Orissa

Rayagada

CC/88/2018

Tapaswini Priyadarshini - Complainant(s)

Versus

The Manager, LG, Electronics India Pvt. Ltd., - Opp.Party(s)

Self

31 May 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

                                      PO/DIST; RAYAGADA,   STATE:  ODISHA ,Pin No. 765001

C.C. Case  No.   88/ 2018.                              Date.      31  .     5  . 2019.

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                                                   President

Sri Gadadhara   Sahu,                                                                     Member.

Smt.Padmalaya  Mishra,.                                                              Member

 

Smt. Tapaswini Priyadarshini, W/O: Trailaknath Mishra, At:Kasturi Nagar, 5th. lane,    Po/Dist:    Rayagada, State:  Odisha.                      …….Complainant

Vrs.

1. The Manager, L.G.Electronics India Pvt. Ltd., A wiwng, 3^rd. floor, D-3, District Centre, Saket, New Delhi.    110017.

2.The  Proprietor, Jagannath  Sales, Kapilash Road, Rayagada.

.…..Opp.Parties.

Counsel for the parties:                                 

For the complainant: - Self.

For the O.P No.1  :- Sri S.K.Mohanty, Advocate, Bhubaneswar.

For the O.P. No.2:- Set Exparte

 

                                                JUDGEMENT.

The  curx of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for  non refund of price of the  LG LED TV set a sum of Rs.55,000/- towards found defective during warranty period     for which  the complainant  sought for redressal of the grievances raised by the complainant.

Upon  Notice, the O.P No. 1   put in their appearance and filed  written version through their learned counsel in which  they refuting allegation made against them.  The O.P No. 1   taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.P No. 1.   Hence the O.P  No.1 prays the forum to dismiss the case against  them  to meet the ends of justice.

Upon  Notice, the O.P No.  2  neither entering in to appear before the forum nor filed their  written version inspite of more than  10 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.P No. 2 .  Observing lapses of around 1year  for which the objectives  of the legislature of the C.P. Act going to be destroyed to the prejudice of the interest of the complainant.  Hence after hearing  the  counsel for the complainant set the case  exparte against the O.Ps 2. The action of the O.P No. 2 are against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.P No.  2  was set exparte  as the statutory period  for filing of  written version was over to close the case with in the time frame permitted by the C.P. Act.

 

Heard arguments from the learned counsel for the    O.P    and from the complainant.    Perused the record, documents, written version  filed by the parties. 

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.

                                                                    FINDINGS.

                Undisputedly the complainant had  purchased  the L.G.Brand model  49LJ523T LED T.V. on payment of consideration   a sum   for Rs.55,000/- to the  O.P. No.2 (copies of the  Retail invoice No. 54 Dt.18.08.2017  is in the file which is marked as Annexure-I).

               

 

 

The main grievance of the complainant  was that   the above set was  running about  3 months  and after  that  the  above set did not function properly and the pictures have not displayed on the picture  screen.  The complainant had   intimated the same  fact to the O.Ps but  the O.Ps could not   rectified the defects  of the abvove set till date. Hence this C.C. case.

The  O.P.No.1 in their written version  contended that under clause-9, this being a case of physical damage caused to panel of television, warranty  status became void and disentitle consumer to get free services.  The liability of O.P and right of complainnt seizes due to expressed terms and conditions of warranty  clause-9, of warranty conditions runs as follows”-

Clause-9 “In case of any damage to the products/customer abuse/repairs by  unauthorised personnel/misuse detected/by authorised service centre personnel the warranty will be considered void and  shall also not be applicable to warranty terms and conditions. Also repair will be dodne on chargeable basis only, subject to availability of parts”.

Even, at this stage O.P. is ready and willing to repair the television on chargeable basis only. It is submitted, that  complainnt was provided  with an estimate which covers charges of spare parts, service charges  and statutory taxes.   Further  the complainant is not supported with single scrap of paper, establishing claim, and in such circumstances, the complaint is liable to be dismissed .  On the other hand the O.Ps have also not submitted any report from expert to substantiate their claim regarding the physical damage of the product but not due to manufacturing defect the LCD T.V set found defect with in the warranty period.

 

The O.P. No.1  relied citations  in their written version  of the  apex court which are  mentioned  here:-

                It is held and reported in CPC 2006(2) page No.115 Chd. where in the Hon’ble Commission has observed  “That the claim of the complainant based only on  averments  made in complaint petition without any corroborative evidence can not  be allowed “. 

                Further in the  case  of  Maruti Udyog Ltd. Vrs. Susheel  Kumar Gabgotra and others  reported in  (AIR-2006)S.C 1586 where in the Hon’ble Supreme Court observed “Warranty conditions clearly refers to replacement of defective part not the  car – Not a case of silence of a contract of sale to warranty”.

                Again it is held and reported in  2001(3) CPR- page No. 149 in the case of Mrs. Jannifer Athones Vrs. M.D., M/S. Ind. Auto and Anr.  where  in the Kerala State CDR Commission has observed  “Technical questions like manufacturing defect when pleaded by complaint burden  is on him to adduce evidence”.

                Further it is held  and reported in  CPR 2002(3) page No. 92  in the case of K.L.Arora Vrs. Groovy Communications where in the  Hon’ble National  Commission has observed  “For the necessary of expert evidence to prove the submissions of manufacturing defects in the  goods made in the complaint”.

                Again it is held and reported in  CPR- 1999(1) page No.20  in the case of   M/S. Videocon  International   Ltd. Vrs.  K.Viyjayan & others    where in the  Hon’ble Commission  observed “That for replacement of product the defect   must be  manufacturing and for proving manufacturing defects expert report  is essential”.      

                Further   it is held and reported in  NCJ  2000 page  No. 59  in the case of Sterocraft Vrs. Monotype India Ltd., New Delhi the  hon’ble Commission has observed  “ When terms of  warranty does not  cover refund   or replacement then consusmer can not claim either replacement or 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”. 

The O.P. No. 1  vehemently contended that in this case there is no  manufacturing  defect in the  above set of the complainant, but the complainant has filed this fabricated complaint only to  tarnish the reputation of the O.P No.1   and to secure the unlawful gains from the O.Ps.

 

For better appreciation  this forum  relied citations  which are mentioned here under:-

It is held and reported in Current Consumer Case  2005  Page No. 527 (NS) in the case of Meera&Co Ltd. Vrs. ChinarSyntex Ltd  where in the Hon’ble National Commission  observed “Consumer-    Generating set purchased -  defects developed  during  warranty  period - repairs done on payment - dealer can not be absolved from his liability   because manufacturer has not  been impleaded- dealer deficient in service- order  to dealer   refund   amount with interest to the complainant.”

Again It is held and reported  in CTJ-2005, Page No. 1208 where in  the hon’ble  National Commission   observed  “Both the dealer & manufacturer of the  product having defects  in it, are jointly and severally liable to the  purchaser, because he knows only the dealer from whom he purchased that  product and not its manufacturer”. 

 

Further   It is held and reported in CPR- 2009 (2) Page No. 42  where in  the Himachal Pradesh  State Commission  observed “ we may mention here that it is by now well settled that the C.P. Act, 1986 is a welfare  legislation  meant to give  speedy  in expensive and timely justice to the parties. Similarly it is also well know that where  two views are possible, one favourable to the consumer needs to be followed.”

           

            Again it  is  held and  reported in  Consumer Law today 2014(1) page No. 153 where in the  Hon’ble  Goa State Commission observed “The tax invoice duly   signed by dealer can be considered to be an agreement between the parties subject to which the   sale was   made to the  consumer – liability for defect in article sold both the dealer and manufacturer  are jointly and severally. 

 

We are of the opinion that the case  is relating to defective goods  which is covered under section 2(i)(f) of the C.P. Act. The C.P. Act  which provides that  “Defective means any fault, in imperfection or shortcoming in the quality, quantity, potency, purity are standard which is required to be maintained by or under any law for the time being in force”.                                                                  After amendment made by  the C.P. Act   of 2002 wherein it  is made clear that when a complainant  is using the product of the Sony   manufacturing company   purchased from the  present  O.P.  is also coming within the definition of consumer and the service provided  or attached to the said  goods in the shape of warranty or guarantee is also available to the users.

Since the  above  goods     was sold by the   O.P, it can not evade  liability  for repair/replacement of spare parts on the ground of manufacturer of the  above goods  with whom the  complainant did not have any privity of contract , having  not been impleaded as party to the complaint  or service was to  be  affected. Further the complainant  will be a consumer within the meaning of Section 2(1)(d) of C.P. Act, 1986.

            Further no trader or  manufacturer can escape from its liability of selling defective goods much less the defects that are manufacturing and irreparable. In the instant case  the consumer has been left high and dry due to the defective  LED  and faulty workmanship  used at the time of manufacturing the LED. It was with an object to protect the interest of the consumer  and curb  the tendencies of unscrupulous manufacturers and dealers who care  for the quality or  standard which is required to be maintained in relation to the goods  the Consumer  Protection Act was brought on the  statute book and  by virtue of provisions of Section -14 of the Consumer Protection Act,1986 the Consumer Fora  has the power to direct the dealer to do one or more of the following things, namely:-

                        Sec.14( c) : to return the complainant the price, or as                                               the case may be, the charges paid by the complainant ,

                         (d) to pay such amount as may be awarded by its  as                                              compensation to the consumer for any loss or injury                                                suffered by the consumer due to the negligence of    the  opposite party; 

            The word ‘ defect’ as defined under Section 2(1)(f) of the Consumer Protection Act means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or ( under any contract, express or implied, or ) as is claimed by the trader in any manner whatsoever in relation to any goods and  the term ‘ deficiency in service ‘  as per Section 2(1)(g) means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law  for the time being in force or has been undertaken to be performed by a person in pursuance  of a contract or otherwise in relation to any service.           

            In the present case in hand    the defects therein developed  within warranty period of one year. For the best interest of justice in our opinion the O.Ps. should  replace  LCD panel  of L.G. LED    T.V    with a new  one defect free which  is  lying  at complainant premises.

Further we observed the O.Ps are not rendering proper service to the complainant establishes their callousness and whimsical attitude. The  forum feel that the O.Ps services are deteriorating and does not follows   ethics.  Due to the same attitude  the complainant deprived of  to get the good service during warranty period.

In view of the above discussion relating to the above case and  In Res-IPSA-Loquiture  as well as  in the light of the settled legal position  discussed  as above referring citations the plea of the  O.Ps to avoid the claim  which is Aliane Juris. Hence  we allow the above complaint petition  in part.

Hence to the meet the ends of justice the following order is passed.

                                                ORDER.

In resultant the complaint stands allowed in part against  O.Ps  on contest.

The O.P No. 1 (Manufacturer) is   directed to remove all  the defects  including  replacement of LCD panel  of   L.G. LED    T.V    with a new  one defect free  which  is  lying defunct, unused  at complainant’s  premises and repair  free of cost enabling the complainant to use the same in perfect running condition like a new one    and shall provide all sort of after sale service to the complainant as per the terms and conditions of the  warranty of the afore said   set  with  extended further 6(six) months  fresh warranty.  Parties  are left to bear their own cost.

Further  the O.P. No.2 (Dealer)  is directed to refer the matter to the O.P. No.1(Manufacturer) for early compliance of the above order and co-operate the complainant for better co-ordination with the O.P.  No.1 to provide satisfying service  for which he is entitled.

This  is to  be  complied   by the O.Ps.  within 45 days  from the date of receipt of this order. 

Copies of the order be served  on the parties free of cost  as per rule.

Dictated  and corrected by me.  Pronounced on  this      31^st.           day of       May,  2019. 

Member.                              Member.                                          President.

 

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