BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 178/2006 Filed on 28.06.2006

Dated : 31.01.2009

Complainant:

S.B. Lopez, Prabha House, Puthiyathura Purayidom, Pulluvila P.O, Thiruvananthapuram.

(By adv. Zeena S. Fernandez)

Opposite parties:

1. Manager, DEEDI'S-The BPL Gallery, M.G. Road, Near S.M.V School, Thiruvananthapuram.

    

   (By adv. James Ninan)

2. The General Manager, BPL Sanyo Limited, 17 KM, Old Market Road, Avalanalu, Bangalore.

This O.P having been heard on 16.01.2009, the Forum on 31.01.2009 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

Facts of the case are as follows: Complainant is a retired Army personnel. The 1^st opposite party is the authorized distributor and the 2^nd opposite party is the manufacturer of BPL Sanyo Ltd. That the complainant on 10.04.2004 purchased a VCD vide invoice No. 599 from the 1^st opposite party. The VCD became defective thrice within the warranty period. The third time the 1^st opposite party received the VCD for repair and never returned it. Ever since 18.12.2004 after giving the VCD for repair to the 1^st opposite party, many number of times the complainant visited the 1^st opposite party requesting to return the VCD. On all such occasions the 1^st opposite party made one or other excuses. On one such occasion 1^st opposite party's sales personnel even abused and manhandled the complainant. The complainant felt very humiliated and the mental agony suffered by him cannot be explained in words. The 1^st opposite party after receiving the VCD for repair has not so far returned the same. After purchase, the VCD was used by the complainant according to the instructions given in the user's manual. And the equipment became defective thrice during the warranty period. And the complainant is entitled to the warranty benefits. The complainant alleges that the VCD was not of standard quality and was defective which is against the representation of performance and efficacy in the warranty card issued to the complainant and which amounts to unfair trade practice. Hence the complainant approached this Forum for his grievances.

1^st opposite party filed version contending the statements of the complainant. The 1^st opposite party, the authorized dealer of BPL Sanyo states that the complainant is not a consumer as per the provisions of Consumer Protection Act. The 1^st opposite party further contended that the complainant purchased the VCD from the 1^st opposite party on 10.01.2004 and in this case the 1^st opposite party is only a dealer who sold the product manufactured and sent from the 2^nd opposite party and further submitted that the 1^st opposite party is not a service dealer of the said product. That the complainant selected and purchased the product after fully satisfied himself with the performance of the said product and no defect was noticed when the said system was put into use. It is further submitted that the alleged subsequent events after the purchase and use of the product in question is unaware to the 1^st opposite party. It is understood that the complainant entrusted the said product for repairs with the authorized BPL Service Centre at M/s Universal Trading Co. who are bound to rectify the alleged defects if any of the said product and they were not made as a party to this complaint and the suit is bad for mis-joinder of necessary parties. It is submitted that the 1^st opposite party is in no way be held liable for the alleged defects if any of the said product. The allegation that the 1^st opposite party's sales personnel abused and manhandled the complainant is utter falsehood and hence denied. No such event ever happened as alleged. It is submitted that there is no deficiency of service or unfair trade practice on the part of this opposite party. Hence the 1^st opposite party prayed for the dismissal of the complaint.

In this case, the 2^nd opposite party the manufacturer of BPL Sanyo Ltd. remained exparte. The complainant has filed affidavit in lieu of chief examination and he was examined as PW1 and the opposite party has cross examined him. From the side of the complainant 7 documents were marked as Exts. P1 to P7. 1^st opposite party has no oral evidence, they have produced 3 documents which were marked as Exts. D1 to D3.

Points that would arise for consideration are:-

1. Whether there is unfair trade practice and deficiency in service on the side of opposite parties?

2. Whether the complainant is entitled to get the reliefs and costs?

Points (i) & (ii):- The allegation of the complainant is that the VCD became defective thrice within the warranty period. The third time the 1^st opposite party received the VCD for repair and never returned it. He has produced 7 documents to prove his case. The first document is the original invoice No. 599 dated 10.01.2004 issued by the 1^st opposite party. It shows that the price of the VCD was Rs. 10,000/-. The 1^st opposite party has no dispute regarding this purchase. The warranty card issued by the 2^nd opposite party is marked as Ext. P2. This document is the evidence that the VCD has one year warranty. The complainant alleged that from the beginning itself the set was not working properly and after two days the set was completely not in a working condition and the service centre of the opposite parties repaired it and thereafter again the set became defective. The complainant himself sent notice on 28.02.2005 to the opposite parties informing this matter. The copy of that notice is marked as Ext. P4. But there was no response from the side of opposite parties. Ext. P3 is the receipt issued by the 1^st opposite party after receiving the VCD for repair on 18.12.2004, and the VCD is still with the custody of 1^st opposite party. Till date there was no action from the side of opposite parties to repair it. Ext. P5 is the copy of lawyer's notice issued by the complainant to the opposite parties on 24.05.2006. Ext. P6 is the postal receipt and acknowledgement card of the notice. Ext. P7 is the reply notice sent by the 1^st opposite party dated 29.06.2006. Through this notice the 1^st opposite party denied the allegations levelled against them and also advised the complainant to contact the service centre to rectify the defect if any of the VCD and the 1^st opposite party has no liability for that. The complainant had entrusted the VCD to the 1^st opposite party on 18.12.2004. Ever since from that date there was no action taken by the 1^st opposite party to settle the matter. As an authorized dealer the 1^st opposite party has some responsibility to settle the matter. Since the 1^st opposite party had sold the VCD to the complainant, the 1^st opposite party cannot evade liability for repair or replacement on the ground of service centre with whom the complainant had entrusted the VCD having not been impleaded as party to the complaint or service was to be effected by the said service centre. In this case if the dealer had settled the matter amicably there was no need to drag the complainant into this litigation. There is no dispute regarding the fact that the defects occurred during the warranty period. Hence the opposite parties are liable to rectify the defect if curable or replace the same. But there was no action from the side of opposite parties to settle the matter. The complainant had purchased the VCD with his earned money for his personal use but the complainant and his family were not able to enjoy the VCD. We find that the VCD became defective within the warranty period because the VCD was not of standard quality and was defective which is against the representation of performance and efficacy in the warranty card issued to the complainant and which amounts to unfair trade practice. It is clear that the opposite parties have adopted unfair method to make unlawful gain.

As per Sec. 13(1)(c) of the Consumer Protection Act, expert opinion is necessary to decide the case, but in this case since the VCD is with the custody of the opposite party, the said procedure is not capable of being followed. As per the ruling cited in 1999(4) SCC 315 it is the settled position that no fault can be found with the District Fora, State Commission or the National Commission, in the matter of not following the procedure under Sec. 13(1)(c) when the complainant was not in possession of the same. Hence there is no need for following the procedure under Sec. 13(1)(c) of the Consumer Protection Act. In this case from 1^st opposite party's side three documents are produced. D1 is the copy of reply notice sent by them to the complainant on 29.06.2006. Complainant produced the original reply notice as Ext. P7. Exts. D2 and D3 are the postal receipt and acknowledgement card. 1^st opposite party has not adduced any other evidence to contest the case. 2^nd opposite party accepted the notice issued from this Forum, but they did not turn up to contest the case.

In this case the complainant has produced sufficient documents, evidences and pleadings to prove his case. From the recorded evidences we are inclined to conclude that there is deficiency in service and unfair trade practice from the side of opposite parties. In this case the defect of the VCD occurred within the warranty period that the complainant purchased the VCD set on 10.01.2004 and the complainant entrusted the set to the 1^st opposite party for repairing on 18.12.2004 i.e; well within the warranty period. Hence the opposite parties are bound to rectify the defects as per the warranty conditions. But the opposite parties did not turn up to repair it. The set is still within the custody of the 1^st opposite party. If the 1^st opposite party had taken appropriate action to repair the set or replace or amicably settle the matter since it has arisen the warranty period itself, the complainant would not have been forced to approach this Forum. Being the dealer of the 2^nd opposite party, the 1^st opposite party had a responsibility to maintain customer dealer relationship and the after sales service.

From the above mentioned discussions, we find that there is unfair trade practice and deficiency in service from the side of opposite parties. Hence the opposite parties are jointly and severally liable for that and the complaint is allowed.

In the result, the opposite parties are directed to refund Rs. 10,000/-, the price of the VCD and also shall pay Rs. 4000/- as compensation and Rs. 1500/- as costs. Time for compliance one month, thereafter 9% annual interest shall also be paid to the above said amounts.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 31^st January 2009.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

C.C. No. 178/2006

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - S.B. Lopez

II COMPLAINANT'S DOCUMENTS :

P1 - Original invoice No. 599 dated 10.01.2004 for Rs. 10,000/-.

P2 - Original user's manual with warranty card.

P3 - Original receipt issued by the 1^st opposite party.

P4 - Copy of letter sent by the complainant dated 28.02.2005.

P5 - Copy of lawyer's notice dated 24.05.2006.

P6(a) - Original postal receipt dated 26.05.2006.

P6(b) - Original acknowledgement card.

P7 - Original reply notice dated 29.06.2006.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Copy of reply notice dated 29.06.2006.

D2 - Copy of postal receipt dated 04.07.2006.

D3 - Copy of postal acknowledgement card dated 05.07.2006.

PRESIDENT