DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION (CENTRAL)ISBT KASHMERE GATE DELHI

COMPLAINT CASE NO. 418/2016

No. DC/ Central/

vs.

Coram:       Ms. Rekha Rani, President

                    Shri Vyas Muni Rai, Member

                   Ms. Shahina, Member (Female)

ORDER

Shri Vyas Muni Rai, Member

1.  The present complaint has been filed by Sh. Dinesh Kumar Premi (in short the complainant) as per Consumer Protection Act 1986 against -1. M/s Toshiba India Pvt. Ltd through Manager Head office Delhi (in short OP1) and 2. M/s Toshiba Appliances Co. Pvt. Ltd. through Manager, Karol Bagh, Delhi (in short OP2) having addresses given above. However, OP2 was deleted from the array of the parties on 24.11.2017. Brief facts of the case are that the complainant had purchased Toshiba Television (TOSHIBA 55L2400VM, 139.7 CM (55’’) FULL HD LED Television through www.snapdeal.com for his personal use. The said television set was purchased for the total price of Rs. 51,453.33/- (fifty one thousand four hundred fifty three rupees and thirty three paises only) on equated monthly installment (EMI) of Rs. 5,100/-(five thousand one hundred rupees only). The amount of which, as per the complainant was being paid regularly as per EMI through his HDFC credit card.
2. To move further, complainant was not satisfied with the performance of the said television from the very beginning and he was facing various problem while using the above said product and the performance of the same was not up to the mark or as expected and he faced problems like mal-functioning of Audio/ speaker and screen related issues as alleged. Thereafter, the complainant made call to the customer care helpline of OP1 on 09.06.2016 which was duly registered. However, as mentioned in the complaint, no positive action was taken by OP except simply fulfilling the formalities and customer care executive of OP visited house of the complainant. However, on 23-24/06.2016 complainant had received call of a technician who visited his house and inspected the television set and reported that same cannot be repaired and needs to be replaced as the television was with warranty period. Technician of the OP also informed that defective part is not available in market/ with company and hence same was required to be imported  from China and Japan. It has been further alleged by the complainant that the technician of the OP told that as and when the defective part will be available the same shall be delivered to the complainant’s house for repairing but it was never done. Thereafter, as alleged by the complainant numerous calls to the customer care of the OP were made without yielding any result. It is also the case of the complainant that product purchased by him was extremely of sub-standard quality as it had stopped functioning frequently and finally it stopped working permanently. Display of the screen of the television set was also without audio as alleged.
3. The aforesaid defects were neither repaired nor replaced by the OP which necessitated the complainant to send the legal notice to the OP which was not replied as alleged.
4. In view of the aforesaid facts and circumstances, the complainant has pleaded deficiency in service on the part of the OP as defined in the Act and the instant complaint has been filed by the complainant with the following prayer:-

1. The Opposite Parties to replace the faulty television with new one with assurance that no technical problem shall ever arose of such kind in future or refund the amount already being paid to them with interest of 12% since date of purchase of the television.
2. The Opposite Parties to pay a sum of Rs. 2 Lacs towards harassment, mental agony, deficiency in services and for adopting unfair trade practices.
3. The Opposite Parties to pay a sum of Rs. 50,000/- towards litigation expenses to the complainant; and
4. Any other order in favour of the complainant as this Hon’ble Forum may deem fit, in the interest of justice and equity.

5. In reply/ Written Statement filed on record, OP has denied the allegation of deficiency in service etc. against it and has stated that the complaint of the complainant is false, baseless and filed with a malafide intention. However, it has been admitted by the OP about the purchase of the LED TV under reference by the complainant with a three year warranty scheme. It has been further alleged in the reply of the OP that after using the LED TV under reference for a period of 7 months approximately, complainant registered a complaint with the call centre of OP1 qua sound and display issue and his complaint was duly addressed by the technical team of OP1 nor rectify the complaint. It is further the case of OP1 that after inspecting the problem of LED TV it was informed to the complainant that Main PCB Board of LED TV was required to be replaced. It was also informed to the complainant by the OP1 that the said PCB Panel was not readily available with the OP1 and availability of the same may take some days. On this, the complainant agreed to the same responded to OP1 to replace the Main PCB Board of the LED TV and after availability of the said Main PCB Board, complainant was contacted and same was replaced on 21.06.2017. It is also the case of the OP1 that after the replacement of the said Main PCB Board, LED TV became functional and the said complaint was closed to the satisfaction of the complainant.
6. However, in para 6 of the reply of OP on merit/ parawise, it has been stated, inter alia, that the service team of the LED TV visited the premises of the complainant on 21.06.2016 and replaced the said PCB Board of LED TV and thus, the TV was functional and complaint was closed. This averment of the OP in Para 6 of the reply on merit seems to be in contradiction of the averment made in the para 9 of the preliminary objections wherein, it has been stated about the replacement of PCB Board on 21.06.2017. Rest of the allegations made in the complaint has been denied by the OP. OP has further denied about receipt of any legal notice from the complainant. And, at last, OP has prayed in its reply about the dismissal of the complaint with cost.
7. We have also perused the contents of evidence filed by way of affidavits and written arguments of both the parties available on record but the contents of the same are incorporation of the facts and submissions of the parties as mentioned in the body of the complaint and reply/ Written statement available on record. However, no new facts or averments have been made in the Written Arguments and the Affidavits for evidence filed by the parties on record.

8.   To travel further, we would like to refer  a judgment dated 31.03.2016 delivered by National Commission  in case of M/s Honda Siel Cars India Ltd. vs. Rohit Jain and Anr. wherein, inter alia, the Commission has given the observations as under:-

“17. The spare parts even in discontinued models, have to be made available at least for a period of ten years from the date of discontinuation. In the present case, undisputedly the engine of car in question was not available with the petitioner, even within five years of the sale thereof. As per petitioner’s own case, engine was not available since April, 2003, though the car was purchased on 01.12.2002. Thus, it is a clear deficiency in services…...”

9. In the para 18 of aforesaid judgement of Honda Seil Cars India Ltd., the Hon. NCDRC has also cited another case which is being quoted as under:-

“18. ……The Delhi State Commission in appeal case No. A711/2004 on 19.11.2007 titled as “Rajesh Tyagi vs. Tata Motors & Ors. “ had very well expressed their views that concept of warranty is limited to the extent of putting the liability of the consumer to pay for the charges for the repairs conducted after warranty period but it does not absolve the manufacturer and the service provider form the liability of having sold defective vehicle and it was to calculate high standard of quality of goods and services, that the Legislature brought the Consumer Protection Act on the statute book by defining the word “defect” in section 2(1) of the Act shows that, “any kind of fault or imperfection or short coming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or under contract express or implied or is claimed by the trader in any manner whatsoever in relation to any goods.”. And Hon’ble State Commission had opined thus, whenever manufacturer of the vehicle offers to sell a brand new vehicle to the consumer, there is an implied contract to the claim of the manufacturer that vehicle being sold by it does not suffer from and will not suffer from any kind of fault or imperfection or shortcoming in the quality, quantity, potency and standard which is required to be maintained……”

In para 20 of the said judgement, it has been further observed that:-

“20. It is the settled position of the law that if the vehicle cannot be replaced, the price of the vehicle can be considered for refund. In the case in hand, the appellant in its written statement in para 9 has very candidly and categorically admitted that the Production of the car has been stopped 5 years ago and no such engine is in stock and the entire engine has to be imported from Japan in part, in case it is available. In such situation, the cost of the vehicle can be refunded under Consumer Protection Act and District Forum has directed for the refund of the entire cost of Rs. 14,35,000/-.”

10. In another case titled Sony India Private Limited vs. Surinder Singh, the State Consumer Disputes Redressal Commission, Punjab at Chandigarh vide its judgement dated 18.10.2010,  dealing with facts of the case as under:-

“2. Brief facts of the case are that the complainant had purchased one Sony Colour Television/Audio System Model MHC-RV-8 bearing serial No. 0503661 on 30.04.2003 from respondent No. 2 (hereinafter called ‘respondent No.2’) by paying Rs. 32,550/- after obtaining finance from M/s Bajaj Auto Finance Ltd., Jalandhar. On the next day i.e. 01.05.2003 the abovesaid system became defective. It was sent for repair on 02.05.2003 and received back on 04.05.2003. After 12 days the system again became defective. On 16.05.2003, respondent No. 2 got the said defective system for repairs and returned on 28.05.2003 after repairs but the same was not working. Complainant alleged that there was manufacturing defect in the system and the same cannot be set-right after two attempts of repair. It was prayed that there was deficiency in service and it was unfair trade practice on the part of the appellant and respondent No. 2 and claimed Rs. 60,000/- in total as compensation for mental tension, harassment and financial loss etc. due to supply of the defective Television/ Audio system from the appellant as well as from respondent No.2.”

The Hon. State Commission held that- “11….we hold that since the defect developed within the warranty period, the consumer was entitled to replacement on the TV set or its price from the appellants and respondent No. 2.”

In light of the facts and judgements refd. above we find that facts and circumstances of the instant complaint filed by Mr. Dinesh Kumar Premi against M/s Toshiba India Pvt. Ltd. are similar and identical.

11. To conclude, in our view forcing the consumer to seek legal remedy aggravates the mental agony and harassment is in itself a deficiency in service. No person/ consumer would volunteer to pursue litigation continuously for years if the grievance is not justified.
12. We have gone carefully the documents/ submissions available on record, oral submissions of the parties and judgement referred above etc., we direct to OP as under:-

1. To replace the defective television set with new one or refund the cost of the television set i.e. Rs. 51,453.33/- paid by complainant to OP along with 6% p.a. interest from the date of filing of the complaint till realization. In case the defective television set under reference is replaced with a new one by the OP, the complainant is directed to hand over the old TV set to the OP.

2. OP is also directed to pay Rs. 10,000/- to the complainant as compensation for mental harassment and deficiency in service.

3. We also award Rs. 5,000/- as litigation expenses to be paid to the complainant by OP. The aforesaid directions/ award is to be complied with by the OP within 30 days from the date of receipt of this order.

13. Copy of this order be sent to the parties as per rules. File be consigned to record room.

Announced on this 26^th September of 2022.