Hon’ble Mrs. Rumpa Mandal, Member.
The brief fact of the case:-
The grievance of the Complainant which gave raise to this case can be summarised to the extent that the Complainant Debasish Biswas purchased a Sansui 40” LED T.V. vide Model No. LED TVS JX40HB 21CAF SR. No.110416110286509499 dated 07.06.16 from the OP the Proprietor of Radio & T.V. Corporation main road Dinhata being the O.P. No.1 for Rs.26,500/- against a cash memo with warranty card(Annexure-A). There was three years warranty from the date of purchase (Annexure-B). It was noticed subsequently that since February, 2018 the new LED T.V. picture was not clear as some black spots was visible in the side of the T.V. The Complainant informed the same to the OP on 06.02.18 and the OP assured that within short period that would be repaired by a technician in the house of the OP but nobody came to repair the same. Subsequently, the Complainant sent a written complaint through toll free number to O.P. No.2 being the customer care Officer, M/S Take Care India Pvt. Ltd. Sansui Orangabad being the O.P. No.2. Thereafter, O.P. No.2 sent two reply massages one 10.04.18 with response code number R37805 and 370300. The O.P. No.2 also sent one service provider namely Basudev. Despite all those steps the said defect in the T.V. did not cure till now. Copy of the massage dated 10.04.18 marked as (Annexure-C). Subsequently, the Complainant sent a written complaint to the O.P. No.1 on 06.05.19 through registered post. But he did not provide any service till now. Copy of the letter dated 06.05.19 is treated as (Annexure-D). Lastly on 18.05.19 the Complainant also lodged a complaint to the O.P. No.2 through email. But he also did not reply to the same (email dated 18.05.19 is marked as (Annexure-E). Thus, the activities of the O.Ps are illegal and unfair trade practice and amounts to deficiency in service. Due to the said defect of T.V. picture, the Complainant suffered mental pain and agony. The cause of action for the present case arose on 07.06.16, 06.02.18 and 10.04.18 and on subsequent dates. The Complainant therefore, prayed for refund of the total amount of T.V. of Rs.26,500/-, Rs.30,000/- for mental pain and agony and deficiency in service and Rs.10,000/- as litigation cost. The O.P. No.2 preferred not to contest the case and as such the case was heard ex-parte against him.
The O.P. No.1 denied each and every allegation of the Complainant by filing written version against the written complaint of the Complainant. The positive defence case of the O.P. No.1 M/S Radio and T.V Corporation in brief is that the O.P. No.1 is the proprietor of the Radio & T.V Corporation and deals in selling T.V., LCD, Refrigerator, electronic items of various companies as per demand of the market. Accordingly he sold the T.V. to the Complainant for Rs.26,500/- and also provided the warranty card and tax invoice. The OP had no authority to say anything regarding the warranty save and except as provided by the Sansui T.V. Company. On 03.10.18 the Complainant lodged a Complainant to the OP for defect in the T.V. for which the OP registered a complaint against which the Complaint received the response from the service centre of O.P. No.2 on 08.10.18. But the Complainant did not inform to the O.P. No.1. The Complainant also stated that the Sansui brand was under licence for Videocon for 17 years but subsequently the said licence was not renewed further prior to the purchase of the T.V. the Complainant was well aware that the O.P. No.1 is not the authorised dealer of the Sansui nor is he the authorised Service Centre of O.P. No.2. The O.P. No.1 just purchased the set Sansui 40” LED T.V. as per the choice of the Complainant from the KAIL LTD, Siliguri on 03.06.16 and sold it to the Complainant on 07.06.16. So there was no unfair trade practice or deficiency in service. However, the following points should be taken in to consideration by this Commission:-
- Customer can take the product to the nearest authorised Service Centre for repair.,
- Extended warranty is applicable if the purchase is in between 01.04.15 to 30.11.15.,
- All disputes relating to this order be settled through arbitrator appointed by KAIL LTD.
The Complainant therefore prayed for dismissal of the written complaint.
The factual conflicts between the parties led this Commission to ascertain the following points for consideration.
POINTS FOR DETERMINATION
- Whether the Complainant is a consumer under C.P. Act?
- Whether the Complainant had reasoned to take the product to the authorised Service Centre for repair?
- Whether the extended warranty gives any relief to the Complainant?
- Whether the dispute ought to have been settled before the arbitrator?
- Whether there is any deficiency in service to the Complainant?
- Whether the Complainant is entitled get the relief prayed for?
- To what other relief is any the Complainant is entitled?
DECISION WITH REASONS
Point No.1.
None of the O.Ps denied the status of the Complainant under the C.P. Act. However after going through the pleadings of the parties and the evidence in the case record this Commission is of the view that the Complainant is a consumer under the C.P. Act.
Accordingly point No.1 is decided infavour of the Complainant.
Point No. 2,3 & 4.
All these points are interlinked with each other. Accordingly all these points are taken up together for convenience and brevity.
The O.P. No.1 took the plea of extended warranty but the said warranty relates to the O.P. No.2 Company and the said O.P. No.2 preferred not to contest the case and as such there is no defence relating to the extended warranty period. However, the document shows that the Complainant purchased the said T.V. with proper cash memo alogwith warranty card on 07.06.16 from O.P. No.1. In the said warranty card being (Annexure-B ) the warranty period consist of 1+2 years warranty. But in the said warranty card no condition seems to have been imposed.
We further find that the date of purchase and the date of the T.V. became defective are well within the warranty period. So the defence plea that the extended warranty is not applicable here is not maintainable.
Accordingly issue No.2 goes is favour of the Complainant.
So far as the defence plea regarding the settlement of dispute before the arbitrator is concerned, no document is filed by anybody to establish that the dispute should be settled before the sole arbitrator. That apart the protection given to a Consumer under the C.P. Act,2019 cannot be taken away or contracted out.
Accordingly issue No.4 is decided positively on behalf of the Complainant.
Point No.5,6 & 7.
There is close nexus among the aforesaid points and as such the same demand for discussion together. Previously we have ascertained that the Complainant is a consumer under the C.P. Act. It is the admitted fact that the Complainant purchased the impugned T.V. from the O.P. No.1 produced by O.P. No.2. W/V filed by the O.P. No.1 clearly admitted the impugned purchase of T.V. by the Complainant from the O.P. No.1 and its subsequent defect and lodging complaint against the said defect.
The evidence on record further reveals that the service provider acted subsequently to repair the T.V. on the basis of the call lock by the O.P. No.1.
Ld. Defence Counsel argued that O.P. No.1 performed his duties like doing call book and lodging complaint although he is not the authorised dealer.
The argument does not reduce the accountability of the O.P. No.1 in as much as main transaction relating to the impugned purchase and subsequent becoming defective of the T.V. took place through the O.P. No.1 only. In fact the O.P. No.2 seems to have direct or indirect control over the post defect steps of the impugned service. The service provider acted on the basis of the call book lock of the O.P. No.1.
Therefore the liability and accountability cannot be separated between O.P. No.1 & 2.
The Ld. Defence Counsel further argued that the entire liability, if any goes to the authorised dealer of Videocon which is now KAIL Ltd.
The argument does not hold good because of the fact that Annexure-4 is the invoice receipt/ purchase receipt wherein the description of the impugned T.V. was supplied by O.P. No.2 company to the O.P. No.1 company on 06.06.2016 which was subsequently sold to Complainant.
The O.P. No.1 sold the said T.V. to the Complainant for a sum of Rs.26,500/- on some Commission. Thus the status of the O.P. No.1 in the eye of Law is not less than an agent of O.P. No.2 principal. The agent cannot escape the liability of the principal. Therefore the O. P. No.1 & 2 are jointly and or severally liable to the Complainant.
The Ld. Advocate for the O.P. No.1 duly drew the attention of the Court through Annexure-3 wherein the license of Videocon was discontinued after 17 years and the Sansui brand did not want to renew the license.
The said document does not help either of the O.Ps in as much as the said fact was not disclosed to the Complainant purchaser and the Videocon brand was still being sold on the impugned date of purchase.
That apart the said legal imbroglio relates to the Videocon Company and the Sansui Company. This point of defence ought to have been taken by the O.P. No.2 Company who did not contest. Instead the O.P. NO.1 advocated that point to protect the interest of O.P. No.2 Company. But ultimately O.P. No.1 did some monetary gain from the impugned transaction of sale of Videocon T.V. as an Agent of the principal O.P. No.2 Company. So, the aforesaid factual aspects drives the Commission to form an opinion that the responsibility of O.P. No.1 & 2 against the impugned transaction is inseparable.
In the back drop of the aforesaid discussion and observation made therein, the Commission comes to the definite finding that there is deficiency in service to the Complainant in regard to the impugned transaction of purchase and subsequent service thereto by the O.Ps. The given facts and circumstances vis-a-vis the appreciation of evidence analysed herein above leaves no room to come to any different finding than to hold that the Complainant is entitled to get the relief prayed for.
Thus, points No. 5,6 & 7 are answered on behalf of the Complainant.
Consequently the Complaint case succeeds on contest.
Hence, it is
Ordered
That the Complaint Case No. CC/82/2019 be and the same is allowed on contest with cost of Rs.1,000/-. The Complainant is entitled to get an award for a sum of Rs. 26,500/- towards the cost of the defect in the T.V. set and Rs.10,000/- towards mental pain and agony. The O.P. No.1, 2 &3 are jointly and/or severally liable to pay the said money to the Complainant within one month from the date of passing the order failing which the awarded sum shall carry an interest of 6% per annum from the date of passing the order till the date of realisation. The O.P. No.1 shall pay the said sum of Rs.37,500/-(Rs.26,500/-+10,000+1000) to the Complainant within one month from the date of passing the order and the O.P. No.3 will refund the said sum of Rs.37,500/- to the O.P. No.1 within one month from the date of passing the order. The O.P. No.1 shall be entitled to recover the said sum of Rs.37,500/- from the O.P. No.3 Company, if he (O.P. No.3) fails to reimburse the awarded money of Rs.37,500/- to the O.P. No.1 by executing the present final order. The Complainant shall return the said T.V. set to the O.P. No.1 at the time of payment of the awarded money by the O.P. No.1 which the O.P shall thereafter return to the O.P. No.3 Company.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
The copy of the Final Order is also available in the official Website www.confonet.nic.in.
Dictated and corrected by me.
