Order No. 27 Dt. 29.06.2017
The fact in a nutshell is that the complainant being a senior citizen purchased a LG Television Set Model No. 32LF 20FR on 18.01.2010 @ Rs. 35500/- from Raj Electronics Malda who happens to be the dealer of LG Electronics Pvt. Ltd. The Raj Electronics i.e. O.P. No.4 after receiving money Rs.35500/- from the complainant issued a challan instead of Cash Memo for the same. After two to three months of such purchase the television set started to malfunctioning and the complainant informed the same to the seller and Service Centre for removal of the defects. The staff of LG Electronics recommended for replacement of the T.V. set and the warranty period was extended up to 25.07.2015 on payment of Rs.5736.72. The complainant further stated that the A.M.C paper of extension of warranty was lost from his custody. Thereafter, the respondent No. 3 took custody of the said television set on 25.03.2014 without issuance of any receipt and the same was not handed over to the complainant. The complainant could not get the service of the said television and suffer pecuniary loss and mental agony and for that reason due to unfair trade practice and deficiency in service the complainant claims refund of Rs.35500/- or replacement of the said television set, compensation for harassment assessed Rs.20000/-, cost of litigation and other reliefs.
The O.P. No.2 L.G. Electronics represented by its Branch Manager has contested the case by filing written version stated and contended inter alia that the case is false and vague having no cause of action and denied all the allegations raised by the complainant and the positive case of the O.P. No. 2 is that the complainant with some allegations of some malfunctioning handed over the T.V. set and received a standby set is which is still in the custody of the complainant and he is still enjoying the service of the standby television set in all purposes without any suffering regarding the T.V watching and there was no deficiency in service as the claim is frivolous and not acceptable.
O.P. Nos. 1,3 and 4 did not appear in this case and the case is heard ex parte against them.
On the above cases of the parties the following issues are framed:-
- Is the case is maintainable in its present form ?
- Whether the petitioner has any cause of action to file the case?
- Whether there is any deficiency in service on the part of the O.Ps?
- Whether the petitioner is entitled to get any relief as prayed for?
::DECISION WITH REASONS::
Issue Nos. 1,2, 3 & 4
All the issues are taken up together for the sake of convenience and brevity of discussion and to skip of reiteration.
The complainant claims that he could not get the desirable service of the T.V. set for his enjoyment in the retired life and the cash memo was not handed over to him at the time of purchase and in spite of repeated attempt the opposite party has failed to hand over him the said T.V. set in well functioning condition and the same still in the custody of the opposite party.
Here deficiency in service and the question of restrictive trade practice has to be decided in this case.
Record does not reflect anything regarding the non-maintainability of the case and the case is well maintainable in its present form and it is not time barred.
Here in this case the opposite party categorically mentioned in written version that a standby television set still lying in the custody of the petitioner in lieu of the original set which was handed over to the opposite party on 25.03.2014. The claimant never denied the said averment of the opposite party. After scanning the evidences of both sides it is revealed that the original T.V. set purchased by the complainant is now in serviceable condition and the opposite party is very much ready to return back the same to the complainant after getting return the standby set from the complainant.
So in our view, in the context of the present problem that the complainant has not completely deprived in getting service and enjoyment of the T.V. set and the question of restrictive trade practice does not arise merely on the ground that cash memo was not given at the time of purchase. The challan is very much to prove that the complainant after purchasing the T.V. set became the actual owner. However, it can also be stated that the complainant has made a choice of the particular T.V. set and to purchase the same he has spent Rs.35500/- from his purse and it is not the case of the O.P. that the standby set which was handed over to the complainant was the same T.V. set as desired by the complainant. So in that perspective we cannot ignore the claim of deficiency in service.
On the other hand, it is the prerogative of the complainant to get return of the original set which he purchased after handing over the standby set to the O.P.
So the case in our view could succeed partly.
Proper fee paid.
Hence, ordered
that Malda D.F.C. Case No. 47/2015 be and the same is hereby allowed on contest in part with cost against O.P. No.2 and ex parte against rest of the O.Ps in accordance with the provisions of the Sec. 12 of the C.P. Act, 1986.
The O.P. No. 2 is directed to pay Rs. 10000/- to the complainant for deficiency in service and harassment subject to condition precedent is that the claimant will be satisfied with the compensation amount without parting away from the standby handset he is now using and without getting back the original T.V. he purchased within 60 days from the date of this order failing which the amount will carry interest @ 6% p.a. till its realization and the petitioner be at liberty to put the decree in execution.
Or, the complainant /petitioner will be at liberty to get back his original T.V. Set in full functioning condition after returning his standby set to the O.P. from whom he received the standby set and if the complainant wants to opt this alternation remedy, the O.P. shall handover the original T.V. set within a month in functional condition after receiving the standby T.V. set from the complainant.
Let a copy of this order be given to the petitioner and O.P. No.2 free of cost and to rest of the O.Ps by Registered Post with A.D.
