Orissa

Rayagada

CC/133/2017

Sri Rajesh Vyas - Complainant(s)

Versus

The Regional Manger LG. Electronics India Pvt. Ltd., - Opp.Party(s)

Sri V.R.M Patnaik

19 Dec 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

                                      PO/DIST; RAYAGADA,   STATE:  ODISHA ,Pin No. 765001

C.C. Case  No.   133/ 2017.                                      Date.     19       12   . 2018.

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                                                   President

Sri GadadharaSahu,                                                                        Member.

Smt.Padmalaya  Mishra,.                                                              Member

 

Sri Rajesh Vyas,  S/O: Sri Late P.Vyas, New Colony, VAmsi Krishna hotel lane, Old Employment office,  Po/  Dist:    Rayagada, State:  Odisha.               Cell No.94370-27720.                                                                                                                                                                                                                                                                                                                                                                                     …….Complainant

Vrs.

1.The Manager, L.G.Electronics India Pvt. Ltd., A wiwng, 3^rd. floor, District Centre, Saket, New Delhi. 110017         

2.The  Proprietor, Jain Enterprises, New Colony, Rayagada,.(Odisha).    .…..Opp.Parties

Counsel for the parties:                                 

For the complainant: - Sri V.Ram Mohan Patnaik, Advocate, Rayagada.

For the O.P. No.1:- Sri S.K.Mohanty, Advocate, Bhubaneswar

For the O.Ps  No.2  :-.Set Exparte 

                                                JUDGEMENT.

The  curx of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for  non refund of price of the L.E.D. set a sum of Rs.44,000/- towards found defective after warranty period     for which  the complainant  sought for redressal of the grievances raised by the complainant.

Upon  Notice, the O.P No.1   put in their appearance and filed  written version through their learned counsel in which  they refuting allegation made against them.  The O.P No.1   taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.P No.1.   Hence the O.P  No.1 prays the forum to dismiss the case against  them  to meet the ends of justice.

Upon  Notice, the O.P No.  2  neither entering in to appear before the forum nor filed their  written version inspite of more than  10 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.P No. 2 .  Observing lapses of around 1 year  for which the objectives  of the legislature of the C.P. Act going to be destroyed to the prejudice of the interest of the complainant.  Hence after hearing  the  counsel for the complainant set the case  exparte against the O.Ps 2. The action of the O.P No. 2 are against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.P No.  2  was set exparte  as the statutory period  for filing of  written version was over to close the case with in the time frame permitted by the C.P. Act.

Heard arguments from the learned counsel for the    O.P    and from the complainant.    Perused the record, documents, written version  filed by the parties. 

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.

                                                                    FINDINGS.

                Undisputedly the complainant had  purchased  the L.G.Brand   L.E.D. on payment of consideration   a sum   for Rs.44,000/- to the  O.P. No.1 (copies of the  Retail invoice No. CR-4774 Dt.12.11.2015  is in the file which is marked as Annexure-I). 

                The main grievance of the complainant  is that   the above set is giving  various problems  such as  some machineries  found  defective,  not providing any picture when it is opened.  inter alia   said  set is not at all in working condition  totally damaged. The  complainant  in their petition  mentioned that  he has  sent  E-mail  on Dt.26.8.2017  to the O.P. No.1 for repair of the above set.  The complainant has agreed for its repair and replacement of the parts, and he has also agreed to pay if the cost of the spare pats is necessary to be replaced.  The mechanics did not respond till today and the T.V. set is kept idle without any  use by the complainant. So the  complainant  had requested    the O.Ps   to replace or refund purchase  price of the above set but the O.Ps  have     turned deaf ear.  Hence this C.C. case.

                The O.P. No.1 in their written version contended that  in the present complaint  alleged above set is stated  to be provided on Dt. 12.11.2015, and for which warranty  on it  expires on Dt. 11.11.2016. No complaint was lodged or pending during first year warranty.  The complainant has not made   any complaint   alleging defect in the above set  within its warranty period.  After using the above set around 21` months , on Dt. 26.8.2017,  the  complainant  lodged complaint i.e. “Spot on panel” and on inspection it is seen that the panel of television due to physical damage requires replacement and for which  service and spares are offered on chargeable  basis, and same  is refused to avail by complainant apprehending the television  is under extended warranty.  However, on demand to exhibit  the warranty card complaint showed his inability to produce  same, and for which only explanation was given to complainant vide job card   Dtd. 26.8.2017.    In the present  case, it is crystal clear that there has been  no manufacturing  defects in the goods purchased by the complainant with in warranty period and/or deficiency in service on the part of the  O.Ps Complaint even refused to avail service on payment of consideration for which he is not at all a consumer under law.  The complaint is filed on mere apprehension of deficiency in service and unfair trade practice without single scrap of materials  on record.  Parties are bound by the terms and conditions agreed among them and this are not a case of silence in terms of contract. On us and burden of proof  heavily  lies  on the complainant to establish his case.

                The  O.P.No.1 in their written version  contended  that    the complaint is filed by  “Rajesh Vyas” and verification is done in the name of Rajesh Vyas, where as the alleged T.V. was purchased by one “Raju Vyas.   The complaint  is filed without any authority of Raju Vyas.  To substantiate the  same the complainant  has filed  copies of the  Driving Licence  issued by the  Transport authority (copies of the same is in the file which is marked as Annexure-2). As per the records  the complainants name is  actual  Sri Raju Vyas.

                The O.P. relied  citations in support of their case which are mentioned here under:-

                The claim of the complainant based only on averments made in complaint without any corroborative evidence cannot be allowed  as has been held in  the case titled Sahib Singh Vrs. Sonu, 2006(2) CPC 115 Chd.

Further in the case of   Maruti Udyog Ltd. Vrs. Susheel  Kumar Gabgotra and others (AIR-2006)S.C 1586 where in the Hon’ble Supreme Court observed “Warranty conditions clearly refers to replacement of defective part not the  car – Not a case of silence of a contract of sale to warranty”.

                Again 2001(3) CPR 149, SCDRC,Kerala  in the case of Mrs. Jeenifer Alhones Vrs.  M.D M/S. Ind. Auto  and Anr where in the Hon’ble State commission  observed  “Technical  questions like manufacturing defect when pleaded by complaint burden is on him to adduce evidence.”

                Further   2003 NCJ (NC) in the case of Sri Suresh Kumar  Vishwarkarma Vrs.  Maa Koul where in the Hon’ble National Commission observed “ Section 2(1) (f)- defect- No evidence of defect in  computer- Held defect not proved.

                Again 2005(1) CPR-95 Rajesh Kumar Yadav Vrs. Agarwal Automobiles and Anr. Where the commission   observed  where in  vehicle was purchased in July, 1997 and complaint alleging   defect in it was  filed in May, 2002 and no technical evidence was produced to substantive the contentions, complainant could not be said to have proved his case.

                Further  V-VI-1994 (2) CPR-185, SCDRC, West Bengal in the case of Tapan Kumar Chakrabaorty Vrs.  M/S. Expo Machinery Ltd. Where in the Hon’ble State Commission observed  “Merely because  some parts    had to be replaced during repair carried out by manufacturer in the  above set it does not give right to complainant to have replacement  of  freeze by a new one.

                Again in the case of K.L.Arora Vrs. Groovy Communications 2002(3) CPR 92 (NC) where in the Hon ‘ble National Commission  observed  “for the necessity of expert evidence to prove  the submissions of manufacturing defects in the  goods  made in the complaint.

                Further  in the case of Videocon International Ltd. Vrs. K.Viyjaayan & othrs  1999(1) CPR-20 wherein   the hon’ble commission  observed  “That for replacement of product the defect must be manufacturing   and for proving manufacturing  defects expert report  is essential.”

                Again   in the case of Sterocraft Vrs. Monotype India Ltd, New Delhi 2000 NCJ (SC) 59 where in the Hon’ble Supreme Court observed “ When the terms of warranty does not cover refund or replacement then  consumer can not claim either replacement or refund  during  or after  the lapse of warranty  period.  The consumer can only  claim repairing  of the product if permissible under the terms of service contract or warranty.

Further the  O.P. No.1 in their written version  relied citations  i.e. This is not a  case of silence of contract  and the relief claimed beyond terms of contract is not maintainable as Forum  can not form new contract as held in Suraj Ram Niwas Oil Mills Pvt.  Ltd Vrs. United India Insurance Co. Ltd. & Anr. 2010(10) SCC  567, where  in the Hon’ble Supreme Court observed “ That the terms of a contract of insurance have  to  be strictly construed and no exception can be made on the ground of equity. The  Hon’ble  Supreme Court further observed  “26. Thus, it needs little emphasis that in construing  the terms of a contract of  insurance, the words  used therein must be given paramount  importance, and it is not open for the court to add, delete or substitute  any words.  It is also well settled that since upon issuance of an insurance policy, the insurer undertakes to indemnify the loss suffered by the insured on account of risks covered  by the  policy, its terms have to be strictly  construed to determine the extent of liability  of the insurer. Therefore the endeavour of the court should always be to interpret the words  in which the contract  is expressed by the parties”.  It is further held in  General Insurance Society Ltd. Vrs. Chandumull Jain  & Anr.  Reported in 1966 (3) SCR -500  where the Hon’ble Supreme Court observed “In interpreting documents  relating to a contract of insurance, the duty of the court is to interpret the words in which the contract is expressed by the parties, because it is not for  the court  to make a new contract, however reasonable, if the parties have not made it  themselves”.  The terms  of agreement  executed  among part is to be given utmost priority, while adjudicating a complaint or dispute arising out of it, as parties are bound by the terms and conditions of agreement  agreed among them.

 

 

The O.P. No. 1  vehemently argued that in this case there is no defect in the  above set of the complainant within warranty period, but the complainant has filed this fabricated complaint only to  tarnish the reputation of the O.P No.1 after warranty period    and to secure the unlawful gains from the O.Ps.

This forum agree with the views taken by the O.P No.1  in their written version.   

Keeping in view all the facts and circumstances, we are of the decisive opinion that the instant case  is devoid  of merit.  Further  this forum do not find any other legal issue involved in the matter. In the circumstances, we do not see any reason which would call  for our interference.

So  to meet the  ends of justice    the following order is passed.

                                                                                O R D E R

                In  resultant the complaint petition  stands  disposed off on contest against the O.Ps. 

The O.P No. 1 (Manufacturer) is  directed to remove all  the defects  of the above  set including  replacement of defective parts if any free of cost  enabling the complainant to use the same in perfect running condition  if the complainant  approached  the O.Ps  to rectify the defect of his   set  and shall provide all sort of after sale service to the complainant as per the terms and conditions as agreed for the  afore said   set with full satisfaction of the complainant.  There is no order as to cost.

.

The O.P. No. 2  is directed to refer the matter to the O.P. No.1 for early compliance of the above order..

Dictated and corrected by me.  Pronounced in the open forum on    19   ^th.   day  of    December, 2018.

 

MEMBER                               MEMBER                                                       PRESIDENT