Date of Filing:12/08/2013

      Date of Order:06/05/2016

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated: 6^TH DAY OF MAY 2016

PRESENT

SRI.SYED ANSER KHALEEM, B.SC., B.Ed.,LL.B.,PRESIDENT

SRI.H.JANARDHAN,B.A.L, LL.B., MEMBER

COMPLAINT NO.1479/2013

Sri Surendra Pillai,

S/o Sri Mahayana Pillai,

Aged about 52 years,

Residing at : ‘Durga Nivas’,

#7/1, Bhora Layout, Gottigere,

B.G. Road, Bannerghatta Road,

Behind Deepika Restaurant,

Bangalore-560 076.                         …. Complainant

V/s

1. The Manager,

M/s Samsung India Electronics (P) Ltd.,

2^nd, 3^rd & 4^th Floor, Tower C,

Vipul Tech Square, Sector 43,

Gurgaon – 122009.

Haryana, India.

2. The Manager,

Infiniti Retail Limited,

Croma 1^st Floor, H.M. Vibha Towers,

Koramangala,

Bangalore-560 030.

3. The Managing Director,

Infiniti Retail Ltd., (A Tata Enterprise),

202, Akruti Centre Point,

Next to Marol Telephone,

Exchange MIDC, Andheri (E),

Mumbai-400 093.                           …. Opposite Parties

ORDER

BY SRI.SYED ANSER KHALEEM, PRESIDENT

1.     The complainant has filed this complaint U/S 12 of the Consumer Protection Act, 1986 against the opposite parties (hereinafter referred in short as O.Ps) alleging deficiency in service on the part of the O.Ps and prays for direction to the O.Ps to refund the entire amount of Rs.1,23,200.51/- with interest at the rate of 18% per annum and to pay compensation  of Rs.1,00,000/- to the complainant for causing mental stress, agony hardship and inconvenience caused to the complainant and Further O.Ps to pay Rs.10,000/- towards cost of the proceedings.

2.   The brief facts of the complaint is that, the complainant purchased a new Samsung LED 3D TV on 14.08.2011 vide Bill No.SLF02A019010015052 at Star Bazar in Bangalore  for a price of Rs.1,23,200.51 from the O.p.No.1.  The O.P.  issued a warranty card and also an extended warranty to the complainant .  the complainant purchased the said TV by availing loan from the M/s. Bajaj Finance Ltd., The complainant alleged that subsequent two months of purchasing the said TV is stopped working and the complainant filed a complaint to the O.P dated 12.11.2011 requesting for rectification of the said TV.  The technician from the O.P. visited the complainant and after inspecting the said TV informed that inside board of the TV is burnt and it needs replacement.  Inspite of his several  communications the O.P. NO.1 did not attend the complainant even though promised orally to get the TV repair. Hence th complainant instead of keeping the TV repair warranty to get refund of the amount paid by him towards purchase of the said TV. Whereas the O.Ps did not refund the amount as entrusted by the complainant.  Hence the complainant got issued the legal notice dated 08.12.2011 to the O.Ps calling upon them replace the defective TV supplied by them with the new TV or refund the entire amount paid by the complainant with interest  at the rate of 18% per annum. The O.Ps sent an untenable reply and denying the claims made by the complainant. Further initially the complaint filed by the complaint is dismissed by this Hon’ble Forum vide its order dated 19.10.2012 with an observation that the complaint is not maintainable since the Samsung India Limited, the manufacturer of the said TV was not made a party to the proceedings and if there is any defect in the TV only the manufacturer is answerable and not the dealer. Thereafter the complainant got issued one more legal notice to the O.Ps on 22.03.2013 by making the manufacturer of the TV as one of the party calling upon them to refund the entire amount  by the towards the purchase of the said TV which is manufactured by the O.P. No.1 and sold by the O.P.No.2 which is owned by the O.P.No.3 with interest at the rate of 18% per annum. However O.P manufacturer did not answer the said notice.  Hence the complainant alleged that the act of O.ps unethical and unfair trade practice and against the principle of natural justice. Hence this complaint.

3.      Upon issuance of notice, O.P No.2 and 3 remained absent and accordingly O.P No.2 and 3 placed are placed exparte.

4.     However O.P.No.1 filed its version, in the version of O.P.No.1 contended that complaint is not maintainable in law since Hon’ble Forum has already dismissed the earlier complaint on merits and the present complaint is hit by res-judicata. Furthermore, earlier order passed by this Forum is not challenged by the complainant and hence its reached finality. Furthermore no liberty was provide to the complainant for filing a fresh complaint after rectifying a mistake that too on the same cause of action.  The complainant is already exhausted his remedy in CC.No.94/2012 on a particular cause of action. Hence the complainant is barred from the 2^nd complaint unless liberty is given by this Forum.  The O.P.No.1 contended that  the TV in question purchased by 14.8.2011 as per saying of the complainant it covers one year  warranty from 14.8.2011 and the same has expired on 13.8.2012 hence the complaint is filed on 12.8.2013 which is beyond  the warranty period.   O.p.No.1 also contended that as per technical problem TV has stopped from function due to supply of high voltage and due to abnormal power supply by inner part was burnt and the burnt part required for replacement. This fact also admitted by the complainant in his complaint. Hence such act is not covered under the warranted clause, still as a goodwill gesture as well as product was well within one year warranty period at the time of complaint and to avoid any delay or inconvenience to the customer and the company offered commercial settlement and  requested the complainant to comply with certain formalities to process the commercial settlement offered by the complainant. However, the complainant  instead of complying with the formalities as per the company policy but demanded for refund of the entire TV price without any basis on substance.  Hence the claim of the complainant was not processed. On other grounds O.P.No.1 prays for dismissal of the complaint.

5.     To substantiate the above case, both the parties have filed the affidavit evidence along with documents.  We have heard the arguments.

6.     On the basis of pleadings of the parties, the following points will arise for our considerations are:-

                                (A)    Whether the complainant has proved

                       deficiency in service on the part of the O.Ps?

(B)    Whether the complainant is entitled to the

         relief prayed for in the complaint?

(C)    What order?

7.     Our answers to the above points are:-

POINT (A) and (B) :  In the negative.

POINT (C):  As per the final order

for the following:

REASONS

POINT  No (A) and (B):-

8.     On perusal of the pleadings of the parties, it is an undisputed fact that, the complainant purchased a new Samsung LED 3D TV on 14.08.2011 vide Bill No.SLF02A019010015052 at Star Bazar in Bangalore  for a price of Rs.1,23,200.51 from the O.p.No.1 and covered with warranty for one year. 

9.     The allegation of the complainant is that, subsequent to purchase of the TV and the said TV in question stop functioning and thereby the complainant lodged the complaint to the service center. Thereafter  the service engineer/technician inspected the complainant’s TV and informed that inside board of the TV is burnt and it needs replacement. However,  the O.Ps did not replace the same and thereafter complainant filed by the complaint before this Forum and this Hon’ble Forum s dismissed the complaint vide its order dated 19.10.2012 with an observation that, the complaint is not maintainable since the Samsung India Limited, the manufacturer of the said TV was not made a party to the proceedings and if there is any defect in the TV only the manufacturer is answerable and not the dealer. Thereafter the complainant got issued one more legal notice to the O.Ps on 22.03.2013 by making the manufacturer of the TV as one of the party.  However the manufacturer did not respond to the complainant and hence the complainant filed this present complaint by making the manufacturer is the necessary party.

10.   It is worth to note that,  the complainant purchased the TV in question on 14.08.2011 and the initial complaint is filed on 12.08.2013 and the same was ultimately disposed by the Hon’ble Court with an observation that manufacturer not made as a party to the proceedings and he is a necessary and proper party to adjudication the claim and with this observation the Hon’ble Court ultimately dismissed the complaint. However, the complainant did not prefer any appeal against the orders of the District Forum and hence O.Ps rightly contended that the matter is reached finality.  Furthermore, in the earlier judgment and orders passed in CC.No.94/2012  this Hon’ble Forum  is not given any liberty to file the complaint on the same cause of action.  The position of law is clear even though the liberty is given to file the complaint on the same cause of action and it should be if the law permit to do so.  Hence,  the filing of the complaint is hit by law of limitation too. Admittedly the TV in question is also not covered with the warranty.  Hence, all the allegations made in the complaint holds no water.  The parties to the proceedings in order to prove their case  they should be vigilant and diligent.  Law will not extend its helping hand, those who slept over their rights.

11.   Furthermore, during the course of arguments and also in the version of the O.Ps it is clearly contended that, TV in question purchased by 14.8.2011 as per saying of the complainant it covers one year  warranty from 14.8.2011 and the same has expired on 13.8.2012 hence the complaint is filed on 12.8.2013 which is beyond  the warranty period. Hence such act is not covered under the warranted clause, still as a goodwill gesture as well as product was well within one year warranty period at the time of complaint and to avoid any delay or inconvenience to the customer and the company offered commercial settlement and  requested the complainant to comply with certain formalities to process the commercial settlement offered by the complainant. Also O.P.No.1 during the course of arguments submitted that the arguments they ready to offer to pay Rs.50,000/- to the complainant subject to retuning of the TV in question.  Hence, the complainant has to workout the remedy by returning the TV to the O.Ps and to receive Rs.50,000/- if the O.Ps oblige to do so.

12.   The O.P.No.1 relied on the decision of the Hon’ble Apex Court reported in 2006 (4)  SCC Pg 644 wherein, the Hon’ble Apex Court held in the similar matter defective parts only be replaced without any charge when it is found defective within the warranty period. Admittedly, there is no warranty period covered to the TV in question. Hence, the contention of the complainant is lame of strength and cannot be acceptable one. Under the circumstances and on the basis of the available evidence on record, we are of the considered opinion that, the complainant failed to prove deficiency in service on the part of the O.Ps and thereby the complainant is not entitled for the relief as sought in the complaint. Accordingly, we answered these points in the  negative.

POINT (C):

13.   On the basis of the findings given above on the point No.(A) and (B) and in the result, we proceed to pass the following:-

ORDER

1. The complaint is dismissed. No order as to cost.

2. Send a copy of this order to both parties free of cost.

(Dictated to the Stenographer, transcribed and computerized by him, corrected and then pronounced by us in the Open Forum on this the 06^th Day of May 2016)

MEMBER                        PRESIDENT

*Rak