IN THE KODAGU DISTRICT CONSUMER DISPUTES REDRESSAL FORUM MADIKERI

SRI. C.V. MARGOOR, PRESIDENT

O R D E R

1. This complaint has filed by Smt.Kalpana.C.T. W/o Thimmaiah.C.A. aged 40 years resident of Srimangala Village, Virajpet Taluk, Kodagu District  to direct the opposite parties to replace the Panasonic LED TV, pay Rs.10,000/- for mental agony and Rs.10,000/- cost of this proceedings. 
2. The opposite party No.1 is dealer of Panasonic TVs and opposite party No.2 is manufacturer.  The complainant has purchased new Panasonic LED TV on 18.10.2018 from the opposite party No.1 for a sum of Rs.20,200/-.  The complainant has paid down payment of Rs.5,000/- and availed financial assistance from the opposite party No.1 for the balance amount.  The complainant has agreed to pay monthly installments at Rs.1,900/- till clearance of the loan and issued post dated cheques towards the same.  The opposite party No.2 has issued warranty for one year for the said TV and opposite party No.1  has given additional extended warranty for another year. 
3. It is the case of complainant that on 02.01.2019 at about 3.30 PM when she and her son were watching programme all of a sudden a big sound heard from TV and automatically the television got shut-down.  The complainant has immediately informed to the opposite party No.1 but the later after lapse of three days sent a representative by name Zakulla.  The said representative after inspecting the television, told that it could not be repaired as it has some manufacturing defect and need to be replaced.  The complainant has approached the opposite party No.1 and sought for the replacement of television and also sent notice for replacement.  The opposite parties instead of replacing TV sent a notice that they will present cheques for payment of the loan and in case dishonoured they would initiate criminal action.  Hence this complaint.
4. The opposite party Nos.1 and 2 appeared through their learned counsels and filed separate written versions.  The opposite parties have not disputed purchase of LED TV manufactured by opposite party No.2 through the opposite party No.1 for Rs.20,200/- by making down-payment of Rs.5,000/- and pay the balance amount in EMIs.  Though the opposite parties have filed separate written statements but have taken similar defence that there was no manufacturing defect in the television purchased by complainant but due to mishandling its panel was damaged.  There is no warranty for mishandling of the television as such the complainant is not entitled for any reliefs since there is no deficiency in service on their part and asked to dismiss the complaint. 
5. The complainant filed her affidavit evidence and got marked exhibits P1 to P 13 documents.  On behalf of opposite parties, opposite party No.2 authorized representative Arjun Tanwar filed affidavit.   No affidavit evidence filed on behalf of opposite party No.1.
6. We have heard the oral arguments advanced by the learned counsel for the complainant and opposite parties in addition to written brief submitted by them and the points that would arise for determination are as under;

1. Whether the complainant proves that the LED Television sold by opposite party No.1 was defective?
2. Is complainant entitled to the relief sought for?

7. Our findings on the above points is as under;

• Point No.1:-In the Affirmative
• Point No.2:-In the partly Affirmative for the below;

R E A S O N S

8. Point No.1 and 2:- The learned counsel for the complainant submitted that the opposite parties to avoid their liability have come up with false accusation against the complainant that they have mishandled the television as a result it was not functioning.  The learned counsel for the opposite parties in the written arguments as well as oral submission made allegation against the complainant that they have physically assaulted the television as such panel was broken. 
9. The opposite parties have not disputed purchase of LED Panasonic TV on 18.10.2018 from the opposite party No.1 which manufactured by opposite party No.2.  It is admitted by both the parties that after receipt of complaint with regard to non-functioning of the television from the complainant they have got inspected the television.  It shows that after receipt of complaint the opposite parties have inspected the non-functioning of television of complainant.  There are two different versions on behalf of opposite parties with regard to testing the television of complainant after its non-functioning from 02.01.2019.  The opposite party No.1 in paragraph 3 of the written version stated that a representative of Panasonic company i.e. opposite party No.2 has visited the complainant, he found that the TV was totally damaged hence, the representative has suggested that it was not having any manufacturing defect nor it has technical problem.  The same was mishandled and cannot come under the purview of warranty.  The opposite party No.2 manufacturer has repeatedly in version, affidavit of authorized representative and written arguments contended that the complainant raised its complaint through customer care centre on 11.01.2019 vide job number R 1110119638524.  That thereafter respondent No.1 had took the product for the inspection and after the inspection respondent had come to know that the unit was physically damaged and panel was broken.  That the photo of broken LED attached marked as Annexure R.2.  The opposite parties have not produced any documents in support of their version and arguments. 
10.   The opposite party No.1 has taken different stand in the written statement that the representative of opposite party No.2 visited the house of complainant and found that TV was totally damaged.  On the contrary, the opposite party No.2 manufacturer has pleaded contrary to the defence of opposite party No.1 that the opposite party No.1 had took the product for the inspection.  If the defence of opposite party Nos.1 and 2 perused doubt creates that who has inspected the TV and noticed physical damage to it. If the representative of opposite party No.2 has inspected and noticed physical damage or mishandled or opposite party No.1 has inspected the TV either of them would have produced the report of the person inspected the TV or they would have served the inspection note to the complainant on the same day on which he has inspected.  The truth is not forth coming why the opposite parties have withheld the inspection report if submitted by the person who tested and reported about physical damage caused to the television. 
11.   The opposite parties have not disputed complaining of non-function of the TV immediately by the complainant after 02.01.2019.  Further the opposite parties have not disputed non-functioning of TV and inspecting the television after 02.01.2019.  The burden is on the opposite parties to prove that the TV was mishandled by the complainant by producing the report of the person who inspected.  The report prepared by the person who inspected is best evidence to believe that it was physically damaged by the complainant or her family members.  In addition to that the said person would have served the copy of report to the complainant or opposite parties would have sent copy of the inspection report to the complainant immediately to show that it was mishandled by the complainant as such it is out of warranty.  The non-service of inspection report or sending the same to the complainant is nothing but withholding of best evidence by the opposite parties.  Therefore, the defence of opposite parties is not believable that television was physically damaged by the complainant as such it was out of warranty clause since the TV was not functioning within three months from the date of purchase.  Therefore, the complainant is entitled for either replacement of new LED Panasonic TV or its price along with compensation and litigation cost. Accordingly, we proceed to pass the following;

O R D E R

1. The complaint filed by Smt.Kalpana.C.T  is partly allowed directing the opposite party Nos.1 and 2 jointly and severally liable to replace the New Panasonic LED TV worth Rs.20,200/- with fresh warranty period of one year or they shall pay the value of the TV Rs.20,200/- to the complainant within 30 days from the date of order.  In case the opposite parties fail to comply with the order within 30 days, they are liable to pay Rs.100/- per day as penalty till  compliance. 
2. The opposite party Nos.1 and 2 shall jointly and severally to pay a sum of Rs.5,000/- as compensation and Rs.5,000/- as litigation expenses to the complainant within 30 days from the date of order otherwise, it carries interest at the rate of 10% per annum from the date of filing complaint till payment.
3. Furnish copy of order to the complainant and opposite parties at free of cost.

(Dictated to the Stenographer, got it transcribed, corrected and pronounced in the open Forum on this 3^RD DAY OF JANUARY, 2019)

                                                   (C.V. MARGOOR)

                                                        PRESIDENT 

                                                 (M.C. DEVAKUMAR)

                                                         MEMBER