Karnataka

Chitradurga

CC/63/2017

Smt Vanajakshamma W/o thippeswamy - Complainant(s)

Versus

ThePropreiter/The Authorized Signatory,Sri Raghvendra Music Center - Opp.Party(s)

Sri.P.Rajappa

28 Jun 2018

ORDER

COMPLAINT FILED ON:17.06.2017

DISPOSED      ON:29.12.2017

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHITRADURGA.

 

CC.NO: 63/2017

 

DATED:  29^th JULY 2017

PRESENT: - SRI. T.N. SREENIVASAIAH  : PRESIDENT                                   B.A., LL.B.,

                   SRI.N. THIPPESWAMY        :MEMBER

                                 B.A., LL.B.,   

 

……COMPLAINANT	Smt. Vanajakshamma, W/o Thippeswamy, Age: 45 Years, 2nd Cross, KHB Colony, Chitradurga.      (Rep by Sri.P. Rajappa, Advocate)
V/S
…..OPPOSITE PARTIES	1. The Proprietor, Authorised Signatory, Sri Raghavendra Music Center, Vasavi Mahal Road, Chitradurga.   2. The Authorized Signatory, Samsung India Electronics Pvt. Ltd., 3rd and 4th Vipul Tech Square, Sector-43, Gurgaon-122009.     (Rep by Sri.C.J. Lakshminarasimha, Advocate for OP No.1 and Sri. T.N. Ramesh, Advocate for OP No.2 )

ORDER

SRI. T.N. SREENIVASAIAH:   PRESIDENT

The above complaint has been filed by the complainant u/Sec.12 of the C.P Act, 1986 for the relief to direct the OPs to give new TV of the same model or return the price of the TV i.e., Rs.29,500/- along with interest @ 24% p.m from the date of purchase till realization, Rs.25,000/- towards mental agony and Rs.50,000/- towards legal notice charges, loss, inconvenience and such other reliefs.

2.     The brief facts of the case of the above complainant are that, the OP No.1 is the dealer and selling the Samsung TV and OP No.2 is the manufacturer of the same.  The complainant has purchased one Samsung TV bearing model No.32J4300 on 21.05.2016 under Bill/Receipt No.029 for Rs.29,500/- from OP No.1.  The OP No.1 has given warranty for one year to the above said TV.  OP No.1 undertake to rectify the damages occurred in the said TV during warranty period.  On the basis of assurance given by OP No.1, complainant purchased the above said TV from the OP No.1.  It is further submitted that after using the said TV, the working condition of the said TV is not proper, there is no functioning of colour in the said TV properly, failure of audio some times, the screen will become blur, sometimes the screen become more flash or more powerful.  Again and again, the contrast will be changing, sometimes colour will appear blur, there will be some software problems, manufacturing defects and other unexplained problems found in the said TV.  The complainant has rushed to the OP No.1 and informed the same for repair the same or to get rectify by replacing the TV set since the complainant has purchased the same with the OP No.1.  But the OP No.1 has assured the complainant that, he will send one Technician to solve the problem in the said TV.  Till this day, OP No.1 has not send anybody to repair the TV.  The complainant has used the said TV for a period of three months in the same problem.  The OP No.1 and 2 have selling the defective TV to the complainant, which is a negligence on the part of OPs and deficiency of service, the same cannot be compensated in any manner.  The complainant has issued notice to the OPs on 03.05.2017 through RPAD calling upon them to rectify or return the TV.  After due service of notice, OPs neither replied to the same nor rectify the defect found in the TV.  Due to the same, the complainant has suffered lot of mental agony, pain, financial loss from enjoying the TV, inconvenience and also unexplained problems in the TV.  Therefore, the OPs have jointly and severally liable to redress of the complaint. Now, the complainant is not intending to repair or rectify the problems found in the said TV and the complainant is required new TV of the same model or to return the TV price along with interest at the rate of 24% p.a.  The cause of action for filing this complaint has arisen when the complainant has issued legal notice to the OP No.1 and same was served to the OP No.1 on 08.05.2017 and received acknowledgement on 09.05.2017 which is within the jurisdiction of this Forum and therefore, prayed for allowing the complaint.  

 3.    On service of notice to the OPs, Sri. C.J. Lakshminarasimha, Advocate appeared on behalf of OP No.1 and filed version.  Sri. T.N. Ramesh, Advocate appeared on behalf of OP No.2 and filed version.

OP No.1 has stated in its version stating that, the complaint is not maintainable either in law or on facts and the same is liable to be dismissed in limine.  The complaint is false, created and concocted for one or the other reason, only to grab the money from the OP No.1.  The complaint filed by the complainant is barred by limitation and this Forum has no jurisdiction to entertain this complaint on the basis of jurisdictional point.  The allegations made in the complaint are all false.  The complainant has sworn a false affidavit before this Forum and the same is not admissible in the eye of law.  It is true that, the OP No.1 is the dealer of the Samsung TV and OP No.2 is the manufacturer of the same.  The OP No.1 has sold the TV on commission basis whatever the material supplied by OP No.2, the same has sold by OP No.1 on commission basis.  The OP No.1 is not aware of the defects found in the TV since the complainant was not informed anything regarding the same to OP No.1.  If any manufacturing defects arise in the TV, OP No.2 is responsible for the same.  This OP No.1 is only a seller of the TV but, not the manufacturer.  The allegations made in the complaint are completely false, created and concocted only for filing this complaint and hence, prayed for dismissal of the complaint against OP No.1.

OP No.2 filed written version stating that, complaint filed by the complainant is not maintainable and the same is liable to be dismissed.  Further it is submitted that, the complainant has not come with clean hands and hence, the complaint is liable to be dismissed on the same ground.  Further it is submitted that, this Forum does not have territorial jurisdiction to entertain and adjudicate the present complaint.  The answering OP submits that, their registered office is at New Delhi and if any defects found in the TV, the complainant could have file the complaint before the Delhi jurisdictional Forum.  The complainant has purchased the TV on 21.05.2016 with one year warranty which expired on 20.05.2017 and this complaint has been filed on 17.06.2017 i.e., after expiry of standard warranty period and the TV is not covered under the extended warranty period and hence on this ground, the complaint is liable to be rejected.  The allegations made in para-1 are denied as false, the same is put to strict proof of the same.  As per the documents, the customer has to approach the authorized service center only for rectification of any defects and customer is also entitled free service/free replacement of part during standard warranty period.  In this case, the warranty period already expired.  After expiry of the warranty period, the complainant has filed this complaint.  The other allegations made in para-2 to 5 are denied as false and the complainant is put to strict proof of the same.  OP No.2 further submitted that, The Hon’ble Supreme Court in Tata Engineering and Locomotive Company Ltd., and another Vs. M. Moosa 1994 (3) CPR 395 clearly held that,  the manufacturer cannot be ordered to replace the vehicle or refund its price merely because some defect appears which can be rectified or defective part can be replaced.  It is further submitted that, the Hon’ble Supreme Court in Stereocraft Vs. Monotype India Ltd.,, New Delhi (2000) NCJ (SC) 59 held that, when terms of warranty does not cover refund or replacement, then consumer cannot claim either replacement or refund during or after lapse of warranty.  Hence, prayed for dismissal of the complaint.   

 4.    Complainant has examined as PW-1 by filing affidavit evidence and the documents Ex.A-1 to A-5 got marked.  OP No.1 has examined one Sri.P. Jayaprakash as DW-1 and no documents have been produced to prove its case.  OP No.2 has examined one Sri.H.M. Madhu and relied on Ex. B-1 and B-2 documents and closed their side.  

5.     Arguments heard. 

6.     Now the points that arise for our consideration for decision of above complaint are that;

(1)  Whether the complainant proves that the OP No.2 has supplied defective TV to the complainant and committed deficiency of service and entitled for the reliefs as prayed for in the above complaint?

              (2) What order?

        7.     Our findings on the above points are as follows:-

        Point No.1:- Partly in Affirmative.

        Point No.2:- As per final order.

REASONS

8.     It is not in dispute that, the complainant has purchased one Samsung TV from OP No.1 on 21.05.2016 by paying an amount of Rs.29,500/-.   After purchasing the above said TV, some problems arisen i.e., failure of audio, screen will become blur, sometimes screen will become more flash or more powerful and other problems.  The complainant has intimated the same to OP No.1.  OP No.1 undertake to send one technical person to the house of complainant to rectify the problems found in the TV but, OP No.1 never send any technician to her house for rectification.  Again, the complainant approached the OP No.1 and informed about the problems found in the TV.  OP No.1 told that, they will sold the article whatever received from OP No.2, the manufacturer on commission basis, the problems found in the TV is only a manufacturing defects.  After that, complainant has issued legal notice to OP No.1 the same was served.  The OPs have filed their version and OP No.1 in its version stated that, they will sold the TV on the commission basis.  If any problems arisen in the TV, the customer will have to approach the manufacturer and in turn, the manufacturer also filed version stating that, the warranty period is only for one year from the date of purchase.  But the complainant has filed this complaint after expiry of the warranty period.  Hence, OP No.2 is not liable for any compensation.  The complainant has approached OP No.1 and told about the defects found in the TV within one year from the date of purchase.  As per exhibits produced by the complainant, which clearly goes to show that, the complainant has approached OP No.1 within one year from the date of purchase to rectify the problems found in the TV and the complainant has issued legal notice to the OP No.1 on 24.04.2017 which is within one year from the date of purchase of the TV as per Ex.A-1 and A-3 which clearly goes to show that, the TV purchased by the complainant from the OP No.1 was found defective within one year i.e., warranty period.  Complainant has visited the OP No.1 shop and informed about the defects found in the TV.  The OP No.1 says and given answer to the questionnaire No.11 of the interrogatories given by the complainant and stated that, when we have send the technical person to the house of complainant, the mobile Number also written at the backside of Ex.A-1.  So, all the documents clearly shows that, the complainant has approached OP No.1 well in time.  The OP No.2 has taken its contention that, the warranty period of one year is expired on 21.05.2017 but, the OP No.2 given answer to the interrogatories No.2 and as per Ex.A-2, clearly shows that, the warranty period is for two years as per Ex.A-2 ie.,1 + 1 = 2 years.  But, the defects arisen in the TV is within one year from the date of purchase.  According to the Ex.A-2, there is a defects in the TV set within one year, OP No.2 is responsible for exchange of new TV or refund of the price of the TV.  All the documents produced by the complainant clearly shows that, the complainant is having a good case and complainant has proved that, there is a deficiency of service on the part of OPs.  To prove her case, the complainant has filed a citation reported in IV (2017) CPJ 112 (Utt.chd.) in the case of Amazon Seller Services Pvt. Ltd., Vs. Gopal Krishan and others wherein it has been held that:

“……………….. Agent who sells a product is duty bound to ensure its quality, and if product is found defective, agent shall be vicariously liable for loss caused to purchaser along with manufacturer of product”

 

The decisions reported in IV (2017) CPJ 33 (NC) in the case of Force Motors Ltd., Vs. Shaik Nayu Shaik Mohiddin, and another wherein it has been held that:    

“……………….. in absence of job cards, nature of defects…………………….. subject to vehicles sold by petitioner had “defects”, falling within the ambit of definition of expression “defect” in Section in Section 2(1)(d) of C.P Act.

 

        The decision reported in IV (2013) CPJ 486 (NC) in the case of Mahendra and Mahendra Ltd., Rudra Automobiles and others Vs. Chandan Monal and others wherein it has been held that;

The manufacturer or the vehicle M/s Mahindra and Mahindra tried to explain that there was no defect in the vehicle and there is no opinion of any expert to establish any manufacturing defect.  Looking at the definition of “defect” in the C.P Act 1986 and the facts and circumstances of the case it is very clearly proved that, the vehicle in question of the defective vehicle.  It shall be futile to go into minute/extreme technicalities in order to establish whether the defects pointed out qualified to be classified manufacturing defect or not.  It is a hard fact that the consumer who is farmer was put to a lot of mental agony, harassment by the purchase of the said defective vehicle and even now, it has been stated that the vehicle laying idle and a lot of time has already been consumed between the parties.   

 

So, the contention taken by the OP No.2 that, the complainant never produced any job card about the complaint given to it.  But, the above citations states that, the job card is not necessary to indemnify the loss for the defects found in the TV purchased by the complainant. 

The citation reported in I (2017) CPJ 412 (NC) in the case of Sparrow Electronics Ltd., Vs. White Field Motors Pvt. Ltd., and another wherein it has been held that:

“Fault in AC compressor – Alleged deficiency in service – State Commission partly allowed complaint – Hence appeal – Period of almost three years lapsed when the problem faced – By the time the incident took place, warranty of already expired – Expert report concluded that there was no manufacturing defect in vehicle and also there was no safety hazard after replacement of Air conditioning system – Manufacturer has replaced the defective part of vehicle free of cost even after the expiry of warranty period – There is nothing more that is required to be done at their level – Compensation of Rs.1 lakh awarded.  

 

The OP No.2 has taken a contention in its version that, after the warranty period the complainant has complaint about the defects in the TV.  But, the above decision clearly says that, the manufacturer has to indemnify the loss found in the goods even though there is a lapse of warranty period and also awarded compensation.      

The citation reported in II (2017) CPJ 530 (NC) in the case of Ramesh Kumar Vs. Sahni Communications and Others wherein it has been held that:

“……………..District Forum has correctly ordered that, the respondent shall extended warranty of mobile for one year from the date on which earlier warranty expires and also awarded compensation of Rs.3,000/-”

The citation reported in IV (2013) CPJ 612 (NC) in the case of Malwa Automobile Pvt. Ltd., Vs. Sunanda Sangwan and another wherein it has been held that:

“…….Failure to remove defects – deficiency in service - expert opinion – replacement or refund of amount sought – District Forum allowed complaint – State Commission dismissed appeal” 

 

9.   We have gone through the entire documents filed by the complainant, OP No.1 and 2.  According to the complainant, she purchased Samsung TV from OP No.1 on 21.05.2016 by paying a sum of Rs.29,500/- manufactured by  OP No.2.  At the time of purchasing the TV, OP No.1 has issued a bill and warranty card to the complainant.  Ex.A-2 is the warranty card, which clearly shows that, the warranty is of two years not for one year.  According to the OP No.2 warranty period is of one year, which is not correct.  According to the Ex.A-, the warranty period is of two years i.e., 1 + 1 = 2 years.  The complainant has approached OP No.2 within one year from the date of purchasing the TV.  The defects found in the TV is within one year and the exhibits produced by the complainant clearly shows that, the OP No.1 and 2 have jointly sold the defective TV to the complainant both are jointly and severally responsible to solve the problems.  The OP No.2 has produced one document, the same has been marked as     Ex.B-1 as per the conditions mentioned produced at Ex.B-1 which is different from Ex.A-2, the same is also issued by the OP No.1 which is supplied by OP No.2.  The decisions submitted by the OP No.1 in this case is not applicable to the case on hand.  The citations given by the complainant are quite applicable to the facts of the case on hand.  Hence, the OPs are jointly and severally committed a deficiency of service.  Accordingly, this Point No.1 is held as partly affirmative to the complainant.

          10.     Point No.2:- As discussed on the above point and for the reasons stated therein we pass the following:-

 

ORDER

 

The complaint filed by the complainant U/s 12 of CP Act 1986 is partly allowed.

It is ordered that, the OP No.2 is hereby directed to replace new Samsung TV of the same price within 15 days from the date of this order.  If fails to replace the same, the OP No.2 is hereby directed to return the price of the TV i.e., Rs.29,500/- to the complainant along with interest at the rate of 9% p.a from the date of purchase.  OP No.1 is hereby directed to cooperate the complainant to recover the same from OP No.2. 

It is further ordered that the OP No.2 is hereby directed to pay a sum of Rs.10,000/- towards mental agony and Rs.5,000/- costs of the proceedings.

            (This order is made with the consent of Member after the correction of the draft on 29/12/2017 and it is pronounced in the open Court after our signatures)         

 

                                     

 MEMBER                                                   PRESIDENT

-:ANNEXURES:-

Witnesses examined on behalf of Complainant:

PW-1:  Complainant by way of affidavit evidence.

Witnesses examined on behalf of OPs:

DW-1:  P. Jayaprakash by way of affidavit evidence.

DW-2:  H.M. Madhu by way of affidavit evidence.

Documents marked on behalf of Complainants:

01	Ex-A-1:-	Tax Invoice dated 21.050.2016
02	Ex-A-2:-	Warranty Card
03	Ex-A-3:-	Legal Notice dated 24.04.2017
04	Ex-A-4:-	Postal Receipt
05	Ex-A-5:-	Postal Acknowledgement

 

Documents marked on behalf of OPs:

01	Ex-B-1:-	Letter of authorization
02	Ex-B-2:-	Warranty card

 

 

MEMBER                                                            PRESIDENT

Rhr**