O R D E R
(By Sri V.V.L. Narasimha Rao, President [FAC] on behalf of the Bench)
1. The present complaint is filed by the complainant under Section 12 of C.P. Act on 14.11.2010 against the opposite party District Forum returned the complaint on 30.12.2010 with (4) objection, thereupon after 424 days the complaint was re-presented before Forum with the petition U/Sec. 148 r/w 151 CPC ( For enlargement of time) vide IA 26/12 in IR 980/2010. After hearing the complainant the delay of 424 days was condoned on payment of costs of Rs. 200/- vide receipt dated 26.04.2012.
The complainant requested the Forum (1) to direct the opposite party No.1 to replace the defective DVD player with new DVD or else the amount of Rs. 8,990/- i.e. for purchasing DVD player may be returned along with 12% p.a. from the date of 22.03.2010 till realization (2) and to pay an amount of Rs. 10,000/- for causing mental agony along with costs for litigation.
2. The brief averments are as follows: The complainant’s submits that he has purchased DVD player (Desire – 9 Portable) from the opposite party on 22.03.2010 for Rs. 8,990/- vide bill No. 2307. At the time of giving the invoice the opposite party has given the user’s manual along with warranty card for the DVD player which is for one year from the date of purchase i.e. from 22.03.2010 to 21.03.2011.
3. While handing over the DVD player to the complainant the opposite party gave assurance that the said player will play for 90 minutes on battery charging. While so as the DVD player is not functioning well. Even after the charging the battery the complainant gave a complaint to the opposite party orally and there upon the opposite party has changed the battery in the DVD player. Though the battery was changed the DVD player is not functioning properly. The complainant main intention is to purchase the DVD player to entertainment in his journey. Due to the lesser play time of the DVD player the purpose for which the DVD player was purchased not served.
4. The complainant got issued notice to the opposite party demanding to replace the DVD player with new DVD player or else sale consideration of Rs. 8,990/- along with interest. But the opposite party received legal notice and sent reply to the same on 23.10.2010 with vague allegations. Hence alleging deficiency of service on the part of the opposite party the present complaint is filed seeking reliefs as sought for.
5. The opposite party for receiving notice filed counter and stated as follows. The complainant purchased DVD player (Desire -9 Portable) from the opposite party shop at Kakinada on 22.03.2010. At the time of sale transaction the complainant was given the original user manual and warranty card. The warranty card on the product is given by the manufacturer or not by the retailer. As per the terms of the warranty the manufacturer gave 6 months warranty against the defects in material or on the product. The details of the terms of the warranty or mentioned in the warranty card. On 22.05.2010 the complainant approached the opposite party with a complaint that battery is not charging with full capacity. The opposite party explained about the defect to be rectified in concerned authorized service center. If any, DVD is purchased at the time of starting the DVD initially it should be kept with charging for full time. As the complainant has not charged the DVD for full time the retention capacity might have been lost. However the Service Engineer of the opposite party to replace the new battery in the DVD and issued receipt to that extent and also the complainant was advised to put the product in full charging mode till it is fully charged. After that the complainant left the opposite party shop with utmost satisfaction. Thereafter on 14.07.2010 again he came with a demand to replace the battery once again. The staff of the opposite party to contact the authorized service center to rectify any defect as per the warranty conditions. Since the product is used by the complainant improperly the opposite party is not liable to replace the same. When the complainant got issued legal notice the opposite party issued suitable reply. Hence as there is no fault on the part of the opposite party the present complaint is maintainable and it is liable to be dismissed with costs.
6. On perusing the entire pleadings of the both sides the Forum has framed following points for consideration.
1. Whether the complaint is maintainable before the Forum as manufacturer is not made as party?
2. Whether there is any deficiency of service on the part of the opposite party?
3. To what relief?
7. The complainant filed his chief examination affidavit reiterating the entire facts mentioned in the complaint and on behalf of Exs. A1 to A4 were marked.
8. On behalf of the opposite party Mr. B.V. Kishore Kumar, Store Manager of Spencer’s Retail Limited filed evidencing affidavit narrating the entire facts mentioned in their counter on behalf of the opposite party Exs. B1 and B2 were marked.
9. The complainant and opposite party submitted oral arguments. Heard both sides.
10. Point No.1: The present complaint is filed by the complainant against the opposite party seeking reliefs to replace the defective DVD player with new another DVD player or else refund of the sale consideration amount of Rs. 8,990/- along with interest, compensation and costs. The opposite party after receiving the complaint stated in the counter that with regarding to defects if any in the product the complainant has to approach the manufacturer but any how taking initiate to rectify the problem the opposite party has changed the battery in DVD on 22.05.2010 and advised the complainant to put the product in full charging mode till it was charged. Warranty for the product is only for 6 months against the defects in material or workmen ship of the product.
11. Ex.A1 is the bill for Rs. 8,990/- for purchasing Desire-9 Portable DVD player on 22.03.2010, except the rate of the DVD player it is not mentioned anywhere in the bill that the DVD player is having 12 months warranty.
The warranty card for the DVD player dated 22.03.2010 and the user manual for using DVD player are marked as Ex.A2. On perusing the warranty card it reveals that the product is having 12 months warranty. The clause 3 of the user’s manual i.e. functions introductions reveals that the supra anti shock resistance for DVD is having 3 seconds for CD is 10 seconds and MP3 it is for 90 seconds. Clause 10 is user’s manual book let reveals about the multi types of display, repeat play and MP3/ MP4 display.
Ex.A3 is legal notice dated. 11.10.2010 served to the opposite party for replacement of the defective DVD player with new DVD player.
Ex.A4 is the reply for the Ex.A3 given by the opposite party, deny the version of the complainant mentioned in Ex.A3.
12. Exs.A1 to A4 and Exs.B1 and B2 are same documents.
13. Now the points is to be decided is whether the complaint is filed by the complainant is maintainable before this Forum without making the manufacturer as a party.
14 In the complaint the complainant as stated that as there is a defect in the battery of the DVD player and the same is brought to the opposite party, opposite party has changed the battery in the DVD player. Even observing the Ex.A3 legal notice in para No.1 the complainant is treated that the opposite party has changed in the DVD player after receiving the complaint. The opposite party in Ex.A4, vide para No.2 admitted that though the problem is concerned with the manufacturer or not by the retailer, on human brain grounds the opposite party entertained the complaint calling Service Engineer. The Service Engineer attended the complaint and observing the working conditions of the DVD player the new battery was replaced in the DVD player. Even in the para No.4 of the counter, the opposite party stated that as the opposite party has not kept for charging for full time. When the product was initially charged the battery might have been lost. So the Service Engineer of the opposite party has replaced the new battery in the DVD player by issued a receipt.
15 When the opposite party himself admitting that he has taken responsibility to do help the complainant as a customer and replaced the battery in the DVD player which was alleged by the complainant. The opposite party at the later stage can’t deny the request of the complainant. As the opposite party itself has undertaken the responsibility for the first time in the first instance there is no need to make the manufacturer as party. Hence we conclude that the complaint is maintainable before this Forum though the manufacturer is not made as a party. Accordingly the point No.1 is answered.
16 Point No.2: The opposite party in the counter stated that once on 22.05.2010 taking responsibility when the battery was replaced in the DVD player and also as the warranty period for the product is only for 6 months. The complainant can’t ask for the relief of changing the new DVD player and also there is no deficiency of service on the part of opposite party.
17 On perusal of the Ex.A2 warranty card it itself reveals that the product is having 12 months warranty from 22.03.2010 to 21.02.2011. The opposite party wrongly stated that the product is having 6 months warranty period and refused to attend the complaint dated 14.07.2010 which is within the warranty period. On observing the para No.4 of the counter of the opposite party, the opposite party has stated that for the first time usage of the DVD player the product is to be kept in full time for till the battery is charged. As the complainant has not followed the same it might have been lost and thereby on 22.05.2010 another battery was replaced in the DVD player.
18 In the light of the facts and material record on perusing the Ex.A2 user’s manual booklet it is not mentioned anywhere in the booklet that the product should be kept in charging till the battery was fully charged. Also viewing the version of the opposite party (in para No.4 of counter ) and relying strictly on the warranty period is only for 6 months period, we conclude there is deficiency of service on the part of the opposite party in not replacing the new DVD player in place of the defective DVD player. Accordingly point No.2 is answered.
19 Point No.3: As confronted by the point No.2 there is no deficiency of service on the part of the opposite party observing the version of the complainant and the opposite party in Ex.A3 and A4, complaint and counters of the opposite party we are off conclusive opinion that only equitable remedy available to the complainant is that replacement of new DVD player in place of defective DVD player. The complainant has to approach the opposite party with a defective DVD player and shall handover the same to the opposite party. After receiving the defective DVD player the opposite party has to give new DVD player with fresh warranty period for another 12 months and shall take acknowledgment from the complainant to that extent. On perusal of the delay of 424 days in representing the complaint vide IA 26/12 and also as the opposite party is directed to give new DVD player with fresh warranty period from the date of receipt of the defective DVD player from the complainant, we hold that the complainant is not entitled for any compensation. The complainant is entitled for costs of Rs. 500/-. Accordingly point No.3 is answered.
20 In the result, the complaint is allowed in part. The opposite party is directed to replace the new DVD player in the place of defective DVD player. The complainant has to approach the opposite party with his defective DVD player and shall handover the same to the opposite party. After receiving the defective DVD player the opposite party has to give new DVD player with fresh warranty period of 12 months to the complainant and shall take acknowledgment from the complainant to that extent. The opposite party has to pay Rs. 500/- [Rupees five hundred only] to the complainant. The time for compliance of this order is that only 30 days from the date of receipt of this order.
Dictation taken by the Steno, transcribed by her, corrected and pronounced by us, in open Forum, this the 19th day of June, 2015.
Sd/-XXXX Sd/-XXXXXXXX
MEMBER PRESIDENT [FAC]
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For complainant:
Sri Ganta Ramana
For opposite party:
Sri B.V. Kishore Kumar, Store Manager, Spencer’s Retail Limited, Kakinada
DOCUMENTS MARKED
For complainant:-
Ex.A1 22.03.2010 Bill for Rs. 8,990/- for purchasing Desire-9 Portable DVD player
Ex.A2 22.03.2010 Warranty card for the DVD player and the user manual for using DVD player
Ex.A3 11.10.2010 Legal notice dated. 11.10.2010 issued by the complainant to the opposite party
Ex.A4 23.10.2010 Reply given by the opposite party
For opposite party:-
Ex.B1 22.03.2010 Bill for Rs. 8,990/- for purchasing Desire-9 Portable DVD player
Ex.B2 22.03.2010 Warranty card for the DVD player and the user manual for using DVD player
Sd/-xxxxx Sd/-xxxxxxx
MEMBER PRESIDENT [FAC]
