IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Friday the 28th day of January, 2022
Filed on 16.02.2019
Present
1. Sri.S.Santhoshkumar, BSc.LLB (President)
2. Smt.C.K.Lekhamma, BA, LLB (Member)
In
CC/No.55/2019
Between
Complainant:- Opposite party:-
Sri. Ansar.P.A , 1. The Manager
Thaiparampil House, Radio Centre
Vellakinar Ward Thevarcad Buildings
Alappuzha District Near Vazhichery Bridge
(Adv. B.SomanathaKurup) (Adv. Jayan. C.Das)
2. The Manager
Impex Techzone
Room .No.2, J.P.Tower
Mullackal. Alappuzha
(Party in person)
O R D E R
SMT.C.K.LEKHAMMA (MEMBER)
| | 1. Brief facts of complainant’s case are as follows:- The complainant purchased an Impex 50 LED TV from the 1st opposite party, on 10.09.2016 after paying Rs.32,990/- and took the delivery of the set in a sealed cover to his home and mounted the set for operating with the help of a technician of his own but did not work. Immediately the fact was informed to the 1st opposite party and their technicians also inspected the set at complainant’s house, but could not operate and left. Since the 1st opposite party is the dealer of the product and had delivered the complainant/ consumer defective TV set without verifying whether it will work or not and that could not be operated even by their technicians. Thereafter the complainant contacted the 1st opposite party several times through telephone as well in person but had done anything for redressing the grievance of the complainant, cause to issue lawyer’s notice demanding replacement of the set or refund price on 19.01.2018 to both opposite parties, received by them but no response even to this day and is still within the warranty period of 3 years from the date of purchase. The opposite parties thus had committed deficiency in their service after selling a defective TV set to the complainant. Hence the complainant is subjected to grant mental agony. More over keeping of deaf year by the opposite parties to the calls and contacts and even to the lawyer’s notice regarding the subject matter also amounts to unfair trade practice and the TV set containing box is remaining in the complainant’s home without any use. The cause of action at Alappuzha on 10.09.2016 and thereafter on 19.01.2018. hence the complainant approached for seeking following reliefs:- - To direct the opposite parties to replace the TV set with a new one and with fresh warranty or to refund the price with interest.
- Compensation for deficiency in service and cost of the proceedings.
2. Version of the 1st opposite party in short is as follows:- The 1st opposite party contented that this complaint is barred by limitation since complainant purchased this disputed TV on 10.09.2016 and filed this complaint on 10.02.2019. Moreover the warranty has been provided for one year therefore the complaint is liable to be dismissed in limine. The paragraph No.1 and 2 of the complaint is false and hence denied. This opposite party admitted the purchase of the TV set. But the alleged defect is not true and this opposite party has not known. On 07.10.2016 the complainant informed about the defect and the same was communicated to the 2nd opposite party. Accordingly the 2nd opposite party’s service manager inspected the same and found the display complaint, who informed the complainant that which is not covered under the warranty. Statement in paragraph No.3 to 6 are incorrect and hence denied. This opposite party did not supply any defective product to the complainant. The alleged defect is not known to this opposite party which occurred some other reasons. There is no deficiency in service or unfair trade practice committed by this opposite party therefore the complaint is to be dismissed with cost of this opposite party. 3. 2nd opposite party filed a version as follows:- As per their records the complainant had purchased the disputed TV from their dealer, 1st opposite party which carries warranty of 1 year from the date of purchase for any manufacturing defects. The complainant registered a complaint on 07.10.2016 and on attending the complaint of their service engineer identified that the reason for the complaint was due to an internal brake of led panel due to an external force and it was noticed that the Tv installation was done by the technician of the customer himself. The company is providing free installation for the customer but the customer try himself for the installation without waiting the company’s expert service engineer. The brake of panel has been occurred on various reasons such as physical damage due to falling, application of external force, accidence, misuse, abuse, alternation, natural calamity, tampering, failure to use complying operation manual, voltage fluctuation, normal wear and tear, corrosion, resting or stains, scratches etc. shall not cover the warranty of the products. Their service engineer has informed and convinced the same to the complainant and told him that it was not a manufacturing defect. The said defect was the physical damage by the external force caused from the side of the complainant and hence not covered under the warranty policy of the company. But the complainant was not accepted this and demanded for the replacement of panel free of cost. There is no evidence with respect to the extended warranty avail for 3 years. Though the matter was taken up their service manager, and agreed to grant a discount of 10% over panel price, for replacing the damaged one, which is not covered under warranty but the complainant was not willing and bargained to get replaced on free of cost. Thereafter the service manager contacted again the complainant with a proposal to replace the TV panel with 25% discount over the price of the panel but he was not ready for that and he want to get replace the TV panel at free of cost. Hence there is no deficiency in service on the part of this opposite party. | |
4. Points that arise for consideration are:-
1. Whether the complaint is barred by limitation?.
2. Whether the complainant is entitled to get refund the price of the TV or replacement of the same?.
3. Whether the Opposite party has committed deficiency in service? If so what is the quantum of compensation?
4. Reliefs and costs .
On behalf of the complainant , Pw1 and Pw2 were examined Ext.A1 to A3 and Ext. C1were marked. Rw1 was examined and Ext.B1 was marked from the side of opposite party No.2. Thereafter we heard both sides.
5. Point No.1:-
The case of the complainant is that he had purchased the disputed TV on 10.9.2016 as per Ext.A1 invoice and he engaged a technician, who mounted it and tried to operate the same. But found that it was not working. As per the information of the complainant, the technician of the 1st opposite party examined the set but could not operate it. Thereafter, the complainant contacted the 1st opposite party several times but did not do anything. Finally issued Ext.A2, the lawyers notice dt.19.1.2018, demanding to replacement of the set or to refund the price of the same. Complainant contented that the product has 3 years warranty to prove that produced Ext.A3, service and support report was taken from the site of the manufacturer.
Opposite parties denied all the allegations in the complaint and the first opposite party contented that the complaint is barred by limitation. The 2nd opposite party contended that the product was purchased on 10.9.2016 and it has covered a warranty of one year. The complainant registered a complaint on 7.10.2016 and the technician found that the defect was due to an internal break of the led panel due to an external force, it is not a manufacturing defect and the complainant was convinced about that the physical damage of the TV does not get warranty coverage. Hence there is no deficiency in service on the part of the opposite parties and the alleged deficiency is fictitious.
Admittedly the disputed product was purchased on 10.9.2016. The case of the complainant is that the very same day itself found the defect. The cause of action shown in the complaint is the date of purchase and thereafter on 19.1.2018, the date of issuance of the lawyer notice. It is to be noted that this complaint was filed on 16.2.2019 ie, nearly 2 ½ years after the date of purchase. Sec. 24A of the Consumer Protection Act 1986 (CP Act) deals with Limitation, which reads as follows:-.
“24A. Limitation period- (1) The district forum, the state commission or the National commission shall not admit a complaint unless it is filed within 2 years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contain in sub section 1,a complaint may be entertained after the period specified in sub section(1), if the complainant satisfies the District forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records it’s reasons for condoning such delay”.
In the present case the opposite party raised the plea that the complaint was barred by limitation.
The decision rendered by the Hon'ble SC in State Bank of India V. M/s BS Agricultural industries (I) AIR 2009 SC 2210.
The Hon'ble Apex Court referring to sec.24A as held, “it would be seen from the said provision that it is peremptory in nature and requires the consumer forum to see before it admits the complaint that it has been filed within 2 years from the date of approval of cause of action. The expression, “shall not admit a complaint” occurring in sec.24A is sought of a legislative command to the consumer forum to examine own it’s on whether the complaint has been filed within the limitation period prescribed their under”.
It appears that the time for filing the complaint commenced running from 10.9.2016, the date of purchase, it was alleged that the defect is found on the same day itself and hence the complaint should have been filed on or before 10.9.2018. But this complaint was filed only on 16.2.2019. Thus approaching the Commission after the lapse of 5 months from the deadline set out by the Consumer Protection Act.
Another date shown for continuing cause of action is 19.1.2018, the date of the lawyer's Notice ( A2). The said notice is not to help the complainant since as per the complaint the cause of action has already been started in September 2016 onwards. There is no application for the condonation of delay nor any sufficient cause shown for delay. Therefore, the question of condonation of delay in filing the complaint doesn't arise. Hence in the light of above discussions, it is found that the complaint is barred by limitation and is liable to be dismissed on that ground.
6. Point no.2&3:-
Admittedly the disputed TV is defective at the right beginning and the ops contended that on 7.10.2016 the complainant informed them about the complaint. According to the opposite party even though the defect occurred within the warranty period, such a defect is not covered under the warranty since the service engineer of them identified the internal break of the led panel which occurred due to an external force. Pw2, the expert commissioner found the display fault and reported in Ext.C1 report and assume that it happens during transportation or at the time of packaging. Further reported that the panel has thin glass compared to other brands. The complainant, pw1 admitted that the installation of the set has been done by his technician. It is also admitted the distance between his house and the shop of the 1st opposite party is 3 Km. It appears that though the technician of the opposite parties is available for the free installation the complainant had engaged another person for installation. It is to be noted that the complainant failed to show that said defect occurred at the hands of opposite parties. Further, there is no convincing reason pleaded for the delay in filing the complaint. In the absence of convincing evidence points nos.2&3 are found against the compt. We have already found that the complaint is barred by limitation.
7. Point.no.4
In the result, the complaint is dismissed. No order as to cost.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 28th day of January, 2022.
Sd/-Smt.C.K.Lekhamma (Member)
Sd/-Sri.Santhosh Kumar (President)
Appendix:-Evidence of the complainant:-
PW1 - Ansar.P.A (Complainant)
PW2 - Prabhu.M.K(Commissioner)
Ext.A1 - Retail Invoice
Ext.A2 - Registered Notice with A/D
Ext.A3 - Warranty Card.
Ext.C1 - Commission Report
Evidence of the opposite parties:-
RW1 - Gireesh Kumar.G(witness)
Ext.B1 - Warranty Card
//True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Sa/-
Compared by:-
