DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA (PUNJAB)<br /> <br /> CC. No. 53 of 22-02-2007<br /> Decided on : 11-05-2007 <br /> <br /> Pardeep Kumar S/o Sh. Lekh Raj, R/o Village Nandgarh Tehsil & District Bathinda.<br /> .... Complainant<br /> Versus<br /> <br /> 1.Shanti Colour Lab, Railway Road, Bathinda through its Prop/Partner at 4 Gole Diggi Market, The Mall, Bathinda Branch No. 4<br /> 2.Kodak India Ltd., Office Western Express Highway Opp. Grand Hyatt Vokola Santacuz (E), Mumbai 400 055 through its Managing Director/Prop/Partner(Manufacturer of Camera etc.) <br /> ... Opposite parties<br /> <br /> Complaint under Section 12 of the Consumer Protection<br /> Act, 1986.<br /> <br /> QUORUM <br /> <br /> Lakhbir Singh, President<br /> Hira Lal Kumar, Member<br /> Dr. Phulinder Preet, Member<br /> <br /> For the Complainant : Sh. Charan Singh Virk, Advocate.<br /> For the Opposite parties : Sh. K .C Bhanota, Advocate, for opposite party No. 1. <br /> Opposite party No. 2 exparte <br /> O R D E R<br /> <br /> LAKHBHIR SINGH, PRESIDENT<br /> 1. Kodak Digital Camera bearing No. KCGEF 54708059 and Cell charger were purchased by the complainant from opposite party No. 1 for a consideration of Rs. 6700/- vide retail invoice No. 13754 dated 12.8.06. He was using it. After three days after the day of purchase, some defect had crept in it. He came to the shop of opposite party No. 1 for getting the camera repaired. It was kept by opposite party No. 1. Receipt in this respect was given on 21..8.06. He was apprised by opposite party No. 1 that if he wants to get it repaired, he would have to pay Rs. 3,000/-. Accordingly, complainant had handed over Camera to opposite party No. 1 for repairs. On 20.2.07 complainant in the accompany of his brother came to the shop of opposite party No. 1 and made request that Camera be returned to him. Opposite party No. 1 gave slip to him (complainant) saying that he should go to Mr. Neeraj Gupta of M/s. Gupta Studios, Near Rakhi Cinema, Ludhiana, for getting the Camera repaired. Complainant alleges that opposite party No. 1 had malafide intention. It did not repair the Camera at the instance of opposite party No. 2 within the warranty period of one year. Hence, there is deficiency in service on the part of opposite party No. 1. It is further averred by him that he has undergone mental tension, agony and financial loss. He could not use the Camera for the purpose for which it was purchased. No assurance was given by opposite party No. 1 to the effect that camera would be repaired if visit was paid to Ludhiana. In these circumstances, instant complaint under Section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as `Act') has been preferred by the complainant seeking direction from this forum to the opposite party to pay him compensation for harassment, mental tension and financial loss to the tune of Rs. 10,000/- and Rs. 6700/- as price of the Camera which is in possession of opposite party No. 1 besides cost of the complaint.<br /> 2. Opposite party No. 1 filed its version taking legal objection that complaint is not maintainable in the present form and he has not approached this forum with clean hands. It admits purchase of the Camera. According to it price of the Camera was Rs.6400/-. Rs. 300/- were charged for the accessory i.e. cell charger. Complainant had brought the defective Camera with damaged screen to it on 21.8.06 with the request for getting it repaired. All the products including Camera are repaired at the service centre of the Company at Ludhiana. It is not authorised to repair the Camera. In view of this, slip was issued to the complainant. Screen was not working. It was the result of mis-handling on account of fall of the Camera on hard surface. There was no manufacturing defect. Complainant was apprised of it. He was further told that he would have to pay Rs. 3,000/- for repair of the Camera to which he agreed. Since complainant was proving to be its good customer, opposite party No. 2 was persuaded by it to replace the damaged Camera with a new model Camera. Opposite party No. 2 had agreed in principle to this suggestion on the ground that complainant would have to pay the difference between the price of the damaged Camera and new model Camera. It was worked out as Rs. 1800/-. Instead of giving positive response, he has preferred this complaint. Complainant cannot take benefit of his own wrong. Screen of the Camera is not available in the market. It is not covered under warranty. Model purchased by the complainant has become obsolete. A new model Camera has been introduced in the market. Accordingly spare parts of the model of the Camera purchased are not available. It asserts that it had no malafide intention as it cannot repair and open the Camera. There is no deficiency in service on its part. Remaining averments in the complaint stand denied.<br /> 3. Registered A.D. Post notice of the complaint was issued to opposite party No. 2 on 2.3.07. Neither registered cover nor A.D. was received back till 9.4.07. Accordingly, opposite party No. 2 has been deemed to have been duly served. Non-one came on its behalf. In these circumstances, it has been proceeded against exparte.<br /> 4. In support of his averments in the complaint, complainant has produced in evidence his affidavit (Ex. C-6), photocopy of retail invoice (Ex. C-1), photocopy of receipt (Ex. C-2), photocopy of letter dated 20.2.07 (Ex. C-3), photocopy of front page of box of camera (Ex. C-4) and photocopy of warranty (Ex. C-5).<br /> 5. In rebuttal, on behalf of opposite party No. 1 two affidavits of Sh. Hari Ram, Partner (Ex. R-1 & Ex. R-2), affidavit of Sh., Vikaramjit (Ex. R-3) and photocopies of certificates (Ex. R-4 & Ex. R-5) have been tendered in evidence.<br /> 6. We have heard learned counsel for the parties. Besides this, we have gone through the record.<br /> 7. First argument pressed into service by Mr. Bhanota, learned counsel for opposite party No. 1 is that complainant is not consumer as he had purchased the Camera for commercial use. For this, he drew our attention to the affidavit Ex. R-2 of Sh. Hari Mohan, Partner of opposite party No. 1.<br /> 8. Learned counsel for the complainant countered this argument on the ground that evidence does not establish at all that complainant had purchased Camera for commercial purposes.<br /> 9. We have considered the respective arguments.<br /> 10. No objection to the effect that complainant is not consumer has been taken by opposite party No. 1 in the reply of the complaint. Hence, contention on this aspect is beyond pleadings. Even otherwise if this point is considered, there is no cogent and convincing evidence to establish it. Bald assertion of opposite party No. 1 in Ex. R-2 & Ex. R-3 that Camera was purchased for commercial use is of no consequence. Opposite party No. 1 has not proved any commercial transaction conducted by the complainant with this Camera. No evidence has been led by opposite party No. 1 that snaps were taken by the complainant with the Camera in some private functions for consideration. Allegation that complainant is not consumer set up in the affidavits Ex. R-2 & Ex. R-2 has not gone beyond the stage of allegation. Hence, complainant is consumer as he purchased the Camera from opposite party No. 1 against consideration which was paid vide retail invoice, copy of which is Ex. C-4.<br /> 11. Learned counsel for the complainant vociferously argued that defect in the Camera was observed after 3 days after the day of its purchase. Accordingly, it was handed over to opposite party No. 1 for repairs. Receipt in this respect was given by opposite party No. 1 on 21.8.06, copy of which is Ex. C-2. Thereafter, opposite party No. 1 did not repair the Camera nor got it repaired from any other source. On 20.2.07 slip copy of which is Ex. C-3 was given by opposite party No. 1 to the complainant for contacting Mr. Neeraj Gupta at Ludhiana for getting the Camera repaired. Camera has neither been repaired nor returned so far.<br /> 12. Mr. Bhanota, learned counsel for opposite party No. 1 urged that Camera was damaged due to mis-handling and as a result of fall on the hard surface. It being so, warranty of one year had automatically become void. Complainant had agreed to get the Camera repaired against payment of Rs. 3,000/-. Accordingly, Camera was kept by opposite party No. 1 on 21.8.06 and was sent at Ludhiana for repair. When complainant came slip was given to him to contact Mr. Neeraj Gupta. Screen of the Camera is not available in the market. Model of this Camera had become obsolete and offer was given to the complainant to pay the difference of price between his Camera and Camera of new model to the tune of Rs. 1800/-. Instead of giving positive response, he has filed this complaint. In these circumstances, there is no deficiency in service on the part of opposite party No. 1.<br /> 13. We have considered the respective arguments.<br /> 14. Admittedly warranty with the Camera was of one year. Copy of warranty is Ex. C-5. Warranty was given by the Company with respect to malfunctions and defects in both material and workmansip. Learned counsel for the complainant could not show us that loss or damage to the Camera due to mis-handling such as on account of its fall on hard surface, falls within the purview of warranty. Fact that Camera was handed over to opposite party No. 1 by complainant on account of the fact that defect has crept in its is not in dispute. Only thing mentioned by the complainant in his affidavit as well as in the complaint is that Camera was handed over to opposite party No. 1, three days after its purchase whereas opposite party No. 1 has taken the stance that it was delivered to it on 21.8.06. Plea of opposite party No. 1 that defect in Camera has occurred due to its mishandling and there was damage to the screen and as such, warranty is not attracted appears tenable. If the defect was not on account of mishandling, complainant would have agreed to hand over the Camera to opposite party No. 1 for repairs against payment of Rs. 3,000/-. Accordingly, version of opposite party No. 1 on this aspect of the matter has to be accepted.<br /> 15. Material question for determination is as to whether there is deficiency in service on the part of the opposite parties ? Opposite party No. 2 is the manufacturing Company of this Camera. Complainant does not allege any manufacturing defect in it. Rather, he agreed to pay Rs. 3,000/- for repairs in a way agreeing that it has become defective due to his fault. Accordingly, no deficiency in service on the part of opposite party No. 2 stands proved or can be inferred.<br /> 16. So far as opposite party No. 1 is concerned, it received the Camera for repairs. It was purchased from it on 12.8.06 vide retail Invoice, copy of which is Ex. C-1. There is nothing in Ex. C-1 that in case of defect in the Camera, it would be got repaired from Ludhiana. There is no privity of contract between the complainant and Mr. Neeraj Gupta or Rashi Peripherals Pvt. Ltd. , 15-A, 2nd Floor , Gurmehar Complex, Near Avtar Sweet Shop, Friends Colony, Model Gram, Ludhiana. Evidence does not establish that any step was taken by opposite party No. 1 for repairing the Camera or getting it repaired till 21.2.07. In other words, opposite party No. 1 slept over the matter and woke up after deep slumber on 21.2.07 when complainant came to it and slip copy of which is Ex. C-3 was given to him addressing the same to Mr. Neeraj Gupta. If Camera was not repairable as its model had become obsolete, then what was the necessity for opposite party No. 1 to receive it from the complainant. There is no affidavit of any official of opposite party No. 2 that screen of the old model Camera i.e. Camera of the complainant is not available with the Company or that screen is not manufactured by it. Only thing mentioned in Ex. R-4 dated 5.2.07 is that screen cannot be repaired due to non-availability. Further, it has been mentioned that repair would cost about Rs. 3,000/- subject to the availability of new screen for the old model. Even letter Ex. R-4 does not rule out possibility or availability of the new screen of the old model. It was the duty of the opposite party No. 1 to deal with the concerned person at Ludhiana about the Camera as it has sent the same at Ludhiana for repairs. The responsibility of the complainant was only to pay Rs. 3,000/- to it. It was not his duty to get it repaired from Ludhiana from Mr. Neeraj Gupta or some other person. There is no documentary proof that Mr. Neeraj Gupta or Rashi Peripherals Pvt Ltd., are the authorised person/centre of the Company for repair of Cameras. Certificates dated 5.2.07 and 2.9.06 of Rashi Peripherals Pvt. Ltd., copies of which are Ex. R-4 & Ex. R-5 respectively do not advance the cause of opposite party No. 1. It is not known from them to whom they have been addressed. They have neither been addressed to Mr. Neeraj Gupta nor to the complainant. How can complainant come to know of such certificates. Moreover certificate dated 9.2.06 is that the Camera should be repaired on chargeable basis. There is nothing in it that its screen is not available. Non-availability of the screen of the Camera first came in the certificate dated 5.2.07, copy of which is Ex. R-4. At the risk of repetition, it is again mentioned that even Ex. R-4 does not establish in clear terms that new screen of the old model is/was not available. Opposite party No. 1 after sending the Camera to Ludhiana should not sit over the matter for months together. Even if it is taken for arguments sake that it was not repairable, even then, it was the duty of opposite party No. 1 to collect the same and to return it to the complainant. It could not expected from it to receive the Camera, send the same to Ludhiana and thereafter to sleep over the matter. It was for the complainant to accept the offer or not for getting the Camera of new model on payment of difference in price to the tune of Rs. 1800/- between the price of the old and new model. No document is on the record to show that complainant was bound to accept such offer. If he did not respond to this offer of opposite party No. 1, he cannot be blamed. Till today neither the Camera has been got repaired by opposite party No. 1 nor has it been returned as it is to the complainant. Hence, deficiency in service on the part of opposite party No. 1 is writ large.<br /> 17. Now question arises as to which relief should be accorded to the complainant in the given situation. Admittedly Camera belongs to the complainant. It has not been delivered back to the complainant by opposite party No. 1 either repaired or unrepaired. In these circumstances, direction deserves to be given to opposite party No. 1 to return the Camera of the complainant to him or in the alternative to pay its price i.e. Rs. 6400/- alongwith interest @ 9% p.a. from 21.8.06 till payment. Complainant is craving for compensation to the tune of Rs. 10,000/- for harassment, mental tension and financial loss. Camera is not in possession of the complainant till today. Had it been repaired or got repaired by opposite party No. 1 well in time, complainant could make use of it. If opposite party No. 1 had delivered it back as it is, he could get it repaired from some other source and make use of it. Act and conduct of opposite party No. 1 must have caused mental tension and harassment to the complainant for which he deserves some compensation which we assess as Rs. 2, 000/-. For this, we are fortified from the observations of Hon'ble State Commission of Madhya Pradesh in the case of J. Radhakrishnan Vs. A Basheera & Another 2001(2) CLT 225 wherein it has been held that award of compensation always involves some sort of speculation and it is very difficult to quantify the amount of compensation on a rationale basis.<br /> 18. No other point was urged before us at the time of Arguments.<br /> 19. In the premises written above, complaint is accepted against opposite party No. 1 with cost of Rs. 1,000/-. It stands dismissed qua opposite party No. 2. Opposite party No. 1 is directed to do as under :<br /> i) Return Camera of the complainant particulars of which have been given in the Retail Invoice, copy of which is Ex. C-1 or in the alternative to pay its price i.e. Rs. 6400/- to the complainant alongwith interest @ 9% P.A. from 21.8.06 till payment.<br /> ii) Pay Rs. 2,000/- to the complainant as compensation under Section 14 (1)(d) of the act.<br /> Compliance of this order be made within 30 days from the date of receipt of its copy failing which the amount of compensation under section 14(1)(d) would carry interest @9% P.A. till realisation.<br /> Copy of this order be sent to the parties concerned free of cost and file be consigned to record room. <br /> Pronounced :<br /> 11-05-2007 (Lakhbir Singh )<br /> President<br /> <br /> (Hira Lal Kumar )<br /> Member<br /> <br /> (Dr. Phulinder Preet)<br /> Member<br /> <br />