of Sushila Automobiles Pvt. Ltd. Vs. Birendra Narain Prasad [2010 SSTPL (CL) 1252 NC], that if the manufacturing defects in the product is alleged by the complainant, then onus of providing the manufacturing defect with credible and cogent evidence lies on the complainant.  In view of the aforesaid proposition of law and in the light of the complaint having failed to bring on record from any expert’s opinion to substantiate the allegations made in the complaint.

Thus it is clear that the captioned complaint filed by the complainant is inundated with whims and fancies.  Further it is an illustration of a speculative litigation to procure unwarranted gain by one’s own wrong.  The present complain under reply is a flagrant abuse of the benevolent provision of the C.P. Act and the complaint under reply merits no indulgence from this Hon’ble Forum.  Hence, the same is liable to be rejected.

DECISION WITH REASONS
            To prove this case the complainant has filed his evidence on affidavit stating all the facts which is stated in the petition of complaint.  O.Ps. were asked to adduce evidence and O.P. No.1 & 3 filed separate evidence on affidavit.  O.P. No.1, who carries on retail business and admittedly he is not a manufacturing entity and sells multifarious product of various brand.  O.P. No.1 stated that complainant verified  and tested the camera at the time of purchase and was satisfied with the camera and it was functioning properly.  So, in selling the camera this O.P. has no deficiency in service and question of unfair trade practice does not arise.  Even when the complainant complaint of non-functioning of the camera on several occasions,  he immediately extended co-operation and informed authorized service centre of O.P. No.3 and complainant  get the defects removed accordingly.

            The O.P. No.3 i.e. the Manufacturing Company submitted that whenever  the complainant as a customer approached the authorized  service centre, the service engineers duly examined the camera and replaced the lens block assembly and delivered the camera with job sheet to the complainant with complainant’s satisfaction.  But the complainant is not interested to approach the authorized service centre, instead of pursued the present complaint with malafide intention and for illegal gain.  There is no cogent and substantive evidence regarding  manufacturing defects in this product as alleged by the complainant.  The O.P. No.3 cited judgment of Hon’ble NCDRC [2010 STPL (CL) 1252 NC] where the Hon’ble National Commission stated that ‘onus to prove a manufacturing defect in a product is on the complainant by way of cogent, credible and adequate evidence supported by an opinion of an expert’.  The complainant failed to submit the cogent evidence regarding manufacturing defects and therefore, he is not entitled to get any relief as claimed by the complainant. As the complainant hopelessly failed to prove manufacturing defect this O.P. prays for dismissal of this case.

            To prove the case the complainant prayed for appointment of an expert to examine the product.  Accordingly, on contest and after hearing both parties in full Sri Siddhartha Goswami, Nature and Wildlife Photograph and Photography Consulted, was appointed as an expert. O.P. does not make any objection in this regard in his appointment.  The Expert, Mr. Goswami submitted his report dated 11.10.2017.  O.P. did not put any questionnaires to the expert to challenge the report though O.P. was given opportunity by this Forum.  The report of the expert clearly goes to show that he opined that camera is not in active condition.  The same is suffering from critical defects in its lens system.  The expert stated the normal situation the lens works in three steps and the second steps that it moves according to the zoom level(focal length) and focusing is achieved by the user.  But in his opinion the camera is always in step (b) where the lens is extended to certain length and showing no movement.  Moreover, the display of the camera is not showing anything and appears to be dead even after pressing the power button.  He opined that  the camera is not in a working condition and appears to be dead due to  some major  fault in the lens system or software malfunction.  Therefore, he also opined that due to misuse of the camera some permanent damage may caused to the lens system but O.P. in this case never came forward with sufficient and cogent evidence to prove that there is any misuse in handling the camera by the complainant causing any permanent damage in the lens system.  In fact the O.P. No.3 never came forward to challenge the report of the expert that there is no defect in the camera which he stated in his written version as well as in his evidence. 

From the evidence of the parties on record and also after giving a patience hearing of the arguments advanced by the parties it appears to this Forum  that complainant has been able to prove his case that the camera is not in active condition inspite of his visiting the authorized service centre on three occasions to getting the defects remove.  But ultimately the camera is not functioning and it is also proved by the report of the expert Siddhartha Goswami dated 11.10.2017.  In such circumstances, the prayer of the complainant should be considered in this case.  However, O.P. No.2, authorized service centre did not appear to contests the case inspite of receiving the notice of this Forum.  The complainant has been able to prove that the camera was not functioning properly for its defects.  Therefore, the complaint case succeeds in part.  C.F. paid is sufficient.

Hence, it is

Ordered

that the case be and the same is allowed in part on contest against the O.P. No.1 & 3 and exparte against the O.P. No.2 without any cost.

The O.P. No.1 & 3 are jointly or severally directed to replace a Sony make camera of same value in place of defective camera being model No. DSC-H300 E32, Product Serial No.S010215871A to the complainant.  The O.P. No.1 & 3 are further directed to pay compensation of Rs.4000/- for mental pain, agony and harassment and to pay Rs.1000/- towards litigation cost to the complainant.  The above directions be complied with within 45 days from this date of order, failing which the complainant is at liberty to execute the same in accordance with law.

Let the copies of this order be supplied to the parties free of cost.

                         Jayanti Maitra (Ray)

             Dictated and corrected by me.                                                          President       

                                                                                                                    D.C.D.R.F., Burdwan

                   Jayanti Maitra (Ray)                   

                           President

                   D.C.D.R.F., Burdwan

(Dr. Tapan Kr. Tripathy)

Member

D.C.D.R.F., Burdwan