Punjab

StateCommission

FA/12/941

Videocon Industries Ltd. - Complainant(s)

Versus

Suraj Parkash Bhalla - Opp.Party(s)

Gurmeet Singh Saini

24 Feb 2015

ORDER

2^nd Additional Bench

 

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

 

First Appeal No. 941 of 2012

                                                           

                                    Date of institution: 16.7.2012    

                             Date of Decision:  24.2.2015

 

1. Videocon Industries Limited, SCO 94, Urban Estate, Phase-1, Dugri, Near M.G.M. School, Ludhiana through its authorized signatory Mr. Pavitar Singh S/o Bhajan Singh.
2. Videocon Industries Limited, Central Service Operation, 15 KM Stone, Aurangabad-Paithan Road, Village Chitegaon, Tal Paithan, District Aurangabad.

…..Appellants/OP Nos. 2 & 3

                                      Versus

1. Suraj Parkash Bhalla Son of Shri Pyare Lal, resident of Inside Amritsari Gate, Bhalla Flour Mills, Ferozepur City.

…..Respondent No.1/Complainant

2. Lucky Radio’s & Sewing Machines, Authorized Retail & Distributors, 70-B, Sadar Bazar No. 4, Ferozepur Cantt.

…..Respondent No.2/OP No.1

 

First Appeal against the order dated 4.4.2012 passed by the District Consumer Disputes Redressal Forum, Ferozepur.

Quorum:-

 

              Shri Gurcharan Singh Saran, Presiding Judicial Member

              Shri Jasbir Singh Gill, Member

    Shri Harcharan Singh Guram, Member

 

Present:-

 

          For the appellants            :         None.

          For respondent No.1        :         None.

          For respondent No.2        :         None.

 

 

Gurcharan Singh Saran, Presiding Judicial Member

ORDER

The appellants/opposite parties No.2&3(hereinafter referred as “OP Nos.2&3”) have filed the present appeal against the order dated 4.4.2012 passed by the District Consumer Disputes Redressal Forum, Ferozepur(hereinafter referred as “the District Forum”) in consumer complaint No.730 dated 26.11.2011 vide which the complaint filed by respondent No.1/complainant(hereinafter referred as ‘the complainant’) was allowed with a direction to OP Nos. 2 & 3 to refund a sum of Rs. 7,000/- received in excess from the complainant and to deliver LCD Plasma 32” (81 cm) TV. In case such model is not available then the other 32” (81 cm) of the same configuration be delivered to the complainant. A sum of Rs. 5,000/- was given as compensation and Rs. 2,000/- as litigation expenses. OP Nos. 2 & 3 were directed to comply with the order within a period of 30 days, failing which OP Nos. 2 & 3 will be liable to pay an extra amount of Rs. 30,000/- as cost of the said TV and the amount shall also carry interest @ 9% p.a. from the date of filing the complaint till its payment.

2.                The complaint was filed by the complainant under the Consumer Protection Act, 1986 (in short ‘the Act’) that OP No. 1 is authorised Dealer of OP Nos. 2 & 3 and on 26.11.2008, the complainant had purchased one colour TV Videocon 8600QS Model from Op No. 1 for a sum of Rs. 13,000/-. At that time Op No. 1 gave an offer “Maano Ya Na Manno Offer-2008”. In the said offer, it was specifically mentioned that participating in the said scheme and purchasing Videocon Product 34” Flat TV Model No. 8600QS for a sum of Rs. 12,990/- and on paying a sum of Rs. 7,000/- against rendering services from Videocon to get one Plasma TV 32(81 cm) Entitlement Certificate, Videocon will give one Plasma 32TV (81cm) after completion of 2 years 11 months from the date of purchase of 34” Flat TV. As per the offer of the Company/ opposite party, the complainant paid a sum of Rs. 13,000/- for the purchase of said TV + Rs. 7,000/- for the said offer and certificate Serial No. 169872 was issued by OP No. 1. After completion of the term of the said offer, the complainant approached Op No. 1 and demanded her claim/offer i.e. one Plasma TV 32”(81 cm), which was to be given by OP No. 3 to the complainant and Op No. 1 told that he will take the matter with OP No. 3. Complainant again visited Op No. 1 but OP No. 1 flatly refused to give the said TV to the complainant and asked to visit the Branch Office of Videocon Co. i.e. SCO No. 94, Urban Estate, Phase 1, Dugri, Near M.G.M. School, Ludhiana. The complainant visited the office of Op No. 2 and OP No. 2 told that the TV which was to be given by the Company to the complainant was not made and sold by the Company and assured the complainant that he will be given new LCD TV in place of Plasma TV and that he will have to deposit a sum of Rs. 7,000/- more in the shape of all local Taxes as the prices of the LCD Model No. 3204-FD is about Rs. 30,000/-. As per the instructions of OP No. 2, the complainant deposited a sum of Rs. 7,000/- with Videocon Industries vide draft No. 764300 dated 14.9.2011 and OP No. 2 issued a certificate to the complainant according to which the delivery was to be effected within a period of 30 days but it was not done by Op Nos. 2 & 3. The complainant many a times approached to the Ops but the Ops flatly refused to deliver the said TV to the complainant. The OP fraudulently charged Rs. 7,000/- at the time of purchasing Videocon Model 8600QS and Rs. 7,000/- for the second time and also failed to deliver the TV, which amounts to deficiency in services on the part of the Ops. The complaint has been filed with a direction to OPs to pay Rs. 30,000/- for the said offer i.e. cost of the LCD TV Model No. 3204-FD alonwith interest and also to pay Rs. 60,000/- as compensation to the complainant.

3.                The complaint was contested by the Ops. OP No. 1 in its written reply admitted that the complainant had purchased one TV Model 8600QS and the scheme “Maano Ya Na Maano Offer-2008” was also launched by Op Nos. 2 & 3. Whereas Op No. 1 had left the Distributorship of Op Nos. 2 & 3 and OP Nos. 2 & 3 were liable to give the offer item as per the terms and conditions of the Company. It was admitted that the complainant visited the shop of OP No. 1 and complainant was asked to directly approach Op Nos. 2 & 3. Other averments were denied. It was submitted that the complaint was without merit against Op No. 1 because the offer was to be complied with by Op Nos. 2 & 3.

4.                Op Nos. 2 & 3 in their written reply took the preliminary objections that these Ops have been unnecessarily dragged in the present litigation. It is clear from the allegations in the complaint that these Ops were not guilty of any deficiency in services. The complaint was false, frivolous and vexatious, liable to be dismissed under Section 26 of the Act with special costs; no cause of action had arisen to the complainant to file this complaint and that the Hon’ble Forum had no jurisdiction to entertain the present complaint because it was mentioned in the Entitlement Certificate that all matters pertaining to this offer shall be subject to the jurisdiction of Aurangabad Court only. On merits, it was admitted that the complainant purchased 34” Flat TV for a sum of Rs. 13,000/-. However, it was denied that he deposited Rs. 7,000/- for the said offer. It was denied that after the expiry of said offer, the complainant approached to OP No. 1 and demanded the offer of the scheme. It was denied that the complainant visited the office of OP No. 2 and OP No. 2 told the complainant that TV, which was to be given by the Company to the complainant was not made and assured the complainant that he will be given new LCD TV. In fact the complainant has concocted the story just to make out a case. It was also denied that he deposited a sum of Rs. 7,000/- in the shape of all local taxes in the shape of said offer. It was denied that after that the complainant visited the office of the Op several times but they denied to supply the LCD as agreed. The complaint was without merit and it be dismissed.

5.                The parties were allowed by the learned District Forum to lead their evidence.

6.                In support of his allegations, the complainant had tendered into evidence his affidavit Ex. C-1, Bill dt. 26.11.2008 of Lucky Radio’s Ex. C-2, Videocon Application No. 169872 Ex. C-3, Plasma 32(81 cm) Entitlement Certificate Ex. C-4, copy of draft dt. 14.9.2011 Ex. C-5, Offer entitlement certificate of Videocon Ex. C-6.

On the other hand, opposite party Nos. 2 & 3 had tendered into evidence affidavit of Ajminder Singh Saini, Ex. R-1.

7.                After going through the allegations in the complaint, written replies filed by the OPs, evidence and documents brought on the record, the learned District Forum accepted the complaint as stated above.

8.                None was present on behalf of the parties. However, lateron written arguments were submitted by the counsel for respondent No. 1 on 22.2.2015 and we have gone through the written arguments, grounds of appeal, evidence and documents on the record.

9.                It has been contended by the counsel for the appellants that the learned District Forum did not consider the fact that when respondent No. 1 had deposited amount of Rs. 7,000/-. It was deposited on 14.9.2011 and not on the date when 34” flat TV model 8600QS  was purchased by the complainant for a sum of Rs. 12,990/-. The District Forum also did not consider that it did not have any jurisdiction to entertain the complaint because it was subject to jurisdiction of Aurangabad Court only according to the terms and condition at serial No. 13  of Plasma 32” (81 cm) Entitlement Certificate. Accordingly, the order so passed by the learned District Forum is liable to be set-aside.

10.              The complainant had purchased Videocon TV model 8600QS on 26.11.2008 vide receipt Ex. C-2. Ex. C-3 is the Videocon application for participating in “Maano Ya Na Manno Offer-2008”. Alongwith the application, the Dealer had signed it for receiving a sum of Rs. 7,000/-. It was deposited on 26.11.2008. According to the term of this application, in case the customer deposit a sum of Rs. 7,000/- then under that scheme he will get one Plasma TV 32” (81 cm) Entitlement Certificate and Entitlement Certificate was given in the name of the complainant, which is Ex. C-4. Then as per the allegations of the complainant, another sum of Rs. 7,000/- was got deposited from the complainant by OP No. 2. Copy of the draft is Ex. C-5 and its receipt is Ex. C-6. Whereas on the other hand, apart from the affidavit of Mr. Ajminder Singh Saini, Authorised Signatory of the Ops, no other document has been placed on the record. Against the application and Entitlement Certificate Ex. C-3 and Ex. C-4 vide which the Dealer at that time had received a sum of Rs. 7,000/-, no contrary evidence has been placed on the record. Instead of admitting the claim of the complainant on the basis of application Ex. C-3 and entitlement certificate Ex. C-4, Ops demanded another amount of Rs. 7,000/-, which was deposited on 14.9.2011 and now the Ops have taken the plea that the amount of Rs. 7,000/- was deposited on 14.9.2011. However, as stated above, there is no rebuttal to the evidence Ex. C-3 vide which the Dealer of Ops had received a sum of Rs. 7,000/- from the complainant. Therefore, we do not subscribe to the plea taken by the Ops that a sum of Rs. 7,000/- was not deposited on 26.11.2008 when Videocon 34” Flat TV (83 cm) was purchased by the complainant.

11.              Another point is that according to terms printed on the back of the Entitlement Certificate, there is Condition No. 13 in which all issues / matters pertaining to this offer shall be subject to jurisdiction of Aurangabad Court only. However, under Section 11 of the CP Act, the jurisdiction of the Court has been referred as under:-

“11.   Jurisdiction of the District Forum.—(1) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed ''does not exceed rupees twenty lakhs. 

(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,—

1. the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or carries on business or has a branch office or personally works for gain, or
2. any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or
3. the cause of action, wholly or in part, arises.” 

12.              It was also held by the Hon’ble Supreme Court in case “C.C. Chambers Co-op Hsg. Society Limited Vs D.C. Bank Ltd.”, 2004 AIR (SC)184 observed in Para-7(relevant portion) as follows:-

            “The Fora made available under the Act are in addition to, and not in            derogation of the provisions of any other law for the time being in force   and the jurisdiction of the conventional Courts over such matters as        are now cognizable under the Act has not been taken away.

13.              In view of the judgment, the jurisdiction of any Court cannot be taken away by any person by writing the condition of their own. The jurisdiction of the Court is to be decided according to the Act. Since the TV was purchased at Ferozepur and offer to give 32” (81 cm) Plasma TV was offered at Ferozepur and sum of Rs. 7,000/- was also deposited at Ferozepur, therefore, District Forum, Ferozepur had the jurisdiction to entertain this complaint.

14.              No other point was agitated.

15.              In the relief clause apart from the direction to deliver the TV, refund of Rs. 7,000/- compensation and litigation expenses and interest and other penalty has been imposed that in case order is not complied within 30 days OP No. 2 and 3 shall pay an extra amount of Rs. 30,000/-, which is highly excessive and is ordered to be deleted whereas other part of the order will remain as it is.

16.              We are of the opinion that the findings so recorded by the District Forum are correct and we affirm the same except the modification indicated above, without any order as to costs.

17.              The appellants had deposited an amount of Rs. 25,000/- with this Commission at the time of filing the appeal. Out of this amount of Rs. 25,000/-, Rs. 14,000/- with interest accrued thereon, if any, be remitted by the registry to respondent No. 1 by way of a crossed cheque/demand draft after the expiry of 45 days, subject to stay, if any, by the higher Fora/Court.

18.              Remaining amount shall be refunded to appellant No. 1 on filing the application that he had complied with the order of the District Forum regarding delivery of the TV.

19.              The arguments in this appeal were heard on 20.2.2015 and the order was reserved. Now the order be communicated to the parties as per rules.

20.              The appeal could not be decided within the statutory period due to heavy pendency of Court cases.

 

 (Gurcharan Singh Saran)

Presiding Judicial Member

 

                                                                            (Jasbir Singh Gill)

                                                                                                    Member

 

February 24, 2015.                                                (Harcharan Singh Guram)

as                                                                                                Member