BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM<br /> VAZHUTHACAUD : THIRUVANANTHAPURAM<br /> <br /> PRESENT :<br /> <br /> SHRI. G. SIVAPRASAD : PRESIDENT<br /> SMT. BEENA KUMARI .A : MEMBER<br /> SMT. S.K. SREELA : MEMBER<br /> <br /> O.P.No. 95/2002 Filed on 21..03..2002 <br /> Dated: 30..07..2008<br /> Complainant:<br /> <br /> K.G. Thomas, 'Raina', T.C.2/99, Kesavadasapuram, Thiruvananthapuram.<br /> (By Adv. Shri. S. Reghukumar)<br /> <br /> Opposite parties:<br /> <br /> 1. L.G. Electronics India (Pvt.) Ltd., 221, Okla Industrial Estate, Phase III, New Delhi – 110 020. Represented by its Manager.<br /> <br /> 2. L.G. Electronics India (Pvt.) Ltd., Vasudeva Buildings, 40/1270, T.D Road, Ernakulam, Cochin – 682 011. Represented by its Manager.<br /> <br /> (By Adv. Shri. Michael Kutty Mathew)<br /> <br /> 3. Manager, S. Koder Ltd., M.G. Road, Statue, Thiruvananthapuram.<br /> <br /> (By Adv. Shri. Rajesh. V.V) <br /> This O.P having been heard on 15..07..2008, the Forum on 30..07..2008 delivered the following:<br /> <br /> <br /> ORDER<br /> <br /> SHRI. G. SIVAPRASAD, PRESIDENT:<br /> The facts leading to the filing of the complaint are that complainant purchased one L.G. Colour Television for a price of Rs.19,300/- from the 3rd opposite pary, who is the dealer of the 1st opposite party. The said TV is manufactured by the 1st opposite party and the 2nd opposite party is the Regional Office at Ernakulam. The said TV had a warranty for a period of one year from its date of purchase ie. 01..08..1999. The said TV had inherent manufacturing defect and showed problems right from the inception and the picture was seen blurred and colour adjustment were not effective and the matter was reported to the authorised service centre at Thiruvananthapuram. But the defect in the TV continued and the problem deteriorated further, and the said TV was again handed over to the authorised service centre on 16..08..2001, but the defects were not rectified. On 09..10..2001, the complainant sent a letter to the 1st & 2nd opposite parties explaining the whole position. The 2nd opposite party sent a reply letter dated 25..12..2001 stating that they are ready to give a discount of 30% on the picture tube. The said TV did not have the quality mentioned in the brochure. The service which the opposite parties offered during the warranty period was deficient in every respect. Moreover the said TV is still with the service centre of the opposite parties. The opposite parties have committed unfair trade practice and deficiency in service. The complainant purchased the said TV on the advice given by the representatives of the opposite parties by exchanging his Teltronics brand TV which was giving satisfactory performance. The representative of opposite parties had given assurance that the said TV would give better performance. The opposite parties supplied a TV set which was defective and opposite parties failed to rectify the defects. Hence this complaint claiming refund of Rs. 19,300/- with interest from 01..08..1999 till realisation, an amount of Rs. 50,000/- towards compensation and cost of the proceedings.<br /> <br /> 2. 1st and 2nd opposite parties entered appearance and filed version contending that the complaint is not maintainable either in law or on facts and the complaint is filed as an attempt to get rich at the expense of the opposite parties by manipulating the process of law. Paragraphs 1 to 3 of the complaint are admitted. Paragraph 4 of the complaint is false and hence denied. Any TV or other electronic products manufactured by opposite parties 1 & 2 will pass through a series of quality control tests under strict observation and has to meet high quality performance standards before they are marketed. Any inherent defect observed will be tackled with at the production plan itself. Handling over to the ASC after a period of one year after the warranty period is over shows the malafides of the filing of a complaint. L.G electronics maintains a very cordial working relationship with its customers and is willing to co-operate with the customers satisfactory enjoyment of its product even after the period of warranty. Opposite parties had offered picture tube at 30% reduction. Paragraph 7 is false and hence denied. The TV did not develop any defect during the warranty period and opposite parties were never contacted to this period. The complainant has no locus standi to file this complaint. Hence prayed for dismissal of the complaint.<br /> <br /> 3. 3rd opposite party entered appearance and filed version contending that no defect was informed to the 3rd opposite party by the complainant during the warranty period. The 3rd opposite party had no knowledge about the notices sent to the 1st & 2nd opposite parties. The 3rd opposite party did not receive any notice of information regarding the defects to the said TV. 3rd opposite party had no knowledge about the averment in the complaint that complainant handed over the said TV to the service centre of L.G Electronics India Ltd. The said TV has no defect during the warranty period. If there is any manufacturing defects during the warranty period the same will be informed to the 3rd opposite party. 3rd opposite party came to know about the alleged defect only when he received the notice of the Commissioner asking him to be present at the service centre on 17..10..2003. 3rd opposite party is not liable to pay any amount to the complainant. So the relief claimed are not maintainable. There is no unfair trade practice alleged against 3rd opposite party. Hence prayed for dismissal of the complaint.<br /> 4. The points that would arise for consideration are:<br /> (i)Whether the L.G Colour Television is having inherent manufacturing defects?<br /> <br /> (ii)Whether the complainant is entitled to refund the purchase price of TV with interest.<br /> <br /> (iii)Whether there has been deficiency in service and unfair trade practice on the part of opposite parties?<br /> <br /> (iv)Other Reliefs and Costs?<br /> To support the contention in the complaint, complainant has filed an affidavit of himself as PW1 in lieu of examination in chief and marked 8 documents as Exts. P1 to P8 and Commission Report as Ext. C1. On behalf of opposite parties 1 & 2 Vinod Kumar, Manager, LG Electronics India (P) Ltd.has filed an affidavit in lieu of chief examination. Opposite parties 1 & 2 did not file any document. On behalf of 3rd opposite party, S. Murugan, Administrative Assistant has filed proof affidavit. 3rd opposite party did not file any documents.<br /> <br /> 5. Points (i) to (iv) : Admittedly, the complainant purchased LG Colour TV from the 3rd opposite party. Ext.P1 is the bill bearing number 10366 for Rs. 19,300/- issued by the 3rd opposite party to the complainant. It has been the case of the complainant that complainant has purchased the said LG TV on the advice given by the representative of the opposite parties by exchanging his Teltronics brand Television which was giving satisfactory performance. As per Ext.P1 3rd opposite party has received a cheque bearing No.428807 for Rs. 16,000/- dated 06..08..1999 from the complainant. At the bottom of Ext.P1 bill it has been mentioned that Rs. 19,300/- (after exchanging the Teltronics TV). Ext. P2 is the copy of warranty card. As per Ext. P2, the said TV would come with a 12 months warranty on all parts from the date of purchase against defective material or workmanship. Date of purchase not mentioned in Ext. P1 bill. Complainant submitted that the date of purchase was 01..08..1999. The main thrust of argument advanced by the counsel appearing for the complainant was to the effect that the said TV had inherent manufacturing defect and showed problems right from the inception and the picture was seen blurred and colour adjustments were not effective and the matter was reported to the authorised service centre at Thiruvananthapuram. The defect in TV continued and problem deteriorated further and the CTV was again handed over to the authorised service centre on 16..08..2001 but the defects were not rectified. Ext. P3 is the service call sheet issued by LG. authorised service centre. The main defects stated in Ext.P3 are CPT defective . The set is seen taken to service centre as per Ext. P3. Submission by the complainant is that still the said TV is with the service centre of opposite parties. Though LG service centre is not made a party in this complaint, opposite parties 1 & 2 in their version admitted that the TV in dispute is still with the Authorised Service Centre. Since the defects were not rectified by the service centre of opposite parties, complainant sent a letter dated 09..10..2001 to 2nd opposite party explaining the whole position. Ext. P4 is the copy of the said letter wherein complainant has requested the 2nd opposite party to replace the picture tube of the said TV free of cost. Ext. P5 is the reply to Ext.P4 issued by the 2nd opposite party to the complainant. As per Ext. P5 it is replied that since warranty period is over, opposite parties are not in a position to entertain the claim for replacement of picture tube, but offered the complainant a discount of 30% on the new picture tube as a special case. The contention of 1st and 2nd opposite parties' in their joint version, denied the pleading in the complaint regarding the inherent manufacturing defect of the TV. To them, any inherent defect observed will be tackled with at the production plant itself. Opposite parties 1 & 2 submitted that there was no manufacturing defect to the said TV, which would be evident from the fact that the said TV was handed over to the service centre after a period of one year after the warranty period. 3rd opposite party, in his version stated that they had no knowledge of manufacturing defect to the said TV, and 3rd opposite party had not received any notice or information regarding the same. Ext.P6 is the original of the returned advocate notice with endorsement 'closed down' and acknowledgment card sent to the 3rd opposite party. A perusal of the postal receipt affixed on it would show that the said notice was sent on 17..12..2001.<br /> <br /> 6. This Forum appointed an expert commission to inspect the said TV set and commission report was filed on 29th day of October 2003, which was marked as Ext.C1. It has been reported by the Commissioner that he has issued notices to parties to the litigation as well as to the service centre of L.G Electronics. The notices were seen sent by Regd. Post as well as by speed post. In the said notices he had stated the date and place of examination as 17..10..2003 at 10 A.M at L.G Service Centre, TC 25/2829, Mathrubhumi Road, Vanchiyoor. It has been reported by the commissioner that the complainant, the representative of the 4th opposite party and the Manager/Service in charge of the L.G, Authorised Service centre were present at 10 A.M on 17..10..2003. It is pertinent to be noted that there are three opposite parties only in the complaint. As per Mahazar filed along with CR, 3rd opposite party's representative Murugan, L.G. Service centre representative Babu and complainant are seen signed in the Mahazar. It is reported by the Commissioner that the said TV was not made available till 11.30 A.M on 17..10..2003. On enquiry about the reason for not producing the said TV for inspection no proper explanation was furnished by the personnel at the service centre. Complainant had filed an affidavit regarding the commission report stating that the said TV could not be inspected as the TV purposefully not produced by the opposite parties 1 & 2 to avoid the inspection of the TV set by the Commissioner. Opposite parties 1 & 2 did not file any objection to CR, but filed a memo stating that the representatives of opposite parties 1 & 2 were present at the spot of inspection on 17..10..2003 from 9.45 A.M to 10.15 A.M while the commissioner did not turn up for inspection. In the absence of any objection to CR from the side of opposite parties, we have no hesitation to accept the Ext.C1 report. In this connection complainant made reliance on the decision of the Hon'ble Supreme Court reported in 1999 CTJ 313 (Supreme Court(CP) wherein the Hon'ble Supreme Court held that the material on record shows that the complainant had given the tyre and the tube which had burst to the dealer, who in turn sent to the appellant. The procedure prescribed under section 13(1)(c) of the Act, was, therefore, not cable of being followed because the complainant was not in possession of the tyre and the tube. There is no material to show that the appellant had returned the tube to the opposite party. That being factual matrix, no fault can be found with the District Forum, the State Commission or National Commission in the matter of not following the procedure under Section 13(1)(c) of the Act. Complainant also made reliance on the decision of the Supreme Court reported in AIR 1968 Supreme Court 1413, wherein it was held that a party in possession of best evidence which would throw light on the issue in controversy withholding it – court ought to draw an adverse inference against him notwithstanding that onus of proof does not lie on him. Further, at this juncture it would be proper to follow the decision in Appeal 31/99 and 419/99 of the Hon'ble State Commission, Kerala dated 25..08..2000, wherein the fact that there was engine block and if had to be opened and attended is not disputed; the cause of the same, whether there was due to any manufacturing defect or some other reasons is withheld from the expert by like the Professor of Mechanical Engineering by not revealing details of repair, the same would lead to the inference that the blocking of the engine was due to manufacturing defect. Hon'ble State Commission observed that it is no excuse to say that now the vehicle is running condition. An inherent latent manufacturing defect can surface at any time and destroy utility and life of the engine, the customer cannot be required to take risk after paying consideration for the vehicle. In this case it was obligatory for the opposite parties or the service centre at least to produce said TV or other material and demonstrates as to what was the nature of the work carried out. The complainant is entitled to take advantage of the aforesaid conduct of opposite parties. When the commissioner was there to execute the order of this Forum he acts on behalf of this Forum, non-production of the said TV for inspection before the commissioner necessarily should provoke an adverse inference against opposite parties and the adverse inference is, had the required TV was produced before the commissioner, the same would have gone against the opposite parties, in other words the said action would have supported the complainant's case. The first point thus is found in favour of complainant. Though opposite parties filed proof affidavit, many a time the case was posted for cross examination of 2nd opposite party but 2nd opposite party was not present for cross examination by the complainant, while the complainant has been cross examined by the opposite parties. Submission by the complainant is that the proof affidavit of opposite parties is liable to be discarded and hence it has to be proceeded as if no evidence was adduced by the opposite parties. Opposite parties main contention was that since the complaint was lodged after the expiry of the warranty period the same is not maintainable. Submission by the complainant is that the TV set in dispute was not produced before the commissioner purposely to avoid inspection. The provision of Consumer Protection Act have so much wide ramifications against a person who provide service against consideration. If he commits any fault, shortcoming or deficiency is bound to compensate the consumers as to the loss or injury suffered by him. Here is a case where the TV in dispute was taken for repairs on 16..08..2001 by the authorised service centre of the opposite parties from the complainant who purchased the same for Rs. 19,300/- from the 3rd opposite party on 01..08..1999 by exchanging his Teltronics TV which was giving satisfactory performance, not returned the said TV after repairs to the complainant even after a lapse of 7 years, nor produced the said TV before the commissioner for inspection appointed by this Forum. There cannot be a worse practice than this. Deficiency in service is proved. No purpose will be served if direction is given to opposite parties to return the said TV to the complainant after a lapse of 7 years. In view of what had been observed above, we are of the considered opinion that it is just and fair to direct the opposite parties to refund the purchase price of TV to the complainant.<br /> <br /> <br /> In the result complaint is allowed, opposite parties shall jointly and severally pay the complainant a sum of Rs.19,300/- (Rupees Nineteen thousand three hundred only). The opposite parties shall also pay the complainant an amount of Rs. 5,000/- (Rupees Five thousand only) towards compensation and Rs. 2,500/- (Rupees Two thousand five hundred only) as cost of the complaint. The said amounts shall carry interest at the rate of 12% if not paid within two months from the date of this order.<br /> <br /> 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.<br /> <br /> Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 30th day of July, 2008.<br /> <br /> <br /> G. SIVAPRASAD,<br /> PRESIDENT.<br /> BEENA KUMARI. A : MEMBER<br /> S.K. SREELA : MEMBER <br /> ad.<br /> OP.No.95/2002 <br /> APPENDIX<br /> I.Complainant's witness:<br /> <br /> PW1 : K.G. Thomas<br /> <br /> II.Complainant's documents:<br /> P1 : Photocopy of the bill No.10366 issued to the complainant by the 3rd opposite party.<br /> P2 : Photocopy of the warranty card.<br /> P3 : Photocopy of service call sheet of model No.CF-21612 E and Sl.No.C16-90712 22087.<br /> P4 : Photocopy of letter dated 09..10..2001 issued by the complainant to the opposite parties.<br /> P5 : Photocopy of letter dated 25..12..2001 issued by the 2nd opposite party.<br /> P6 : Original of the letter dated 25..12..2001 issued by the 2nd opposite party.<br /> P7 : Original of the bill No.10366 issued by the 3rd opposite party to the complainant for Rs.19,300/-.<br /> P8 : Original of the service call sheet of Model No.CF 21612 E and Sl.No.C-16- 9071222087 dated 16..08..2001.<br /> <br /> <br /> III.Opposite parties' witness: NIL<br /> <br /> IV.Opposite parties' documents: NIL<br /> <br /> <br /> V.Court Exhibit:<br /> <br /> Ext.C1 : Commission Report.<br /> <br /> <br /> <br /> <br /> <br /> PRESIDENT<br />