BY - SRI ASISH DEB, PRESIDENT
1. The brief factual matrix leading to the complainant’s case is that the complainant is the permanent inhabitant of the above noted address and a poor bonafide consumer of service under the O.Ps. The O.P. No.1 & O.P. NO.2 are the Br. Manager of the C.E.TECH COMPUTER SERVISING CENTRE & SATISFACTION ELECTRONICS PVT. LTD. O-P3 is the Director of SAMSUNG INIDA ELECTRONICS PVT. LTD of the above address. The complainant purchased a Samsung LED T.V. 40H5500 of Rs. 61900 from Satisfaction electronics Pvt. Ltd on 17.07.2014. After few days it was found that the said T.V set was not functioning properly. On 21.07.2014 only after 7 days it was found that the said T.V has been stopped. The complainant wrote a complain no of which is 417794. After the complain C.E.TECH computers servicing centre sent a technician for repairing the said T.V but he did not solve the problem. After the complainant wrote several times for the replacement or repair the said T.V but the company did not hear request after complainant. The dates on requesting are as follow on 09.10.2014 complain No. 4182775909, On 06.03.2015 Complain No. 4190566450, On 09.03.2015 Complain No. 4190665171, On 24.07.2015 Complain No. , On 15.08.2015, Complain No. 4198354613 & 4198645128. After lodging complain the company said that the display has to be changed, and the cost of display would be Rs. 20000. The company made absurd demand. Despite several requests the Samsung India Electronics Pvt. Ltd did not replace the said T.V. till now. After the complainant wrote a Complain to Consumer Affair & Fair Business Practices of Purba Medinipur regional office At - Abasbari, P.O.- Tamluk. Complainant is hereby preferring the case before consumer forum with prayer for following reliefs. To Pay a sum of Rs. 61900(Sixty one thousand nine hundred only)+ interest upto date from the date 21.07.2014 towards the compensation+ litigation cost Rs. 10000/- total RS. 71900 (Seventy one thousand nine hundred only).
2. Upon notice written versions haven filed filed by the ops-1 & 3 with a view to contesting the case ;whereas the op-2 did not contest the case so, the case has run ex-parte against it.
3. The sum and summerisation of written versions submitted by the answering Opposite Party No.3 are that the complaint is not maintainable either in law or in facts. The instant complaint is baseless, devoid of merits, harassive, frivolous, speculative. There is no such specific cause of action in the instant case and no specific allegation has been made out by the Complainant against the answering OP and as such the present complaint filed by the Complainant is liable to be dismissed with cost. The complaint of the Complainant alleges manufacturing defect in the product in the question. It is pertinent to mention here that alleged manufacturing defect cannot be determined on the simpliciter oral submissions of the complainant and needs a proper analysis test report to confirm the same. The complainant has miserably failed to prove the alleged manufacturing/technical fault neither placed on record any analysis test report for the perusal of the Ld. Forum. It is pertinent to mention here that the Hon’ble National Commission in the case of Tata Motors vs. Rajesh Tyagi and HIM Motors Show Room ii i(2014) CPJ132(NC) has held: “In the case of ‘Classic Automobiles Vs Lila Nand Mishra & Anr.’ (I (2010) CPJ 235 (NC), it has been stated that the onus to prove the manufacturing defect was on the Complainant an further, it was necessary to obtain expert opinion before saying that there was manufacturing defect.” It is submitted that in the absence of any technical report on record, the present complaint deserved dismissal on this ground alone. The Complainant has by way of relief sought compensation without in any manner demonstrating that any loss has in fact been occasioned and in what manner computation of compensation claimed has been made. The complaint of the Complainant is thus a motivated attempt to obtain unfair advantage and is accordingly liable to be dismissed on this ground alone. It has been held by the Hon’ble Supreme Court in Ghaziabad Development Authority Vs. Union of India, (2000) 6SCC 113, that no damages are payable for mental agony in cases of breach of ordinary commercial contracts. Further, in Bihar State Housing Board Vs. Prio Ranjan Roy, (1997) 6 SCC 487, it has been held by the Hon’ble supreme Court that where damages are awarded there must be assessment thereof. It was also held that the order awarding damages must contain an indication of the basis upon which the amount awarded is arrived at. It is also worthwhile mentioning here that present complaint is filed without any expert opinion which will prove that the product in dispute is working properly and merely by oral assertions of the Complainant it cannot be ascertained that the product in dispute is not working properly. That the product in question is required to be checked by the proper analysis/test by the appropriate Laboratory:- as per the section 13(1)(c) of the Consumer Protection Act. It is further submitted that the Hon’ble national Commission in the case of Shive parsad Paper Industries Vs. Senior Machinery Company, 2006 (1) CLT 527 (NC) has held that “an Equipment or machinery cannot be ordered to be replaced if can be repaired”. Further, in M.J. Abraham Vs Angel Agencies & Others, III (2000) CPJ 544 and Videocon International Ltd. Vs. K Vijyajan & others, 1999 (I) CPR 20 it has been held by the Hon’ble National Commission that for replacement of product the defect must be manufacturing and for proving manufacturing defects Expert Report is essential. The complainant has sought the relief of refund of the purchase price for the product in dispute. It is submitted that refund/replacement is permissible neither in law nor under the terms of warranty policy. That the Hon’ble Supreme Court in Stereocraft Vs Monotype India ltd. New Delhi (2000), NCJ (SC) (59) has clearly held that when terms of warranty does not cover refund during or after the lapse of warranty period. The consumer can only claim repairing of the product if permissible under the terms of service contract or warranty. It is well established, including by the Hon’ble Supreme Court of India in Maruti Udyog Limited Vs. Susheel Kumar Gabgotra, (2006) 4 SCC 644 that where a warranty condition is specifically stated, a contrary implied warranty cannot be imputed. Further, in Bharat Knitting Vs/S. D.H.L. Worldwide, (1996) 4 SCC 704, the Hon’ble Supreme Court had held that in case is specific term in the contract, the parties will be bound by the terms of contract. According to op-3 On 17.07.2014, the complainant purchased a Samsung LED TV being Model No. 40H5500 (hereinafter “LED TV”) manufactured by the answering Op3 and purchased from the Opposite party No.2 .The said LED TV comes with a warranty for 12 months for the entire product only save and except the aesthetic parts, which are not covered under the warranty. The warranty does not cover the cost of installation and de-installation of wall mounted units. The warranty covers only the defects in product arising out of manufacturing or faulty workmanship. The warranty of the product means that in case of any problem with the said LED TV, the said LED TV will be repaired or its parts will be replaced as per warranty policy and the warranty of the said LED TV is subject to conditions mentioned in the warranty policy that comes with the product manual. In the following situations the said LED TV is considered to be out of warranty coverage:
- Mishandling/misuse;
- Third party repair attempts;
- Improper voltage;
- Normal wear and tear;
- Physical damage and/or electrical damage caused by physical impact. The warranty shall be null and void in cases, like:
vi. The product purchased is not used as per the rated power conditions or instructions mentioned in the instruction manual.
Vii Site (premises where the product is used/Kept) conditions that do not conform to the recommended operations of the product.
Viii Defects caused due to exposure to moisture/dampness/external thermal or environmental conditions or rapid changes in such conditions/corrosion/oxidations/spillage of liquid/influence of chemical substance. The copy of the warranty card is annexed hereto and marked as Annexure-“A”.
The op-3 states that the complainant alleges that within a few days of its purchase the said LED TV was not working properly and on 21.07.2014 the said LED TV stopped functioning. However, no complaint was lodged with the answering OP in respect of the said LED TV. It is pertinent to state here that once complaint is lodged with the answering OP, a docket no. is provided against registration of such complaint. However, from the records it transpires that no such complaint had been made in respect of the said LED TV as indicated by the Complainant. Complainant had thereafter lodged service requests in between October 2014 to March 2015 but the said complaints were subsequently rescheduled and thereafter cancelled by the Complainant himself and for the said reason the answering Op was not in a position to assess the exact dispute pertaining the said LED TV. Complainant thereafter raised the purported complaint on 24.07.2015 alleging that the said LED TV was having functional issue. The Service Engineer visited the Complainant’s residence and upon inspection of the said LED TV no defects was found and that the said LED TV was functioning properly. Subsequently on 15.08.2015 another complaint was lodged by the Complainant. The Service Engineer upon visiting the Complainant’s residence inspected the said LED TV and upon inspection it transpired that the Printed Circuit Board (hereinafter “PCB”) was damaged due to some external impact like exposure to dirt and moisture, exposure to high voltage power overloads during lighting strikes or a power surge and needed necessary repair. It is pertinent to note that the warranty period of the said LED TV had already expired and that any repair and/or replacement of spare apart were subject to payment of necessary charges. Accordingly, the Service Engineer gave an estimate for the repaid and/or replacement of the said PCB, but the Complainant did not approve of such estimate and instead demanded for total refund of the purchase price. Complainant was categorically informed by the Service Engineer that the said Led TV was not being used as per specification and as result it suffered from a PCB failure. The Complainant was informed of the same but the Complainant failed to appreciate the fact that the said LED TV did not have any inherent manufacturing defect. Complainant was specifically informed that the warranty is only for the defect arising out of manufacturing or faulty workmanship and that the warranty is subject to some conditions. If the said LED TV gets damaged due to external factors, the warranty coverage becomes void. The complainant failed to understand that the damage caused to the said LED TV was due to negligence on part of the Complainant himself and any repair was subject to payment of cost inasmuch as the warranty coverage became void. The answering Op-3 though Op1 was along ready to resolve the issue and a such there has been never any kind of deficiency of service on the part of the answering Op1 in any manager whatsoever. The Complainant failed to appreciate the situation and was making untoward claim, which is not acceptable in any situaito0n. The complainant’s insistence for total compensation of Rs. 71900/- for the said LED TV is not at all suitable in the present situation. Answering OP state that the answering Op was all along ready to repair the said LED TV subject to payment of cost but the Complainant declined to accept the service. Answering Op states that there has not been any deficiency of service and/or unfair trade practice on the part of answering OP. Hence, it is prayed that this commission may graciously be pleased to dismiss the Complaint and pass such other order(s) and/or direction(s) as the commission may deem fit and proper.
3A. OP-1 has stated in his written version inter alia that complainant has filed false complaint. His version is almost in unison with that of op-3. He only added in para 15(f) of his w v that he visited the house of the petitioner and replaced main PCB and advised to replace the main penal.
4.
Points for determination are:
- Is the case maintainable in its present form and in law?
- Is the complainant entitled to the relief(s) as sought for?
5 Decision with reasons
6. Both the points, being inter related to each other, are taken up together for discussion for sake of brevity and convenience.
7. Heard arguments of the Learned Counsel for both parties. We gave our thoughtful consideration to the arguments from both sides. We have carefully perused and assessed the affidavit of the complainant, written version filed by ops 1 & 3, evidence of both parties ie,of PW-1 Shyamal Ranan, questionnaire thereof by ops 1 & 3 ;OPW-1 by OP-3 Anup Kr Mathur ,opw-2 by OP-1 Ananda Shankar Pradhan , questionnaire thereof by the Complainant and documents and Rulings and principles of law as referred.
8. Having regards had to the facts and circumstances of the case and other materials on record, it appears that the instant case is maintainable in its present form and in law.
9. Now, coming to a total appraisal of evidence on record , it is evident that indisputably the complainant purchased a Samsung LED T.V. 40H5500 of Rs. 61,900/- from Satisfaction electronics Pvt. Ltd on 17.07.2014. The crux of dispute is that the complainant failed to lodge any complaint within warranty period with any manufacturing defect in the product. In this issue it is the averment of the complainant is that On 21.07.2014 only after 7 days it was found that the said T.V has been stopped. The complainant wrote a complain no of which is 417794. After the complain C.E.TECH computers servicing centre sent a technician for repairing the said T.V but he did not solve the problem. After the complainant wrote several times for the replacement or repair the said T.V but the company did not hear the request after complaint. The dates of requesting are as follow on 09.10.2014 complain No. 4182775909, On 06.03.2015 Complain No. 4190566450, On 09.03.2015 Complain No. 4190665171, On 24.07.2015 Complain No. , On 15.08.2015, Complain No. 4198354613 & 4198645128. On specific reply to this context op-3 answers that no complaint was lodged with the answering OP in respect of the said LED TV. It is pertinent to state here that once complaint is lodged with the answering OP, a docket no. is provided against registration of such complaint. However, from the records it transpires that no such complaint had been made in respect of the said LED TV as indicated by the Complainant. Complainant had thereafter lodged service requests in between October 2014 to March 2015 but the said complaints were subsequently rescheduled and thereafter cancelled by the Complainant himself and for the said reason the answering Op was not in a position to assess the exact dispute pertaining the said LED TV. Complainant thereafter raised the purported complaint on 24.07.2015 alleging that the said LED TV was having functional issue.
10. From the above underlined version it is evident the op-3 blowing hot and cold in the same breathe; firstly it speaks that no docket number was furnished, at the same time it speaks that the said complaints were subsequently rescheduled and thereafter cancelled by the Complainant himself . It is asserted by op-3 that complainant himself cancelled the said dockets, the onus of proving the said assertion is lying upon it only; otherwise the averment made by the complainant should be accepted as true. The complainant deposed that on 21.07.2014 only after 7 days it was found that the said T.V has been stopped. The complainant wrote a complain no of which is 417794. After the complain C.E.TECH computers servicing centre sent a technician for repairing the said T.V but he did not solve the problem. It is evident from the above evidence on record that the op-1 the service engineer visited and attended the complaint even within the warranty period but could not resolve the defect in the TV. He never pointed out that the defect found in the TV was responsible for any extraneous reasons like Mishandling/misuse;
a. Third party repair attempts;
- Improper voltage
- Normal wear and tear
- Physical damage and/or electrical damage caused by physicalimpact. The warranty shall be null and void in cases, like:
e. The product purchased is not used as per the rated power conditions or instructions mentioned in the instruction manual.
f. Site (premises where the product is used/Kept) conditions that do not conform to the recommended operations of the product.
g. Defects caused due to exposure to moisture/dampness/external thermal or environmental conditions or rapid changes in such conditions/corrosion/oxidations/spillage of liquid/influence of chemical substance.
11. In its evidence op-3 has stated inter alia that Subsequently on 15.08.2015 another complaint was lodged by the Complainant. The Service Engineer upon visiting the Complainant’s residence inspected the said LED TV and upon inspection it transpired that the Printed Circuit Board (hereinafter “PCB”) was damaged due to some external impact like exposure to dirt and moisture, exposure to high voltage power overloads during lighting strikes or a power surge and needed necessary repair. It is pertinent to note that the warranty period of the said LED TV had already expired and that any repair and/or replacement of spare apart were subject to payment of necessary charges. In support of this version op-3 has not filed any copy of job sheet. On the other hand in this regard the version of OP-1 is that he visited the house of the petitioner and replaced main PCB and advised to replace the main penal.OP-3 does not say any thing about the said change. OP-1 remained silent about the date of visit; nor he has filed the copy of job sheet or any documentary evidence to this effect. From the contradictory version it appears that ops 1 & 3 are suppressing material facts.
12. Had the op-3 carefully attended the complainant all dockets properly in time it could have found inherent manufacturing defect in it . PCBs are used to provide electrical connection and mechanical support to the electrical components of a circuit of LED TV . The complainant can not handle the PCB of his own. A man can not lodge several complains without any reason only to get the purchase money back unless there is force in the complains. This commission has to consider the preponderance of probability , proof beyond reasonable doubt is not required. It appears that the said Led TV suffered from a PCB failure since after its purchase. The product was found not functioning only after 7 days of its purchase. OP-1 failed to repair it, so it was not repairable then. It is found that there is inherent manufacturing defect in the PCB of the LED TV. It was replaced even. So no laboratory test or expert test was required to lodge the complain by the complainant. The op-3 had it so thought might have prayed before this commission for any laboratory test or to ask for expert opinion from any independent TV Mechanical Expert. Instead of curing the flaws / inherent manufacturing defect of high value LED TV properly within warranty period the op-3 was trying to establish extraneous flaws if any only. The said LED TV has inherent manufacturing defect. The defect arising out of manufacturing or faulty workmanship which was under warranty coverage .The facts and circumstances in the referred cases decided by the Hon’ble Supreme Court and the Hon’ble NCDRC are totally different from the facts and circumstances of this case. So, ops will not get any help from the Ratio of those cited cases in this case.
13. From total appraisal of the materials on record, it is clearly established and this commission is satisfied that the goods complained against suffers from the defects and the ops 2 & 3 set instances of deficiency of service. The ops 2 & 3 will be liable jointly and severally to replace the LED TV with new LED TV of similar description which shall be free from any defect, alternatively to return Rs. 61,900/- the price of the LED TV along with simple interest @ 7% per annum from the date filing of this case till full realisation, further will be liable to pay compensation for harassment suffered by the complainant to pay litigation costs.
14. Both the points are decided accordingly in favour of the complainant. Resultantly, the complaint case succeeds.
15. Hence, it is
O R D E R E D
16. That the CC/170 of 2017 be and the same is allowed on contest against the Opposite party- 3 ,allowed exparte against Opposite party -2 and dismissed against op-1.
17. The ops 2 & 3, who are jointly and severally liable, are hereby directed to replace the LED TV with a new LED TV of similar description which shall be free from any defect, alternatively to return Rs. 61,900/- the purchase price of the LED TV along with simple interest @ 7% per annum from the date of filing of this case till full realisation .
18. The ops 2 & 3, who are jointly and severally liable, are hereby further directed to pay Rs.5000/- as compensation and Rs.3000/- as towards litigation costs.
19. The complainant is at liberty to put the order into execution.
20. Let a copy of the judgment be supplied to each of the complainant and the OP s free of cost.
