Tamil Nadu

South Chennai

505/2008

Kamlesh Dhavele - Complainant(s)

Versus

The Propreitor, M/s. S.C.Shah & Co Ltd - Opp.Party(s)

j.Subramaniam

20 Jun 2017

ORDER

                                                                        Date of Filing :   16.12.2008

                                                                        Date of Order :   20.06.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

PRESENT: THIRU. M.MONY, B.Sc., L.L.B. M.L.,                     : PRESIDENT            

                  TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

             DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

C.C.NO. 505/2008

TUESDAY THIS  20^TH   DAY OF JUNE 2017

Kamlesh Dhavele,
No.19/2, Jyotsna Alacriti,

Padmavathy Nagar,

Velachery,

Chennai 600 042.                                                .. Complainant

 

                                        ..Vs..

The Proprietor,

M/s. S.C. Shah & Co (P) Ltd.,

No.3, Officers Colony,

100 Feet Bypass Road,

Vijayanagar Extension,

Velachery, Chennai 42.                                       .. Opposite party.

 

 

Counsel for Complainant         :   M/s.  J. Subramaniam    

Counsel for opposite party      :   M/s.  Aiyar & Dolia

ORDER

THIRU. M. MONY, PRESIDENT

          This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act 1986 seeking direction to pay a sum of Rs.25,000/- towards loss of livelihood and also to pay a sum of Rs.50,000/- towards compensation for mental agony and also Rs.5,000/- towards cost of the complaint.

 

1. The averment of the complaint in brief are as follows:

         The complainant submit that he purchased a Samsung make Microwave Oven from the opposite party and paid the value of Rs.10,000/- on 25.10.2008.   The complainant also submit that at the time of sale of the above goods the opposite party have promised to send their Service Engineer to the complainant’s place for demonstration within 24 hours of purchase, w.e.f.  the time of purchase made.    Relying on their assurance, the complainant purchased the Microwave Oven and waited for the opposite party agent / representative to attend and demonstrate to enable him to proceed with the course of cooking.

2.     The complainant further state that  after a lapse of the time frame, the opposite party have deliberately failed to keep up their promise and left the complainant to face vested hardship and chosen to remain silence.     Accordingly the complainant sent a lawyer notice dated 17.11.2008 to the opposite party but there was no response from the opposite party.      As such the act of the opposite parties clearly amounts to deficiency in service which caused mental agony and hardship to the complainant.  Hence the complaint is filed.

3. The brief averments in the Written Version of  the opposite party   are as follows:

          At the outset the opposite party denies all the averments and allegations in the complaint except those which are specifically admitted hereunder and put the complainant to strict proof of the same.   The opposite party submits that as admitted by the complainant, the Samsung Microwave Oven has been purchased by him for offering coaching to learners and thereby it is evident that the product purchased is used for commercial purpose.  Hence the complainant is not liable to maintain the present complaint.  The opposite party is only a dealer and the manufacturer is only Samsung Company.   The opposite party’s liability is very limited and there is no statutory obligation on the opposite party to sent his personnel to the complainant’s place for staging a demonstration.  Even then the opposite party had sent its staff to the complainant’s place as a sign of goodwill gesture, but at that point of time, the complainant was not available and the door was locked.   Whenever the opposite party was willing to help the complainant, the complainant would not respond properly and the complainant cannot treat the opposite party’s staff / personnel as if they are his paid servants.    As such there is no deficiency in service on the opposite party and therefore this complaint is liable to be dismissed.  

4.      In order to prove the averments of the complaint, the complainant had filed proof affidavit as his evidence and documents Ex.A1 to Ex.A3 marked.  Proof affidavit of opposite party  filed and no documents marked on the side of the opposite party and oral arguments let in.

    

5.   The point for the consideration is: 

 

1. Whether the complainant is entitled to a sum of Rs.25,000/- towards loss of livelihood as prayed for ?

 

2. Whether the complainant is entitled to a sum of Rs.50,000/- towards mental agony with cost of Rs.5,000/- as prayed for

 

6.   POINTS 1 & 2

 

Heard both sides.   Perused the records.   Admittedly the complainant purchased a Microwave Oven for a sum of Rs.10,000/- on 25.10.2008 as per Ex.A1.   It is a typical case,  in which whether the service provider or the manufacturer  liable to provide demo to use such electronic articles. Equally, whether the service provider or a manufacturer or a dealer should expend service to a Consumer in their premises.   The learned counsel for the complainant contended that the opposite party assured that due service demo can be provided immediately after the sale within 24 hours.   But it is apparently seen that no service extended to the complainant / consumer.  The contention of the opposite party is that, no such assurance given to the consumer at any point of time; is not acceptable because such electric / electronic goods cannot be operated by fresh purchasers.    Hence it is proved that the opposite party committed deficiency in service.   Further the learned counsel for the complainant contended that even after repeated requests and demands the opposite party has not provided any service much less demonstration for proper usage.  Hence the complainant was constrained to go to the showroom of the opposite party wherein the Microwave oven was purchased from the  complainant was chased out.  But the said averments has been totally denied by the opposite party. 

7.     Further the learned counsel for the complainant contended that the said Microwave oven was purchased for domestic purpose in order to demo to the Learners,  since the opposite party has not come forward to service demo the complainant was not able to use the said Microwave oven and kept idle.  The contention raised by the opposite party that demo to the learner amounts to commercial practice and the complaint itself is unsustainable; is against the settled principle of law.  The learned counsel for the opposite party cited a decision reported in

    II (1995) CPJ 1 (SC)

SUPREME COURT OF INDIA

LAXMI ENGINEERINGS WORKS

1.  

P.S.G. INDISTRIAL INSTITUTE

Held

We must hold ( in agreement with the National Commission), having regard to the nature and character of the machine and the material on record that it is not goods which the appellant purchased for use by himself exclusively for the purpose of earning his livelihood by means of self employment, as explained hereinabove. 

Held further : A person who buys goods and use them himself, exclusively for the purpose of earning his livelihood, by means of self- employment is within the definition of the expression “consumer”

The learned counsel for the complainant pleaded and contended that a sum of Rs.25,000/- may be awarded towards the loss of livelihood and a sum of Rs.50,000/- may be awarded as compensation for mental agony.  The learned counsel for the opposite party contended that the said claims are exorbitant and imaginary.   Considering the facts and circumstances of the case, this  Forum is of the considered view that the complainant is entitled to a sum of Rs.5,000/- towards loss of livelihood and compensation of Rs.15,000/- for mental agony and cost of Rs.5,000/-.   The points 1 & 2 are answered accordingly.  

        In the result, the complaint is  allowed in part.   The  opposite party is directed to pay a sum of Rs.5000/- (Rupees Five thousand only)  towards loss of livelihood and  compensation of Rs.15,000/- (Rupees Fifteen thousand only)  towards mental agony and also cost of Rs.5,000/- (Rupees Five thousand only) to the complainant.     

The above  amount shall be payable within six weeks from the date of receipt of the copy of the order, failing which, the said amounts shall carry interest at the rate of 9% p.a to till the date of payment.   

Dictated by the President to the Assistant, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the  20^th   day  of  June 2017.  

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainants” side documents:

Ex.A1- 25.10.2008       -  Copy of cash receipt

Ex.A2- 17.11.2008       - Copy of Legal notice.

Ex.A3-       -              - Copy of Ack. Card.

 

Opposite party’s side document: -   

.. Nil..

 

 

MEMBER-I                        MEMBER-II                             PRESIDENT.