Date of filing: 15.02.2017 Date of disposal: 07.09.2018
Complainant: Rajib Roy, S/o. Late Ratul Kr. Roy, resident of Sasti Goria, PO: Raniganj, District: Burdwan, PIN – 713 347.
- V E R S U S -
Opposite Party: 1. Sony India Pvt. Ltd., represented by its Director, having its office at A-31, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi – 110 044.
2. Neosa Electronics Pvt. Ltd., authorized Service Centre of Sony India Pvt. Ltd., represented by its Director, having its office at S. B. Gorai Road, beside Kazi Nazrul University & Sukanta Maidan, Asansol, PIN – 713 303.
Present:
Hon’ble President: Smt. Jayanti Maitra (Ray).
Hon’ble Member: Smt. Nivedita Ghosh.
Hon’ble Member: Dr. Tapan Kumar Tripathy.
Appeared for the Complainant: Ld. Advocate, Suvro Chakraborty.
Appeared for the Opposite Party No.1 &2: Ld. Advocate, Rajdeep Goswami.
J U D G E M E N T
The present claim application under Section 12 of the C. P. Act, 1986 filed by the complainant for deficiency in service and unfair trade practice.
The brief fact of the case is that the complainant purchased one LED TV (3D BRAVIA TV Set) bearing Model No. KDL 32 EX 720, serial No. 2420562 from Dutta Brothers, Nachan Road, Burdwan on 19.04.2011 vide Invoice No. 6405, manufactured by OP-1 with warranty for one year and at the same time the complainant purchased some equipments like Speaker, Home Theatre etc.
The complainant alleged that he was enjoying his TV since purchasing but from the 1st week of July 2016 the said TV set began to create some problems and for that he contact with OP-2 and lodged a complaint and OP-2 sent one engineer who inspected the said TV set and informed the complainant that an amount of Rs. 17,588=00 is required for replacing the said TV set and Rs. 6,000=00 is realize as advance and the complainant agreed with the proposal of OP-2.
The complainant further alleged that on 11.08.2016 one representative of OP-2 went to his home and at that time he paid Rs. 6,000=00 to him against the job sheet being No. 161911888 dated 11.08.2016 and thereafter the OP-2 assured that they will repair the TV set within three weeks and ultimately informed that due to shortage of spare parts they are unable to repair the said TV set and further asked the complainant to contact with their Kolkata office and accordingly the complainant made contact with the Kolkata office on 17.08.2016 when Moumita Ghosh as representative of Ops informed the complainant and further assured that they would give relief within few days, but ultimately the Ops did not take any steps either for repairing the said TV set or to solve the TV problem though the complainant sent several mail to the OP-1 with request to repair his TV set but the Ops only assured that they will solve the problem within a short period and thereafter on 10.09.2016 the OP-1 informed vide their mail that due to limited spare parts they are unable to repair the said TV set and further gave an offer of exchange on payment of Rs. 75% of the total consideration amount of a TV set of same nature and further offered 25% as relaxation.
The complainant alleged that in the year 2016 the consideration amount of new LED 3D TV was about Rs. 69,000=00. So it is not possible to pay Rs. 51,750=00 when as a consumer he purchased TV set by paying Rs. 57,900=00 before 5 years and for that again requested to Ops vide his mail dated 15.09.2016 for arranging to repair his TV with a assurance that he is ready to bear the cost of spare parts and service charge and thereafter on 22.09.2016 he again sent mail with the same request to the Ops but the Ops failed to give any service till the date of filing the complaint.
The complainant further alleged that being a bonafide consumer of the Ops, he is entitled to get relief but the Ops failed to give any service inspite of taking advance amount for repairing the TV set and at the same time tried to extract money by providing some illogical offer of exchange which is nothing but unfair trade practice and deficiency in service and due to such conduct of Ops he is suffering huge mental pain, agony and harassment and the Ops are liable to compensate the complainant.
The cause of action firstly arose on and from 11.08.2016 when OP-2 received advance amount and thereafter again on 10.09.2016 when the Ops intimated the offer of exchange.
The complainant prayed before the forum for direction to the Ops to repair the said TV set by holding them liable for deficiency in service and unfair trade practice and further directing to the Ops to pay a sum of Rs. 70,000=00 for mental pain, agony and harassment and further to pay a sum of Rs. 20,000=00 as litigation cost.
The Ops contested the present claim application by filing written version and denied the allegations as alleged by the complainant in claim application.
The specific case of Ops are is that the complainant had purchased a SONY television bearing Model KDL 32EX 720 vide Serial No. 2420562 on 19.04.2011 for a consideration of Rs. 57,900=00 and he enjoyed the said TV set for a prolonged period of 5 years and 4 months and on 09.08.2016 he firstly complained to the OP-2 i.e. qua certain lines appearing on the screen and further stated that as the warranty of the said TV set already expired so the complainant is liable to pay service charge and ultimately the complainant also accepted the proposal of the service engineer to repair the defect and further paid advance of Rs. 6,000=00 for repairing of TV set.
The OP-1 further stated that the service engineer was not able to rectify the issue of the TV set as necessary parts were not available in the market as the said TV set was old model but only for satisfaction of the customer offered the complainant that is exchange of TV set with any new BRAVIA model of the complainant’s choice by paying 75% of the new products, though the Ops had no liability to fulfill unwarranted demand of the complainant which was untenable in law and on merits and accordingly prayed before the court to dismiss the complaint as the claim of the complainant is unreasonable and further the complainant failed to prove against the Ops any deficiency in service or any negligence.
OP-2, i.e., the service centre of SONY India Pvt. Ltd. received summon sent by the complainant but never contested the present claim application by filing written version.
On considering the claim application as well as written version, the following issues settled by the present Forum.
Points for consideration:-
- Whether this claim application at all maintainable in its present form?
- Whether the complainant entitled to get any award as prayed for?
Both the issues are taken up together for consideation. To prove the allegation against the Ops, the complainant Rajiv Roy himself adduced evidence through affidavit before the Forum and to denied the allegation by the complainant against the Ops one Priyanka Chauhan, Authorized Signatory of OP-1 and also represented to OP-2 by Board resolution dated 07.02.2014 and also by authorization letter, adduced evidence on behalf of Ops along with some documents which are mentioned as Exhibit Nos. A, B, C & D.
Admittedly the complainant is a consumer under the Ops by purchasing a LED TV bearing Model KDL 32EX 720 vide Serial No. 2420562 for a consideration of Rs. 57,900=00 from OP-1- Dutta Brothers, Nachan Road, Burdwan on 19.04.2011 with warranty of one year and purchased some equipments for enjoying the said TV and it is also not disputed that the complainant enjoying the TV set since the date of purchasing till July 2016 and only from 1st week of July 2016 some trouble arises i.e. the screen of the said TV set was not working properly and thereafter the complainant lodged a complaint before the OP-2 for the said trouble and accordingly one engineer of the OP inspected the said TV set in the last week of July 2016 and informed the complainant that they could be able to repair the problem of said TV set as they had detected the problem against an amount of Rs. 17,588=00 and also informed that an amount of Rs. 6,000=00 would require as advance for spare parts.
It is also appeared that ultimately the OP failed to repair the TV set as per complaint of the complainant due to non-available of spare parts and then the Ops also asked the complainant for making contact with their Kolkata office vide their e-mail ID No. and the complainant also contact with the Kolkata office of the Ops when the said Kolkata office also assured the complainant that they would give relief but ultimately they also failed to repair the TV set instead of giving their assurance, on the other hand it appears that instead of solving the problem as per assurance, the Ops gave an offer of exchange on payment of 75% of the total consideration amount of a TV of same nature to the complainant with further offer of 25% relaxation, which compelled to the complainant to lodge the present claim application against the Ops.
Now points for consideration is whether claimant is at all entitled to get relief as per his claim as it appears that one of the most vital terms and condition of the said TV is that the warranty period which was already expired and when the complainant lodged the complaint, then it appears that in spite of expire the warranty period there is another contract executed between the parties i.e. when the Ops after inspection of the said TV set through an engineer informed the complainant that they could be able to repair the problem as they had detected the problem against an amount of Rs. 17,588=00 and out of which Rs. 6,000=00 as advance amount for repairing the said TV set and Ops also admit regarding the acceptance of Rs. 6,000=00 from the complainant as advance.
Thereafter Ops also disclose that they have failed to repair the said TV set due to non-available of spare parts and against the same they offered the complainant to purchase a new TV set of same nature on payment of 75% of the total consideration and further offered 25% as relaxation but due to economical condition, the complainant is not able to accept the said offer of the Ops on the ground that he had purchased the TV set on 19.04.2011 by paying Rs. 57,900=00 only 5 years before and for that he requested the Ops vide his mail dated on 15.09.2016 and again on 22.09.2016 for taking necessary steps to repair the said TV set with a further assurance that he is ready to bear the cost of spare parts as well as service charges.
It further appears that against the said request of the complainant the Ops without taking any further steps to repair the TV set but only express their inability by saying that due to shortage of spare parts they are unable to do so.
On considering the position of the Ops it is clear that when spare parts are not available then according to law they are not in a position to repair the same and the present forum has no right to direct the Ops to repair the TV set as per prayer of the complainant.
Ld. Advocate for the Ops also admits the prayer of the complainant through written argument when they straightway stated that they are unable to repair the TV due to spare parts and for that they have offered to exchange the TV set with any new Bravia Model of his own choice from Ops by paying only 75% of new product maximum retail price and accordingly they have a liability to fulfill such type of unwarranted demand of the complainant which is not at all tenable in law and on merits.
The ld. Advocate also mentioned some rulings along with case law i.e. Ravneet Singh Bagga Vs M/s. KLM Royal Dutch Airlines III (1999) CPJ 28 (SC) to show that as the intention of the Ops are not to harass the complainant by not repairing the TV so in this way deficiency of service against the Ops are not proved.
Ld. Advocate also cited Ramrameshwari Duri and others Vs Nirmola Devi and others (Civil Appeal Nos. 4912-4913 of 2011) along with the judgement passed by Hon’ble High Court of Bombay Shri A. G. Sawant Vs. Sri Sanjoy D. Berde to show that frivolous on vexatious complaint can be dismiss by the Forum.
It further appears that admittedly Ops received Rs. 6,000=00 from the complainant as advance out of total charges amount and the said amount is still lying in the custody of the Ops though the said TV set has not yet repaired and the Ops never try to return back the said advance to the complainant when they failed to repair the same. Under such circumstances it appears that when the Ops received the said amount of Rs. 6,000=00 then obviously a new agreement was executed in between the parties and according to law the complainant is entitled to get back the same from the Ops.
So on considering the present facts and circumstances it is clear that the complainant is able to prove that he is a bonafide consumer under the Ops and it is also proved that there is deficiency in service on the part of Ops because of non-returning the advance amo9nt of Rs. 6,000=00 when the TV set was not repaired inspite of giving assurance by the Ops, i.e., they will repair the said TV set within 3 (three) weeks after inspecting the same on 11.08.2016.
So the complainant is entitled to receive Rs. 6,000=00 along with Bank interest from the Ops since the date of assurance i.e. on 11.08.2016.
Now further points for consideration is whether the complainant is entitled to get any amount from the Ops for his mental pain, agony and harassment due to not repair the said TV set.
Regarding this it appears that when the complainant purchased the said TV set then it was in his mind that he could enjoy the said TV set at least for ten years but due to his ill luck it was damaged /creates disturbance after 5 years and could not able to repair for non-available of spare parts, so the complainant suffers tremendously as he could not avail the further offer of the Ops by purchasing new TV with relaxation of 25% out of total purchase amount for his financial condition.
Accordingly, he is also entitled to get Rs. 5,000=00 as mental pain and agony and also entitled to get Rs. 2,000=00 as litigation cost.
So the complainant is able to prove his demand and as such the present suit succeeds.
Hence, it is
O r d e r e d
that the present Consumer Complaint being No. 29/2017 be and the same is allowed on contest with cost against the Ops directing the Ops to refund the amount of Rs. 6,000=00 either jointly or severally as paid in advance for repairing of the T.V. set along with interest on the said amount @4% per annum from 11.08.2016 (the date of payment of the advance amount) till its realization to the complainant and the Ops are also directed to pay Rs. 5,000=00 as compensation and Rs. 2,000=00 as litigation cost either jointly or severally to the complainant, in default, the complainant is at liberty to put the entire award in execution as per provisions of law.
The above award be complied by the Ops within 45 days from the date of passing of this judgement.
Let plain copies of this order be supplied to the parties free of cost as per provisions of law.
Dictated & Corrected by me: (Jayanti Maitra (Ray)
President
(Nivedita Ghosh) DCDRF, Burdwan
President
DCDRF, Burdwan
(Tapan Kumar Tripathy) (Nivedita Ghosh)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
