// JUDGMENT //

            1.  The complainant has filed this complaint u/sec. 12 of the Consumer Protection Act – 1986 against the OP alleging deficiency in service in not repairing the TV or replace the TV by the OP.  Hence prays for the compensation to the value of TV amount of Rs.12,400/- or replace the said TV along with Rs.1,00,000/- for mental torture, agony and miscellaneous charges and Rs.2,000/- cost of legal notice.

            2.  Brief averments of the Complaint are as under;

            That the complainant has purchased Sony LED CLV – 22 P402B television worth ofRs.12,400 on 20-10-2014 from the respondent No.1 shop situated at Koppal.  After purchase the respondent No.1 shop has issued bill in receipt No. 34510 on dated: 20-10-2014 and the said TV has one year warranty from the date of purchase.

            The complainant further alleged that later on the said TV was not working properly and immediately thereafter the complainant has informed this fact to OP No.1 shop and respondent No.1 has told to wait for some days and later on my client has waited for some days but the said problem was continued and accordingly the complainant approached the respondent No.1 and narrated the problem of said TV and requested him to repair the same or replace the same.  Accordingly, the respondent No.1 has sent the said TV for repair to OP No.2 as OP No.2 is an authorized service centre of the Sony company but till today the OP No.2 has not replaced the TV nor repaired the same and since more than 20 days and the said TV is under the custody of OP No.2.

            The complainant further alleged that as a matter of fact, the said TV has one year warranty and both the respondents are liable to get it repaired if got any problem within one year from the date of purchase.  But the respondent No. 1and 2 has falsely stated that LED panel is physically damaged.  But the said panel has not physically damaged and there is not even a single scratch on the panel of the said TV.  But with a view to suppress the deficiency of service on the part of the respondent and to avoid liability, the OP No.2 has falsely stated that the LED panel is physically damaged.  The complainant further alleged that he has issued a legal notice on 30-03-2015 to respondents calling upon them to make repair of the Sony TV purchased.  The said notice is served on respondents on 31-03-2015.  The respondents have not given any reply notice nor complied.  Hence prays for direction to OP to repair of the said TV or to replace the said TV and to provide new TV and Rs.1,00,000/- compensation towards mental torture to the complainant Rs.2,000/- towards costs of legal notice as prayed above.

            3.  The Forum after admitting the complaint, the notice was issued to the opponents and the opponents appeared before the Forum along with their counsels and filed vakalt and written version to the main petition.  The complainant further filed an IA No.I under O 1 R 10(2) R/w sec. 151 CPC to implead OP No.3.  The said IA was allowed to implead OPNo.3.  After the amendment OP No.3 was impleaded and a notice was issued by the Forum and the said notice is served upon the opponent No.3.  The OP No.3 has failed to appear before the Forum on the date of appearance and hence he was placed as Exparte.

            4.  The objections of the opponents are as under;

            Respondent No :- 1.

            That the respondent No.1 stated that it is true that a LED TV was purchased by the complainant and denied the other facts of the complainant in toto.  It is false to say before the Consumer Forum that after purchasing the Sony LED TV, the said TV had lots of defects in it and it is not working in proper condition and they have claimed Rs.1,14,400/-.  It is not satisfiable/justifiable by the complainant to allege.

            The reasons for this are;

            That the complainant has not come before the Consumer Forum with clear hands.  The complainant has told that the said TV has defect and this has to be proved by the complainant and for this he has not given or taken expert evidence regarding the defect of the said TV.  If at all there is any defect while purchasing the TV, the Sony LED TV company will be responsible for it and the said manufacturer has not been made as party in this.

            The respondent No.1 further contended that he has not mentioned any where in his complaint that when there was repair in the said Sony LED TV, it was informed to him and then he himself has sent it to the Sony Service Center to get it repaired.  The respondent No.1 further contended that the said Sony LED TV will get it repaired after paying the damage charges and for this the complainant delivered it.  Even now the Sony LED TV is in the center itself and they are ready to get it repaired if the damage charge is paid.

The respondent No.1 further contended that the complainant has averred that the said Sony LED TV was given with defects to him.  But the complainant has not taken any efforts to keep it and use it safely.  So due to this reason, it has to be dismissed with cost.

            The respondent No.1 further stated that the OP No.1 is only the seller not the authorized agent and in the bill of our shop these conditions are mentioned below;

1.    ಉಪಕರಣಗಳನ್ನು ಉತ್ಪಾದಕರ ವಾರಂಟಿ ಮೇರೆಗೆ ಮಾರಲಾಗಿದೆ.
2.    ಮಾರಾಟ ನಂತರ ಸೇವೆ ಉತ್ಪಾದಕರ ಜವಾಬ್ದಾರಿ.
3.    ಮಾರಾಟ ನಂತರ ಉಪಕರಣಗಳ ವಾಪಸಿ ಅಥವಾ ವಿನಿಮಯ ಲಭ್ಯವಿಲ್ಲ.​

The respondent No.1 further averred that in reality the complainant has damaged it after it was fallen on the ground.  The complainant has filed a false case against him in order to harrash him.  The respondent No.1 is only the seller.  Hence prays for the dismissal of the case with fee of Rs.10,000/-.

5.  The objections of Respondent No.2.

 The OP No.2 submitted that, at the outset, each and every averment statement, allegations and connection made by the complainant which is contrary and inconsistent to what has been stated in the reply herein is denied by the answering opposite parties and no allegation, statement and contention contained in the present complaint should be deemed admitted, save and except those specifically admitted to be true and correct.  It is respectfully submitted that this be treated as specific denial of the complaint.

Preliminary Objections and Reply

The OP No.2 further submitted that, the present complaint is vexatious, baseless and is more of an abuse of the due process of law.  It has been made to injure the interest and reputation of the Answering opposite parties and therefore the same is liable to be dismissed.

The OP No.2 further submitted that, Sony India Pvt.ltd., is engaged in the business of distributing and marketing of LCD and LED Televisions and other electronic goods under the brand name of ‘SONY’ and it holds an impeccable position in the Television industry in India.  It is submitted that the Televisions of Sony India Pvt. Ltd., are sold to customers through a network of its authorized dealers and the after sales services on those Televisions are provided through a network of its authorized service centers across the Country.

The OP No.2 further submitted that, the liability of the Answering opposite parties lies strictly in accordance with the terms and conditions of the warranty provided by it on its products and the Answering Opposite Parties cannot be held liable for claims falling outside the scope of the warranty.  Clause 3 of the terms of warranty provided by Sony India Pvt.Ltd., to the complainant clearly states the following;

“This warranty does not cover any failure of the product due to normal wear and tear, or due to misuse, including but not limited to use in other than the normal and customary manner, in accordance with the instructions for use and maintenance of the product.  Nor does this warranty cover any failure of the Product due to accident, modification or adjustment, acts of God or damage resulting from liquid.”

The terms of the warranty therefore are clearly not applicable in cases where the product has been damaged by the Complainant due to activities such as damage caused by external impact or any other cause which is beyond the control of the Answering opposite parties.

The OP No.2 further submitted that, as per the records of the company, the Complainant purchased a Sony Bravia Television bearing Model No. KLV-22P402B (hereinafter referred to as “TV set”) on 20.10.2014 from the opposite party No.1.

The OP No.2 further submitted that, in the present case, the complainant approached the authorized service centre of Sony India Pvt.Ltd., i.e. opposite party No.2 for the first time on 23.03.2015 that is, after five months from the date of purchase of the said TV set with the problem of broken LCD panel.  Upon physical inspection of the subject TV set by the service engineer of the Opposite Party No.2, it was found that TV set was damaged by external factor.

The OP No.2 further submitted that, the panel of the said TV set was broken due to external damage resulting from mishandling, lack of care, etc.,  It is further submitted that as per the Terms of the Warranty, physical damage of the subject TV set is not covered in the Warranty Terms and Conditions.  Therefore, the complainant was informed that the subject TV set could not be repaired free of cost under the Terms of the Warranty and that the repairs in such cases are carried out on a chargeable basis.

The OP No.2 further submitted that, upon inspection by the Service engineer, an estimate of Rs.4,188/- was provided to the complainant, which was never approved by the Complainant.

The OP No.2 further submitted that, it is pertinent to mention that the complainant has leveled false allegations that the subject TV set suffers from a manufacturing defect.  It is humbly submitted that the Complainant has admittedly used the subject TV set for a period of five months without any problem whatsoever, and even after that, the problem that has arisen is on account of external factors and not due to any manufacturing defect as alleged.  Furthermore, had it been the case that the subject TV set was suffering from a manufacturing defect, it would not have functioned even for a single day, let alone for one month.  Therefore, it is clear that the Complainant is making false and baseless allegations against the Answering Opposite Parties only to make wrongful gains there from.

The OP No.2 further submitted that, the present complaint has been filed without cause and is an attempt to malign the well established reputation of Sony India Pvt. Ltd., and to make wrongful monetary gains there from.  It is submitted that the complainant is not entitled to any relief as claimed by way of the present complaint.

            Hence prays for dismissal of the complaint.

6.   On the basis of above pleadings the following points have been framed;

POINTS

1.  Whether the complainant proves that there is unfair trade practice and deficiency in service in not repairing or replacing the defective Sony LED TV to him?

2. Whether the respondents prove that the said Sony LED TV was broken due to external damage?

3. Whether the complainant is entitled for the relief sought for?
4. What order?

7.  Our finding

Point No. 1 :   Affirmative

Point No. 2 :   Negative

                  Point No. 3 :  Affirmative

      Point No. 4 : As per final Order for the following

REASONS

8.  POINT No. 1:  

            On perusal of the pleadings, evidence coupled with the documents of respective parties on record, there is no dispute that a Sony LED TV was purchased between the complainant and the respondents.  As per bill produced by the complainant with respect to Ex.A.3, the VAT Invoice Bill given by the R-1 clearly state that a Sony LED with model KLV-22P402B B064069 is purchased and amount of Rs.12,400/- is mentioned.  After perusing the Bill, it is crystal clear that few instructions are written on the bill.  The same has been deposed by the respondent No.1 in support of his case in his examination in chief that he is only dealer of the product and not any authorized agent.   Further the arguments advanced by the counsel for the respondent No.1 that he is only the dealer and after mentioning the instructions below in the bill the liability of deficiency in service is not applicable to him in that context, the counsel of respondent No.1 has relied the citation reported in (2011) CPJ 236 (NC) TELCO V/s HRDIP SINGH AND ANR.,

“Consumer Protection Act, 1986 -  Section 2(1)(g), 21(b) – motor vehicles Manufacturing defect – Complaint not maintainable – District Forum allowed complaint – State Commission dismissed appeal – hence revision – onus to prove manufacturing defect on Complaint Defective parts Complainant signed satisfaction note, not entitled to claim Compensation – Orders of fora  below set aside.”

            The facts and circumstances of the case in hand and the facts and circumstances of the said citation are all together different because with respect to the defective parts complainant signed satisfaction note, not entitled to claim compensation.  Here the complainant has not signed any satisfaction note but it is in the bill they have mentioned the instructions and it is duly signed by the respondent No.1 but not by the complainant. 

So, when the complainant has not at all signed the satisfaction note, the instructions are noway helpful to the respondent No.1.  Hence the said citations is not applicable to the case in hand.

            Further during the course of arguments advanced by the counsel for the respondent No.1, that the OP No.1 is only the dealer not an authorized agent and he has already given few instructions in the bill and he shall not be liable for any deficiency in service. 

            The ruling which is passed by Hon’ble Madhya Pradesh State Consumer Disputes Redressal Commission, Bhupal in 2009 (1) CPR 306, where it has clearly mentioned that -

“Consumer Protection Act 1986 Section 2(f), 14, 15 – Defective mobile set – Appellant dealer and respondents manufacturer jointly and severally liable to replace – Before receiving new set respondent to deposit old set with respondents.”

            After going through the citation, it is well versed that the dealer and the manufacturer are jointly and severally liable to replace or pay money back.

            The complainant in his examination in chief has averred that when the TV was not working properly he immediately informed the OP No.1 and after the advice of the Respondent No.1 that to wait for some days, the complainant waited for few days.  But the problem continued to him, then the complainant after approaching OP No.1 narrated the problem of the said TV and requested him to repair the same or replace the same.  Accordingly the respondent No.1 has sent the said TV for repair to respondent No.2, the authorized service center of the Sony Company.  On the perusal of the Chief Examination of
DW-2, it is admitted that there was a damage and the Service Engineer of the Company had estimated the damage cost upto Rs.4,188/- only.  The document, i.e., Ex.A.4 clearly shows the Estimate of the TV.  Inspite of getting it repaired when it was within the warranty period, the OP No.2 contended that it was broken due to external damage from mishandling, lack of care, so the warranty cannot come into force.

            The complainant alleged that inspite of several requests made by him, the OPs’ did not repair the TV nor replaced the TV which comes within warranty period.  So, the complainant has issued a legal notice to the OPs’, i.e. Ex.A1 and Ex.A.2 clearly reveals that a legal notice is issued to the OPs’ and the contents of the notice clearly speaks that the said TV was not repaired or replaced by the OPs’.  Ex.A.2 is the receipt and acknowledgment of Postal Department and which clearly reveals that notice is served on OPs'.  After receiving the legal notice issued by the complainant, the OPs’ did not reply to the notice nor they repaired the TV nor replace to him.  From this, it is clear that the OPs’ have knowledge regarding the damage of the TV and it was within the warranty period.  Therefore, it can be presumed that the opponents have not repaired the TV nor replaced the TV to the complainant, which was within its warranty period and therefore it is clear that definitely there is a deficiency in service on the part of the OPs’ in not replacing or repairing the said TV.

            The respondent No.1 counsel has relied upon the following rulings;

1.  I (2011) C.P.R. 281 (NC) – Suresh V/s MRF
2. III (2007) CPJ 59 (KER) – Mohammed V/s Mohan Nair & another.

We have gone through the same, the rulings laid down the position of law but they are not applicable to the facts of this case.

Hence, in the light of above observations, we constrained to hold issue No.1 in Affirmative.

POINT NO.2:-

9.  Further the respondent No.1 and 2 have submitted and deposed that the said Sony LED TV was physically damaged external by falling on the ground but not the manufacturers defect.  The respondent No.2 has also deposed that upon physical inspection of the subject TV set by the service engineer of the OP No.2 has averred that the said TV was damaged by external factor.  As per Ex.A-5 to Ex.A.10 produced by the complainant that is the photographs of the TV which is in custody of respondent No.2, it has been clearly shown that there are no damages on the set of TV neither a scratch mark or any damage on both the sides of the TV, there is front portion and the back portion.  As per the contention of the R-1 and R-2, that it was external damaged and said TV was fallen on the ground there must be some mark or damage to the TV.  Even the screen of the TV is also in good condition and if at all it was fallen on the ground, the screen should have been damaged or any part of the TV would have been damaged.  But on perusal of the Ex.A.5 to Ex.A.10, it is crystal clear that no external damages is caused to the TV.  But to disprove the said damage the respondents have not produced any other cogent and corroborative evidence except putting suggestions to that.

10.  Further, with respect to manufacturing defect that has to be proved by the expert evidence.  Here the complainant has never told or mentioned regarding any manufacturing defect.  It was the respondent No.2 who has deposed that it was damaged by external  falling and was told by the service engineer of the OP-2.  The respondents have not produced any of the documents to prove that the TV was damaged by external factor.  The respondent No.1 has clearly admitted in his written statement and evidence that if any defect in the television is appeared it is the manufacturing company is liable for the said defect and in the evidence of R2, it is admitted that if the product is misused, normal wear and tear and not using in normal and custody manner, the warranty does not cover on the contrary as per the documents Ex.A.5 to Ex.A.10 produced by the complainant pertains that no external damage can be seen on TV set.  Therefore, the TV set snaps and photos clearly says that there is no damage in the external part of the Sony LED TV and it prevail over the version of RW2 to the extent of the damage.

11.  Therefore, the respondents have failed to prove the external damage which is caused by falling on the ground.  On the contrary, as per the oral evidence coupled with the documentary evidence, the complainant has to prove that the said Sony LED TV was not damaged externally and the said fact has been clearly disclosed in Ex.A.5 to Ex.A.10.  Regarding warranty, there is no dispute between the complainant and the respondents. 

Hence, in the light of the above observations, we constrained to hold issue No.2 in Negative.

            POINT NO. 3 :  In the light of observations made by us on point No. 1 and 2, since the complainant has filed this for deficiency in service with respect to the Sony LED TV.  In the light of observations made by us while answering the issue No.1 in affirmative and 2 in negative, the present complainant is entitled for the relief as prayed for.  We constrained to hold issue No.3 in the affirmative.

POINT No. 4 :- Hence, in the result, we proceed to pass the following;

ORDER

1.  The complaint is partly allowed.

2.  OPs are directed to replace TV or pay the amount of TV of Rs.12,400/- (Rupees twelve thousand four hundred only) and also directed to pay Rs.5,000/- (Rupees five thousand only) for mental torture and miscellaneous charges to the complainant within one month from the date of receipt of this order.  Failing which 9% p.a. interest will be charged until realization.

3. Send the free copies of this order to both parties.

Dictated to the Stenographer, transcribed, typed by her, typescript, corrected by me and then pronounced in the Open Forum on 14^th day of December 2015.

// ANNEXURE //

List of Documents Exhibited for the Complainant.

Witnesses examined for the Complainant / Respondent.