BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER O.P. No. 353/2004 Filed on 07.09.2004 Dated : 15.09.2009 Complainant : K. Mohanakumaran Thampi, T.C. No. 50/766(2), Plot No. 31 A, Sukrishna, Devi Nagar, Kaladi, Karamana, Thiruvananthapuram. Opposite parties :
The Proprietor, R.V. Electronics, Aryasala, Thiruvananthapuram. (By adv. R. Kunjukrishnan Potti)
Addl. Opposite parties:
M/s Akai Consumer Electronics India Ltd., Shivashish Complex, M. Vasanji Road, Sakinaka, Mumbai – 72. (By adv. B.A Krishna Kumar)
M/s Baron International Ltd., Door No. 30/3078, G&G2, Thammanam Road, Palarivattom, Cochin – 682 025 and also having address as M/s Baron International Ltd., Door No. T.C 4/2118, K.V. Towers, Marappalam, Pattom, Thiruvananthapuram.
This O.P having been heard on 30.07.2009, the Forum on 15.09.2009 delivered the following:
ORDER SRI. G. SIVAPRASAD: PRESIDENT
The facts leading to the filing of the complaint are that complainant had purchased an Akai T.V for Rs. 27,990/- from the1st opposite party on assurance given by the opposite parties that complainant would get Rs. 30,000/- after 5 years and 11 months from the date of purchase. Complainant purchased the said T.V at a higher price on the basis of the bonus offer assured by opposite parties. At the time of purchase of the said T.V opposite party had issued a cheque for Rs. 30,000/-. When the said cheque was sent for encashment through Bank of Baroda the same was returned. Opposite parties did not return the offered amount of Rs. 30,000/-. On 18.05.2004 when complainant approached the service centre for repairing the T.V the service centre collected Rs. 1,968/- from the complainant. When complained to the opposite parties, they promised the said amount would be given along with Rs. 30,000/- assured by opposite parties. Hence this complaint to direct the opposite parties to return the amount assured by opposite parties with compensation of Rs. 20,000/-. 1st opposite party entered appearance and filed version contending that as per the terms and conditions of the bonus offer the jurisdiction to decide and settle all disputes would lie only within the jurisdiction of the courts at Mumbai. 1st opposite party has not made any promise or representation. If the manufacturing company has made any such promise complainant has to seek remedy against the manufacturing company who made the offer. 1st opposite party did not agree to pay Rs. 30,000/- as averred in the complaint. There existed no consideration for making such a promise. 1st opposite party has no contractual or legal obligations to make payment. Without the Akai Company on the party array complainant is not entitled to get any relief. There is no deficiency in service on the part of the 1st opposite party. Hence 1st opposite party prayed for dismissal of the complaint. 2nd opposite party field version contending that complainant is not a consumer. Complainant had never approached the 2nd opposite party with any complaint whatsoever. Complaint is bad for non-joinder of necessary parties. M/s Akai Consumer Electronics India Ltd. was incorporated only on 06.07.1999. 2nd opposite party was not the manufacturer of Akai T.V during the year 1998. During the said period M/s Baron International Ltd. was the manufacturer of the product Akai. The sales and service was done through M/s Baron International Ltd., 2nd opposite party is not the successor in interest of Baron International Ltd. and is not liable to compensate the complainant for any acts done by them. The said company is still in existence and is presently dealing with the brand “Bush” under the name M/s Baron Tele Communications. During June 2004, there were enquiries with the 2nd opposite party regarding post dated cheques issued by M/s Baron International Ltd. under the so called money back scheme which was offered in the year 1998. 2nd opposite party issued a public notice which was published in Indian Express daily on 08.07.2004 stating that M/s Baron International Ltd. and M/s Akai Consumer Electronics India Ltd. are independent companies and 2nd opposite party is not at all concerned or connected with the cheques issued by M/s Baron International Ltd. in connection with money back scheme. Whether complainant had purchased the television under the said scheme is also not known to the 2nd opposite party. 2nd opposite party is also not aware as to whether any guarantee of 5 years and 11 months were given to the complainant by Baron International Ltd. Complainant is not entitled for any relief as claimed for. Hence 2nd opposite party prayed for dismissal of the complaint. 3rd opposite party did not turn up inspite of notice published in Mathrubhumi daily. No version filed and 3rd opposite party set exparte. The points that arise for consideration are:- Whether opposite parties had offered a scheme of 'Bonus profit' on purchase of CT 2985 model Akai T.V to complainant? Whether the complainant has opted the “Bonus profit offer” scheme? Whether the complainant is entitled to get Rs. 30,000/- as per said scheme? Whether there is unfair trade practice and deficiency in service on the part of opposite parties? Whether the complainant is entitled to get compensation and cost, if so at what amounts?
In support of the complaint, complainant has filed proof affidavit and Exts. P1 to P10 were marked. In rebuttal, 1st opposite party has filed affidavit. Opposite parties did not produce any documents. Complainant has been cross examined by opposite parties 1 & 2. 2nd opposite party produced copies of three documents which are on the record. 2nd opposite party did not file affidavit. Points (i) to (v):- It has been the case of the complainant that he had purchased an Akai TV for Rs. 27,990/- from the 1st opposite party in pursuance of the promise made in the advertisement by the opposite parties in the Mathrubhumi daily dated 3rd & 8th July 1998 and obtained a post dated (09.06.2004) cheque for Rs. 30,000/- drawn on SIAM Commercial bank towards the Bonus offer, that when the said cheque was presented for encashment through Bank of Baroda, the same was dishonoured, that even after repeated requests, the said amount was not given by the opposite parties. It has also been the case of the complainant that complainant had purchased the said T.V at higher price, on the basis of the promise given by the 1st opposite party as well as the captivating advertisement mooted by opposite parties under the bonus offer scheme, that as per the said scheme, it was said that while purchasing one Akai T.V, the purchaser would get a sum of Rs. 30,000/- after 5 years and 11 months from the date of purchase. Ext. P1 is the Mathrubhumi newspaper advertisement dated July 8, 1998. As per Ext. P1, three different offers are seen advertised by Akai Electric company Ltd., Japan. Offer 1 is in connection with Akai CT 298573 cm (29) which the complainant is seen opted to purchase. As per the said offer, when purchased the said T.V by payment of Rs. 27,900/-, the buyer would get back Rs. 30,000/- after 5 years and 11 months. The advertisement as seen in Ext. P1 reads as under: “ഇന്ന് ഒരു അകായ് ടി വി വാങ്ങൂ. 5 വര്ഷം 11 മാസം കഴിഞ്ഞാല് നിങ്ങള് കൊടുത്ത തുകയെക്കാള് തിരിച്ചു കിട്ടും. യാതൊരു വിധ എക്സ്ചേഞ്ചും ആവശ്യമില്ല. അടുത്തുള്ള അകായ് ഡീലറുടെ അടുത്തു ചെന്ന് അവിടെ വച്ചിട്ടുള്ള ഏതെങ്കിലും ഒരു ടിവി തിരഞ്ഞെടുക്കൂ. അതുവാങ്ങിയാലുടന് ടിവിക്കായി കൊടുത്ത തുകയും അതിനു ലാഭവിഹിതമായി കിട്ടുന്ന ബോണസ്സും ചേര്ന്ന തുകയ്ക്കുള്ള ഒരു പോസ്റ്റ് ഡേറ്റഡ് ചെക്ക് നിങ്ങള്ക്ക് ലഭിക്കുന്നതാണ്. ചെക്ക് ഒരു നെഗോഷ്യബിള് ഇന്സ്ട്രുമെന്റാണ്. അതിന് കാലാവധിയെത്തിയാല് ചെക്ക് നിക്ഷേപിച്ച് പണം എടുക്കാം. ഇത്തരമൊരാനുകൂല്യം മറ്റു കന്പനികളൊന്നും തരുന്നില്ല. ഇന്ത്യന് നിയമമനുസരിച്ച് (നെഗോഷ്യബിള് ഇന്സ്ട്രുമെന്റ്സ് ആക്റ്റ് ) ചെക്ക് ബൗണ്സ് ആയാല് അത് ഒരു ക്രിമിനല് കുറ്റമാണ്.അതിനാല് നിങ്ങള്ക്ക് പണം കിട്ടാതിരിക്കയില്ലെന്ന് ഉറപ്പാക്കാം. നീണ്ട നടപടിക്രമങ്ങളില്ല. മടുപ്പിക്കുന്ന പേപ്പര് വര്ക്കുകളില്ല. ചെക്ക് നിക്ഷേപിക്കുക. പണം സ്വന്തമാക്കുക അത്ര മാത്രം. എന്തെളുപ്പം അല്ലേ? നിങ്ങള്ക്ക് അറിയാമല്ലോ. ഇന്ത്യയിലെ ഓരോ വീട്ടിലും ഒരു അകായ് ടിവി എത്തിക്കുകയാണ് ഞങ്ങളുടെ ലക്ഷ്യം. ഒന്നിനു പിന്നില് ഒന്നായി കൂടുതല് മെച്ചപ്പെട്ട ആനുകൂല്യങ്ങളുമായി ഞങ്ങള് നിങ്ങള്ക്ക് മുന്നിലെത്തുന്നത് അതു കൊണ്ടു തന്നെയാണ് താനും. ചുരുക്കത്തില് ഇത്തവണ ഒരു അത്യാധുനിക ടിവി മാത്രമല്ല, അതിന് നിങ്ങള് കൊടുത്ത വിലയും തിരികെ കിട്ടുന്നു ലാഭത്തോടു കൂടി. പണത്തിന്റെ മൂല്യം നല്കുന്നു എന്നു പറഞ്ഞാല് ഇതാണ്”. In the said advertisement (Ext. P1) the name of Akai Electric Company Ltd., Japan is seen given. The same advertisement in English is seen given in the Indian Express Newspaper dated July 3, 1998(the said paper furnished by the complainant is also on the record). As per Ext. P1, the sales & service is by Baron International Ltd. Among the names of authorized distributors, 1st opposite party's name is given in the advertisement. Ext. P2 is the original post dated cheque issued in the name of the complainant, drawn on the SIAM Commercial Bank, PCL, Mumbai by Baron International Ltd. Ext. P4 is the copy of the cash bill dated 09.07.1998 issued to complainant by the 1st opposite party. As per Ext. P4 the price of Akai 29” CTV model No. CT 2985 is Rs. 27,990/- as is advertised in Ext. P1. As per Ext. P1, the buyer would get back Rs. 30,000/- after 5 years and 11 months from the date of purchase of Akai T.V. Since the said T.V is seen purchased on 09.07.1998 vide Ext. P4, the date mentioned in Ext. P2 cheque (that is 09.06.2004) would directly relate to Ext. P1 advertisement, thereby we hold that the Ext. P2 cheque is seen issued to complainant in connection with the purchase of Akai T.V in pursuance of the advertisement by Ext. P1. Ext. P5 is the document evidencing the particulars of Ext. P2 cheque withheld/returned issued by the National Clearing Cell, RBI, Tvpm. Ext. P5(i) is the original dishonour slip issued by the Bank of Baroda to the complainant. As per Ext. P5(1) the reason for return is Account blocked. Ext. P6 is the correspondence dated 09.08.2004 by Bank of Baroda sent to the SIAM Commercial Bank, Mumbai. Ext. P7 is the original letter dated 20.08.2004 addressed to complainant informing him of an amount of Rs. 130/- being debited in his account towards handling charges and postage charges on his cheque in Bombay returned unpaid. Ext. P8 series is the counterfoil of cheque details issued by the Bank of Baroda. Ext. P3 is the warranty issued by Baron International Ltd. and signed by the dealer. As per Ext. P3 the warranty period is one year. Ext. P9 is the cash receipt dated 18.05.2004 issued by SMART Service for Rs. 1,968/- towards component charge and service charge. As per Ext. P9, the said service is seen done after the warranty period of one year, thereby complainant is liable to pay the component charges and service charges. It is argued by the 1st opposite party that 1st opposite party is only a dealer and the dealer has not made any promise or representation, and that if the manufacturing company has made any such promise and has resiled from the promise, the complainant has to seek his remedy against manufacturing company, who made such offer. The stand of the 2nd opposite party is that M/s Akai Consumer Electronics India Ltd. was incorporated only on 06.07.1999, that 2nd opposite party was not the manufacturer of the product Akai T.V during the year 1998, that during the said period M/s Baron International Ltd., Zenith Building, 3rd Floor, Mahalexmi Mumbai-34 was the manufacturer of the product Akai, that the sale and service was done through M/s Baron International Ltd., Door No. 35/3078 GDG2, Thammanam Road, Ernakulam. It has been contended by the 2nd opposite party that they are not the successor in interest of M/s Baron International Ltd. and is not liable to compensate the complainant for the acts done by them and that there was no dealing between the 2nd opposite party and the complainant. It is stated by 2nd opposite party that during 2004, there were enquiries with this opposite party regarding post dated cheques issued by M/s Baron International Ltd., under the so called money back scheme which was offered in the year 1998, that the 2nd opposite party issued a public notice which was published in the Indian Express daily on 08.07.2004 stating that M/s Baron International Ltd. and M/s Akai Consumer Electronics India Ltd. are independent companies and the 2nd opposite party is not at all concerned or connected with the cheques issued by M/s Baron International Ltd., in connection with the money back scheme. 2nd opposite party did not file affidavit to substantiate their version. It is pertinent to note that Ext. P2 cheque is seen issued by the 3rd opposite party and the 3rd opposite party remained exparte. In Ext. P1 advertisement Akai Electrical Company Ltd, Japan, Sales & Service by Baron International Ltd.(3rd opposite party), R.V. Electronics as dealer(1st opposite party) and other names of dealers are seen mentioned. The name of the 2nd opposite party M/s Akai Consumer Electronics India Ltd. is not seen in the said advertisement. Further as per documents furnished by the 2nd opposite party, 2nd opposite party had already published a public notice in the Indian Express dated July 8, 2004 informing that Baron International Ltd. and Akai Consumer Electronics India are two independent companies and 2nd opposite party is not at all concerned or connected with the cheques issued by BIL, and that 2nd opposite party company was incorporated in July 1999. 2nd opposite party has furnished other documents showing certificate of incorporation and certificate of commencement of business. In view of the version and documents furnished by 2nd opposite party and in the light of evidence available on records, we are of the considered opinion that 2nd opposite party was not the manufacturer of the product Akai Television during the year 1998 whereas issuance of Ext. P2 cheque to the complainant by the 3rd opposite party by which it is clear that the Ext. P1 advertisement was made by the additional 3rd opposite party and it is through the 1st opposite party dealer, the said transaction was made. Bouncing of Ext. P2 cheque by 3rd opposite party would be a criminal offence. Complainant could very well take criminal action against the 3rd opposite party. Complainant undoubtedly is a victim of misleading advertisement published by the Akai Electrical Company and 3rd opposite party. Since 1st opposite party's name was also seen in the said advertisement and the aforesaid T.V was seen sold to complainant in pursuance of the said advertisement, 1st opposite party cannot wash his hands of from the alleged transaction. The action of 1st and 3rd opposite party offering a money back scheme on oral assurance as well as on captivating advertisement in the newspaper induced the innocent complainant/customer to purchase their branded product and after the sale of the said product, opposite parties 1 & 3 resiled from the said promise, which would amount to unfair trade practice. Consumer Protection Act has wide ramifications. In the globalised world sellers would adopt sale promotion tactics which would stimulate the customers to prefer their brand product, but after the sale of their targeted product, some of the competing firms/sellers may hide behind the bushes of promises, which would negate consumer sovereignty. Consumers have to be protected from the clutches of the tight trammels of vicious circle of unfair trade practices being adopted by monopolistic competitive firms. Herein also the consumer-complainant became a victim of unfair trade practices of opposite parties 1 & 3. Opposite parties 1 & 3 cannot be allowed to escape from their liability to compensate the aggrieved consumer. Taking into consideration of the totality of the circumstance, we are of the considered opinion that it will be expedient and justice will be well met if complainant is granted a compensation of Rs. 20,000/-. In the result, complaint is partly allowed. 1st and 3rd opposite parties shall pay the complainant a sum of Rs. 20,000/- towards compensation and Rs. 3,000/- towards costs. The said amount will carry interest if not paid within two months from the date of receipt of this order. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room. Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15th day of September 2009.
G. SIVAPRASAD, President.
BEENAKUMARI. A : MEMBER
S.K. SREELA : MEMBER
O.P. No. 353/2004 APPENDIX I COMPLAINANT'S WITNESS : PW1 - K. Mohanakumaran Thampi II COMPLAINANT'S DOCUMENTS : P1 - Newspaper cutting showing the advertisement published in Mathrubhumi daily on 8th July 1998. P2 - Cheque dated 09.06.2004 of the SIAM Commercial Bank PCL for Rs. 30,000/-. P3 - Original warranty card dated 09.07.1998. P4 - Photocopy of cash bill dated 09.07.1998 for Rs. 27,990/-. P5 - Office copy of credit advice dated 20.07.2004. P5(1) - Statement showing the cheques/drafts returned. P6 - Letter dated 09.08.2004 issued by Bank of Baroda. P7 - Receipt dated 20.08.2004. P8 - Receipt dated 12.07.2004. P8(1) - Receipt dated 06.08.2004. P9 - Cash receipt No. 1 dated 18.05.2004 for Rs. 1,968/-.
III OPPOSITE PARTY'S WITNESS : DW1 - R. Viswanathan IV OPPOSITE PARTY'S DOCUMENTS : D1 - Photocopy of the public notice given by the 2nd opposite party in Indian Express Daily. D2 - Photocopy of certificate of incorporation dated 06.07.1999 D3 - Photocopy of Certificate of Commencement of Business dated 06.07.1999
PRESIDENT
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | |
