Complainant Rajiv Kumar has filed the present complaint U/S 12 of the Consumer Protection Act, 1986 (hereinafter for short the Act) for issuance of the necessary directions to the opposite parties to replace his LED with new one and he also seeks directions to make payment of Rs.50,000/- on account of mental agony, harassment and pain alongwith Rs.10,000/- as litigation expenses to him, in the interest of justice.
2. The case of the complainant in brief is that on 29.01.2018 he had purchased a LED model KLV-40R352E from opposite No.1 after payment of Rs.40,000/-. It is pleaded by the complainant that he bought the said LED to his house and kept the same packed as opposite party No.1 given assurance to him that some employee of opposite party No.2 will install the same in his house in a day or so. It was also pleaded by the complainant that after two days an employee of opposite party No.2 came to his house and at that time he, his wife and his one friend namely Balram S/o Sham Lal, R/o Main Bazar, Diananagar were present at his house and employee of opposite party No.2 opened the packed LED in their presence and at the time of installing the same he observed that there was crack on the screen of the LED and he asked the complainant to get it replaced from the opposite parties. It was again pleaded by the complainant that he approached the opposite party No.1 time and again with the request to replace his LED with new one as the same was in warranty period and opposite party No.1 gave assurance for replacing the same but till today they failed to do so and intentionally delayed the matter without any reasonable cause and when complainant finally approached the opposite party No.1 a few days back, opposite party No.1 flatly refused to replace the LED in question and told the complainant that the same can be replaced by opposite party No.2. It was further pleaded by the complainant that opposite parties intentionally did not replace the LED though the same was in warranty period and harassed him on one pretext or the other and there was deficiency in service and unfair trade practice on the part of the opposite parties, hence this complaint.
3. Opposite party No.1 appeared through its counsel and filed its written reply by taking the preliminary objections that complainant has filed the false and frivolous complaint with the intention to harass the opposite parties. Complainant has not approached to this Hon’ble Forum with clean hands and has concealed the material facts intentionally and deliberately and the present complaint is not maintainable as complainant has no cause of action to file the present complaint. On merits, it was admitted that complainant had purchased the LED from opposite party No.1. It was stated that LED in question was properly checked by the complainant at the time of its purchase and he also checked its picture quality and compared the same to the LEDS of other quality like Samsung and LG etc. It was also stated that when an employee of the company visited the house of the complainant no person was present at that time at his house like Balram Singh etc. as alleged by him and LED was also not in packing condition and the same was already opened by the complainant before visit of the employee of the company. It was again stated that answering opposite party i.e. No.1 is the dealer of opposite party No.2 and opposite party no.2 is the manufacturer of the product in question. Opposite party No.1 informed the opposite party no.2 about the complaint of the complainant. Moreover, the defect in the LED in question was not covered under warranty as the company has given the warranty only upto the extent of electronics parts of the product in question. It was further stated that opposite party No.1 is the dealer of opposite party No.2 and the question of assurance of replacement on the part of opposite party No.1 does not arises. All other averments made in complaint have been denied and lastly prayed for dismissal of the complaint.
4. Opposite party No.2 appeared through its counsel and filed its written reply by taking the preliminary objections that as per record of the Company one Sony BRAVIA KLV-40R352E IN5 having serial no.4546302 purchased by the complainant on 29.01.2018 for Rs.40,000 from opposite party no.1 after a detailed demonstration of the features and functions alongwith the detailed explanation of all the warranty terms and conditions of the aforesaid product. It was stated that opposite party no.2 provides a limited warranty of the one year on its products from the time of its original purchase and cannot be liable for the claims falling outside the scope of the warranty. It was also stated that complainant after purchasing the said TV approached the service centre for installation of the same and upon approaching the complainant’s place, service centre found the panel of the TV damaged and they further observed that TV in question is Non Sony India product. It was again stated that the warranty terms clearly says that In-Warranty services are only applicable if the product is marketed by Sony India but the TV in question purchased by the complainant was not marketed by the Sony India Pvt. Ltd. It was further stated that the seller (OP No.1) is not in the authorized list of Sony India Pvt. Ltd. and the product in question i.e. TV was in a physically damaged condition with broken panel due to which the same could not be covered under warranty of the Company. On merits same averments of the preliminary objections repeated by the opposite party No.2. All other averments made in complaint have been denied and lastly prayed for dismissal of the complaint withy cost.
5. Counsel for the complainant has tendered into evidence affidavit of complainant Ex.C1 alongwith other documents Ex.C2 and Ex.C3 and closed the evidence of complainant.
6. Counsel for the opposite party no.1 has tendered into evidence affidavit of Sh.Ajay Kumar Ex.OP-1/A alongwith document Ex.OP-1 terms and conditions and closed the evidence on behalf of opposite party no.1.
7. Counsel for the opposite party no.2 has tendered into evidence affidavit of Sh.Priyank Chauhan Ex.OP-2/A alongwith documents Ex.OP-2/1 and Ex.OP-2/2 and closed the evidence on behalf of opposite party no.2.
8. We have carefully gone through the pleadings of counsels for the parties; arguments advanced by their respective counsels and have also appreciated the evidence produced on record with the valuable assistance of the learned counsels for the purposes of adjudication of the present complaint.
10. Ex.C-2 is the invoice whereby the complainant purchased one Sony LED KLV40-352E for a sum of Rs.40,000/- on 29.1.2018 from opposite party no.1. The case of the complainant is that after two days of the said purchase, when an employee of the company i.e. opposite party no.2 visited the premises of the complainant to install the said LED, at that time the complainant, his wife and one friend Sh.Balram were present in the house. When the employee opened the box and was just about to install the LED, it was observed that there was a crack on the screen of the said LED and the employee told the complainant to get the LED replaced from the opposite party. When the complainant contacted the opposite party no.1 to replace the said LED, at first the opposite party kept on lingering on the matter and ultimately refused to replace the LED which amounted to deficiency in service on the part of the opposite party.
9. Whereas the plea taken by opposite party no.1 is that it is incorrect that the complainant’s wife and his friend were present at home when the employee of the opposite party’s visited the house of the complainant. It is further denied that the employee of the opposite parties opened the packing of the LED in the presence of the abovesaid persons. It is further denied that when the employee was to install the LED, he observed that there was a crack on the screen of the LED and he told the complainant to get it replaced from the opposite party. In fact of the matter is that the complainant properly checked the LED at the time of purchase and he also checked the picture quality of the LED and compared the same with LEDS of other quality like Samsung and LG etc. when the employee of the company visited the house of the complainant, the LED was not in a packed condition. The packing had already been opened by the complainant before the visit of the employee of the company. Moreover, the defect of the LED in question is not covered under warranty as the company gives warranty upto the extent of electronic parts of the product in question.
10. As per condition No.3 of the terms and condition of Ex.C-3 placed on record by the complainant and Ex.OP-1 placed on record by opposite party no.1, “the warranty shall not cover any damages resulting from un-authorized adaptation or adjustment to the product”. As the said LED is not covered under warranty and opposite parties cannot be said to be deficient in service.
11. Today, during the course of arguments, the counsel for the complainant produced two judgments but after going through the same, it was observed that these two judgments are not relevant. The complainant could have made a video when the employee of the opposite party opened the packing in order to install the LED, to prove that the LED in question was in a duly packed condition or he should have got in writing from the employee that said product was in a duly packed condition when he came to install the LED but on opening the same, the screen of the LED was found cracked which the complainant failed to do. Hence, no deficiency in service can be attributed on the part of the opposite parties.
12. As an upshot of aforesaid discussion, it is observed that the complainant has failed to prove his case and the same is hereby dismissed with no order as to costs.
13. Copy of the order be communicated to the parties free of charges. File be consigned.
(Neelam Gupta)
President
Announced: (Jyotsna)
July 14 2021 Member
*MK*
