Orissa

Cuttak

CC/106/2017

Dhanajay Sahoo - Complainant(s)

Versus

Swastik Enterprises - Opp.Party(s)

R K Pattanaik

25 Jul 2018

ORDER

IN THE COURT OF THE DIST. CONSUMER DISPUTES REDRESSAL FORUM,CUTTACK.

                                                                                    C.C No.106/2017

Sri Dhananjay Sahoo,

S/o: Ramesh Chandra Sahoo,

           Khan Nagar,Nuasahi,Cuttack.                                                                        … Complainant.

 

                Vrs.

 

1.        M/s. Swastik Electronics,

Authorised Dealer of Toshiba India Pvt. Ltd.,

At/PO:College Square,Cuttack-753003.

 

2.        M/s. Toshiba India Pvt. Ltd.,

Represented through its Chairman –cum-Managing Director,

Corporate Office:Gurgaon,Gurgaon Office,

3^rd Floor,Building No.10,Tower-B,

DLF Cyber City,Phase-2,

Gurgaon-12022,Haryana,India.

 

3.         Ensure Support Services (India) Ltd.,

Authorised Service Centre of Toshiba India Pvt. Ltd.,

Saheed Nagar,Plot No.A/127,Bhubaneswar,

Dist:Khurda,PIN-751001.                                                                     … Opp. Parties.

 

 

Present:               Sri Dhruba Charan Barik,LL.B. President.

Smt. Sarmistha Nath, Member (W).

 

Date of filing:   01.09.2017

Date of Order:  25.07.2018

 

For the complainant:       Sri R.K.Pattnaik,Adv. & Associates.         

For the  O.Ps 1 & 3     :       None.

For the O.P No.2 :              Mr. R.Pati ,Adv. & Associates.           

 

 

Sri Dhruba Charan Barik,President.

The complainant has filed this consumer complaint against the O.Ps alleging therein deficiency in service and unfair trade practice on their part and seeking appropriate reliefs against them in terms of his prayer in the consumer complaint.

1. Factual aspect of the case of the complainant briefly stated is that on 28.7.14 the complainant  had purchased a Toshiba LED T.V from O.P.1 on payment of consideration of Rs.34,500/-.  The said Toshiba LED TV was having screen size of 39” and bearing Sl No.D43X15H01092C1.  Annexure-1 is the photo copy of the retail invoice No.985 dt.28.7.14 along with money receipt issued by O.P.1.  There was also warranty of one year from the date of purchase of the said T.V. in respect of any mechanical defect arising during the said period.  Annexure-2 is the photocopy of the said warranty card containing terms and conditions mentioned therein filed by the complainant in this case.

After two years of continuous use and enjoymentsome mechanical defects developed in the T.V on 18.3.17.The display screen suddenly went dark and the picture was not visible.The picture tube also went blank.Thereafter the complainant lodged a complaint with the O.P vide complaint No. TIPLSR310019042.A technical person was also deputed by the O.Ps to do the needful on 22.3.17.Upon examination of the defective T.V, the said technical person opined that the panel of the T.V set was faulty and needed replacement.However it could not be replaced due to non-availability of the said spare part with the O.Ps even after a long period.

However after first repair, the said T.V set started functioning for about 2 to 3 days but the same defect was repeated.It was intimated to the O.Ps who remained silent on the matter.Then the complainant had specifically written to O.Ps 2 & 3 to do the needful.The latter assured the complainant vide letter dt.3.5.17 that effective step would be taken to remove the defects.Annexure-3 series are the complaints made by the complainant on 29.4.17 and 3.5.17.He had also sent representation to the O.Ps to this effect and the latter did not act upon it.Subsequently he requested the O.Ps to replace the said defective T.V within 7 days and no action was taken by the O.Ps.He has also intimated O.P.2 through E.Mail and even thereafter nothing was done by him.

It is specifically stated that because of such continuous mechanical defect in the T.V set, it was found to be an inherent manufacturing defect which could not be rectified at any cost.It has caused serious mental agony and harassment to the complainant.Having no other alternative, the complainant was constrained to file the consumer complaint before this Forum seeking appropriate remedies.

It is therefore prayed that the O.Ps may be directed to replace the defective T.V set by a new defect free one of the same brand or in the alternative to refund the cost of the said T.V amounting to Rs.34,500/- together with interest @ 9% per annum from the date of purchase till the date of payment.It is also prayed that the O.Ps may be directed to pay compensation of Rs.25,000/- as well as cost of litigation of Rs.10,000/- to him together with any other relief as deemed fit and proper in the interest of justice.

2. Both the O.Ps 1 & 3 were set exparte.  It is only O.P.2 who is the manufacturing company appeared in the case and contested by filing written version.  At the outset it is revealed from the written version of O.P.2 that the case is not maintainable both in facts and law.  It is also bad for non-joinder of necessary parties.  The complainant has not approached this Forum in clean hands.  He is guilty of suppression of material fact before this Forum.  It is also stated that repeated attempts have been taken by the O.P.2 to refund the cost of the T.V to the complainant in view of terms and conditions as contained in the warranty card but the latter did not accept the same.  According to O.P No.2 he is still ready and willing to refund a sum of Rs.21,531/- to the complainant after deducting the depreciation amount @ 10% per annum as well as Rs.4,103.52 collected from the complainant towards VAT but the latter, for the reasons best known to him, did not concede to this proposal of the O.P.2.  In that view of the matter it is stated that O.P.2 is no way found deficient in rendering service to the complainant nor has even followed unfair trade practice in any manner.  As such the other reliefs claimed by the complainant are not sustainable.  Accordingly it is prayed that the complaint being devoid of merit may be dismissed in limini.
3. One witness namely Nilesh Sharma has been examined on behalf of O.P.2 in this case.  He is an employee under O.P.2 and has been duly authorized by the resolution dt.25.1.16 passed by the Board of Directors of the Company of O.P.2 to appear, conduct and defend this case on behalf of O.P.2.  He has also filed a number of annexures such as the photo copy of the resolution dt.25.1.16 Annexure-A, photocopy of the invoice vide Annexure-B, photo copy of the terms and conditions of the warranty vide Annexure-C.  Annexure-D & E are respectively the photo copies of the screen shots of O.P2’s Website against the complaint made by the complainant vide S.R.NoTIPLSR3I0019042 and S.R  no.TIPLSR6I0018570.
4. We have gone through the case record and heard the learned counsel for the complainant as well as for the O.P.2 at length.  We have also gone through the Annexures submitted by both the parties in support of their case respectively.
5. Upon examination of the pleadings of both the parties and the copies of annexure filed by them, the short questions that fall for consideration in this case are whether the defect in question is an inherent manufacturing defect and whether the terms and conditions contained in the warranty card are binding on the complainant.
6. Law is well settled that all defects, technical or mechanical, are not manufacturing defects.  It is therefore necessary that an expert opinion is essential to prove that a particular defect is an inherent manufacturing defect which is grossly wanting in this case.  In this connection reference may be made to a decision of the Hon’ble NCDRC reported in (2017) 3 CPR-35(N.C) (Mahendra Kumar Vrs. Hero Honda Motors Ltd. and another).  It has been held by the Hon’ble National Commission that there must be an expert opinion to prove that a particular defect is a manufacturing defect.

In view of the above it cannot be held that the defect pointed out by the complainant in his consumer complaint is of the nature of manufacturing defect.

7. So far as the terms and conditions contained in the warranty card vide Annexure-C are concerned, it is fairly argued by the learned counsel for the O.P.2 that they are binding on the complainant under all circumstances.  This fact is not seriously disputed by the learned counsel for the complainant.  Rather in para-7 of his complaint, it is clearly stated that the complainant wrote to the O.P.2 to rectify the above defect and to repair the T.V set within the terms and conditions of warranty.  It is therefore held that the complainant was fully aware of the terms and conditions contained in the warranty card.  The further submission of the learned counsel for the O.P.2 reveals that point no.18 & 19 of the said warranty card are worth considering in this context.  The provisions contained in point No.18 & 19 are extracted below.

Point No.18

“The depreciation rules of the company prevailing at that point of time will be applicable in case of spares not available during the warranty or post warranty period, due to any unforeseen circumstances beyond the control of the company.”

                Point No.19

“While the company would take adequate steps for availability of spares at all times, however in stray cases (as decided by the company/Authorized service personnel) of non-availability of spares, company would offer commercial solution to the purchaser as per the depreciation rules of the company prevailing at that point of time”.

At this stage it is important to leave a mention here that the concerned engineer deputed by O.P.2 while examining the defective T.V found that the picture tube had gone blank and it needed replacement.  But the said picture tube was not available with O.P.2 and it had to be imported from abroad.  No doubt it would be highly time consuming and expensive.  For that reason O.P.2 offered commercial solution  to the complainant for refund of the amount of the defective T.V after deductions of amount on depreciation ground  @ 10% per annum as  well as after deduction of the amount collected from the complainant i.e. Rs.4,103.52p towards VAT.  This commercial solution was offered in view of terms and conditions of warranty.  This fact is not materially disputed or demolished by the learned advocate for the complainant.  In that view of the matter it is held that, the complainant has violated the terms and conditions of the warranty card by refusing to accept the proposal of O.P.2.  He has also suppressed this material fact which has not been disclosed in the consumer complaint.  It is rightly submitted by the learned counsel for the O.P.2 that he has not approached this Forum in clean hands.  The only witness of O.P.2 has reiterated all the material facts in his statement which has not been assailed satisfactorily.  Law is also well settled that the dealers or authorized service centers are not liable for manufacturing defect in any manner.  Ultimately it is held that the complainant has failed to prove deficiency in service or unfair trade practice against O.P.2. 

At this stage it is pertinent to refer to the pleadings of O.P.2 wherein it is stated that he is still ready and willing to refund Rs.21,531/- to the complainant towards cost of the T.V after necessary deduction of depreciation charges and the amount of Rs.4,103.52p collected from him towards VAT.  On the basis of such admitted fact by O.P.2, we think interest of justice can be best served if O.P.2 is directed to comply with that part of his pleading.  The learned advocate for the O.P.2 did not raise objection to it.  Hence ordered;

                                                                                ORDER

In the peculiar facts and circumstances of the case, the consumer complaint is partly allowed.O.P.2 is directed to refund Rs.21,531/- to the complainant after deduction of depreciation charges @ 10% per annum as well as after deduction of Rs.4,103.52p collected from him towards VAT.Other reliefs prayed by the complainant are not sustainable.This order shall be given effect to within a period of 45 days from the date of receipt of copy of this order.

Typed to dictation, corrected and pronounced by the Hon’ble President in the Open Court on this the 25^th     day of July,2018 under the seal and signature of this Forum.

                                                                                                                                                  

    (   Sri D.C.Barik )

                                                                                                                         President.

                                                             

                                                                                                          (Smt. Sarmistha Nath)

                     Member(W)