This complaint having come up for final hearing before us on 04.03.2015 on perusal of the material records and on hearing the arguments of Thiru.M.Senthilkumar, the counsel for the complainant and Thiru.Siva Suyambu, the counsel for the opposite party and having stood before us for consideration, till this day the Forum passed the following
By President, Thiru..P.G.Rajagopal, B.A.B.L.,
This complaint is filed by the complainant u/s 12 of the Consumer Protection
Act 1986.
2) The gist of the complaint filed by the complainant is that he purchased Samsung LED (26-VT-1 4000) TV from the opposite party on 12.11.2012 for Rs. 19,000/- with one year warranty period but within 1-1/2 month from the date of purchase there was defect in the screen and hence when complained to the opposite party the latter sent Samsung Electronics Service Engineer through Janani Electronics, Kumbakonam and the engineer who inspected the TV on 18.12.2012 told that the picture tube had become defective and it would cost Rs.10,000/- to rectify it and he charged Rs.200/- towards labour charges and the receipt is obtained by the complainant in that regard and then when the complainant questioned the engineer as to how the picture tube of the new TV could become defective even within 1-1/2 month from the date of purchase of the TV, the said engineer carelessly told him to go and asked the dealer who told the TV. The complainant approached the opposite party who was not responsive and did not heed ears to the complainant and when the complainant sent the notice to the opposite party through his lawyer on 25.02.2013, the latter did neither send a reply nor comply with the requisition made by the complainant in that notice. The complainant therefore prays for the refund of the cost of the TV Rs.19,000/- and to pay Rs. 1,00,000/- towards compensation for the deficiency of service causing inconvenience and metal agony to the complainant along with litigation expenses to this complaint.
3) The gist of the written version of the opposite party is that the complainant was clearly instructed by the opposite party that for any manufacturing defect the complainant should contact either the manufacturer or the authorized service center and the opposite party could not be liable to the complainant for manufacturing defect.The complainan thas not impleaded the manufacturer as party to this complaint and therefore it is liable to be dismissed for non joinder of necessary party.The warranty to the sold product has been given by the manufacturer to the complainant and there is no privily of contract between the opposite party and the complainant. Therefore the complaint is liable to be dismissed.
4) The complainant has filed his proof affidavit reiterating all the averments made in his complaint and filed four documents which are marked as Ex.A.1 to Ex.A.4. The opposite party has filed his proof affidavit in support of his defence. Both sides have submitted their written arguments.
5) The points for Determination are:
1) Whether there is deficiency of service on the part of the opposite party?
2) Whether the complaint is bad for non joinder of necessary party the
manufacturer of the Samsung TV?
3) Whether the Complainant is entitled to any relief? If so to what relief?
6) POINT NO.1: The main grievance of the complainant is that the picture tube of the TV purchased from the opposite party had become defective even within 1-1/2 month from the date of his purchase and the service engineer who inspected this TV had informed him that the picture tube had become defective and it would cost Rs.10,000/- to rectify the defect and when the complainant approached the opposite party in connection with the defect of the picture tube of the TV sold to him, the latter had been evasive without taking any efforts to give redressal to the complainant.
7) The complainant has filedEx.A.1 the purchase bill of the Samsung LED (26-VT-1 4000) TV for Rs.19,000/- dated 12.11.2012.Ex.A.2 is the cash receipt given by the service engineer of Janani Electronics for receipt of Rs. 200/- towards labour charges for inspecting the TV.Ex.A.3 is the office copy of the notice sent by the complainant to the opposite party and Ex.A.4 is the series of photograph showing the TV purchased by the complainant. 8) The learned counsel appearing for the opposite party has argued that relief can not be granted against the dealer in case of manufacturing defect of goods and the relief could be sought only against the manufacturer and the complaint is liable to be dismissed for non joinder of the necessary party, the manufacturer of the TV.The learned counsel has submitted the decision reported “(2006)CPJ 603”
In which the Hon’ble TamilNadu State Consumer Disputes Redressal Commission, Chennai has held i
“Raja Mohamed ….. Appellant
/ versus /
Dhanabagyam & Anr….. Respondents
8) that relief can not be granted against the dealer incase of manufacturing defect of goods and there could be award only against the manufacturer.The perusal of the decision would go to showthat the complainant did not show any documents to prove that he made the complaint within the warranty period.
In the said decision the extract of the decision of theHon’ble National Commission in“ Western India State Motors/versus/ Sobliagmal Meena and Others is quoted.
It was a case where a TV set purchased was found to be defective, but within the warranty period, the complaint was made and in those circumstances, it was held that the opposite party was bound to replace it or set it right in such a way that it might give proper performance.
9 ) In this case in spite of the objection raised by the opposite party in his written version as well as proof affidavit that the M/s. Samsung limited manufacturer has not been arrayed party to the complaint and the complaint is liable to be rejected on the ground of non joinder of the necessary party.The complainant has not chosen to implead the manufacturer of the TVas the second opposite party in this complaint.While the manufacturer is liable to give redressal to the purchaser of the goods of any manufacturing defect,the dealer alone can not be made liable to the complainant in the absence of the manufacturer as party to this complaint.Hencethe opposite party can not be liable to give compensation to the complainant.
10) Though no deficiency of service could be attributed to the opposite party as far as the manufacturing defect of the TV is concerned, in this case the opposite party has been totally negligent and irresponsible in his attitude towards the complainant who has purchased the TV from him.The opposite party has not taken any care to send even a reply to the lawyer’s notice sent by the complainant.The dealer who has gained profit by selling the TV to the complainant ought to have sent reply informing the complainant not only to contact the manufacturer but should also provide him all guidance and assistance to contact the manufacturer in connection with the manufacturing defect found in the TV sold by him.On the other hand this opposite party has been totally evasive and irresponsible ignoring the grievance of the complainant. Therefore, the failure on the part of the opposite party to send a reply to the lawyer notice sent by the complainant and also to provide him necessary guidance and assistance to contact the manufacturer is nothing but sheer deficiency of service on his part.
11) POINT No.2: In view of the said decision relied on by the opposite party the manufacturer of the Samsung TV sold by the opposite party to the complainant is a necessary party to this complaint and as the complainant has not taken any steps to implead him the complainant as a necessary party the complaint is bad for non joinder of the necessary party.
12) POINT No.3: In the result, the complaint is dismissed for the technical defect of non joinder of the necessary party namely, the manufacturer of the Samsung TV sold by the opposite party to the complainant. At the same time, the opposite party is directed to pay the compensation of Rs. 5000/- (Rupees five thousand only) to the complainant for the deficiency of service on his part in not sending a reply to the lawyer’s notice sent by the complainant and also his failure to provide the necessary assistance and guidance to the complainant to conduct the said manufacturer of the Samsung TV sold by him. The opposite party is directed to pay the said sum of Rs.5000/- ( Rupees five thousand only) within 30 days from the date of this order to the complainant failing which it shall also carry an interest at the rate of 12% per annum. The complainant in the interest of promoting and protecting the interest of consumers, is at liberty to file fresh complaint impleading the manufacturer of the Samsung TV as the second opposite party within 30 days from the date of this order failing which his subsequent complaint shall be barred by the period of limitation. This order was dictated by me to the Steno-Typist, transcribed by her and corrected and pronounced by me on this 19th day of March 2015.
MEMBER -I PRESIDENT
List of documents on the side of the complainant:-
Exhibits | Date | Description |
Ex.A.1 | 12.11.2012 | The purchase bill of the Samsung LED (26-VT-1 4000) TV for Rs.19,000/-. |
Ex.A.2 | 16.12.2012 | Cash receipt given by the service engineer of Janani Electronics for receipt of Rs. 200/- towards labor charges . |
Ex.A.3 | 25.02.2013 | Office copy of the notice sent by the complainant to the opposite party. |
Ex.A.4 | … | Series of photograph showing the TV purchased by the complainant |
List of documents on the side of the Opposite party : NIL
MEMBER -I PRESIDENT
