BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,
ERNAKULAM.
Date of filing : 23/02/2011
Date of Order : 29/02/2012
Present :-
Shri. A. Rajesh, President.
Shri. Paul Gomez, Member.
Smt. C.K. Lekhamma, Member.
C.C. No. 104/2011
Between
Shaji. S., S/o. T.K. Sukumaran, | :: | Complainant |
Thykkoottathil House, Kadakkarappally. P.O., Cherthala, Alappuzha (Dist), Pin – 688 529 |
| (By Adv. George Cherian, Karippaparmabil Associates Advocates, H.B. 48, Panampilly Nagar, Cochin – 682 036) |
And
1. M/s. Audio Plus, | :: | Opposite Parties |
A1 & A2, Giriraj Industrial Estate, Mahakali Caves Road, Andheri (East), Mumbai - 400 093. 2. Sangeeth Mahal Musicals, H.O. 59/1451, 52, Saikrishna, Ravipuram Road, Kochi – 16. |
| (Op.pty 1 by Adv. Vipin P. Varghese, M/s. V.J. Mathew & Co., International Law Firm, Manikkiri Cross Road, Pallimukku, Cochin – 16) Op.pty 2 by Adv. K.T. Shyam Kumar, 42/1934, Opp. Link Manor Flats, Old Railway Station Cross Road, Kochi - 16) |
O R D E R
A. Rajesh, President.
1. Briefly stated, the case of the complainant is as follows :
The complainant purchased a Korg M -50 key board on 09-09-2010 and a Cube PM on 13-11-2010 from the 2nd opposite party which were manufactured by the 1st opposite party at a price of Rs. 48,000/- and Rs. 7,500/- respectively. Within a couple of days of purchase, the key board became defunct. The complainant entrusted the key board with the 2nd opposite party for its repairs. The 2nd opposite party repaired and returned the same within 3 weeks. Again within a few weeks, the key board went out of order. At that juncture, the complainant approached the 2nd opposite party to replace the key board with a new one. The 2nd opposite party collected the key board on 10-12-2010 and agreed to replace the same within 2 weeks. Since, there was no response on the part of the 2nd opposite party on 14-01-2011, the complainant issued a notice to the opposite parties requesting them to replace the key board, but there was no response. The key board suffers from manufacturing defect. The complainant is entitled to get refund of the price of the gadget with interest together with compensation and costs.
2. The version of the 1st opposite party :
The 1st opposite party is only a distributor and dealer of KORG products in India, KORG INC, 4015-2 Yanokuchi, Inagi City, Tokyo 206 0812, Japan is the manufacturer of the key board. This complaint is barred by non-joinder of the manufacturer. In January 2011, the 1st opposite party received the mother board of the key board from the 2nd opposite party for replacement and/or repair. The mother board was repaired and sent to the 2nd opposite party on 04-02-2011. The complainant had not bothered to collect the key board from the 2nd opposite party after the 1st opposite party had repaired the same. The complainant is not entitled to get any of the reliefs against the 1st opposite party.
3. The defense of the 2nd opposite party :
The 2nd opposite party is an authorised dealer of KORG products in Kerala. The warranty for the key board is issued by the 1st opposite party. On 27-09-2010, the complainant had entrusted the key board for repair and the defect was rectified. Thereafter on the second time, the 2nd opposite party had sent the key board for repair to the 1st opposite party. The 1st opposite party replaced the DM board of the key board which is the major part of the same. Though the matter was intimated to the complainant, he was not ready to take back the same. The key board is free from any defects. The complaint s liable to be dismissed.
4. The complainant was examined as PW1 and Exts. A1 to A7 were marked on his side. The witness for the 1st opposite party was examined as DW1 and Exts. B1 to B5 were marked. The 2nd opposite party was examined as DW2. Heard the counsel for the parties.
5. The points that came up for consideration are :-
Whether the complainant is entitled to get refund of the price of the key board?
Whether the opposite parties are liable to pay compensation and costs of the proceedings to the complainant?
6. Point No. i. :- Admittedly on 09-09-2010, the complainant purchased a key board from the 2nd opposite party at a price of Rs. 48,000.01 evidenced by Ext. A1 retail invoice. Exts. A4 and A5 vouchers go to show that the 2nd opposite party had accepted the key board twice for its repairs on 28-09-2010 and 10-12-2010. The 2nd opposite party who was examined as DW2 admitted during evidence that at the outset, he had replaced the key board and on the second occasion, he sent the key board to the 1st opposite party and they again replaced the mother board. The repeated recurring defects of the key board that too within the warranty period would go to show that the same suffers from inherent manufacturing defect.
7. The 1st opposite party maintains that they are only the distributor of Korg products in India. We cannot agree with the said contention of the 1st opposite party especially since the warranty of the key board has been provided by the 1st opposite party evident from Ext. A2 warranty card. The plea of the 1st opposite party speaks volumes. It is pertinent to note that neither the 1st opposite party nor the 2nd opposite party did send any reply to Ext. A6 notice issued by the complainant, which was received by them by Ext. A7 acknowledgment cards for reasons of their own not controverted. According to the Hon'ble National Consumer Disputes Redressal Commission, a frustrated consumer is entitled to get refund of the price of the gadget (Sony Ericsson India Ltd. Vs. Ashish Aggarwal (IV (2007) CPJ 294 (NC) ). In the above circumstances, the opposite parties are contractually and legally liable either to replace the key board with a new one according to the choice of the complainant or to refund the price of the gadget with interest. The claim of the complainant for the Cube PM 102 cannot be sustained in law, since it is free from any defects.
8. Point No. ii. :- Since the primary grievance of the complainant having been met squarely, order for compensation and costs are not called for.
9. In the result, we partly allow the complaint and direct as follows :
The opposite parties shall jointly and severally replace the key board of the complainant with a new one of the same price according to the choice of the complainant OR the opposite parties shall jointly and severally refund the price of the key board to the complainant together with interest @ 12% p.a. from the date in Ext. A1 till payment.
The opposite parties are at liberty to choose either of the above directions in order not to further unnecessary litigation hereafter.
The opposite parties may retain the defective key board with them.
The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.
Pronounced in open Forum on this the 29th day of February 2012
Sd/- A. Rajesh, President.
Sd/- Paul Gomez, Member.
Sd/- C.K. Lekhamma, Member.
Forwarded/By Order,
Senior Superintendent.
A P P E N D I X
Complainant's Exhibits :-
Exhibit A1 | :: | Copy of the retail invoice dt. 09-09-2010 |
“ A2 | :: | Warranty card |
“ A3 | :: | Copy of the retail invoice dt. 13-09-2010 |
“ A4 | :: | Copy of the repair voucher dt. 27-09-2010 |
“ A5 | :: | Copy of the repair voucher dt. 10-12-2010 |
“ A6 | :: | Copy of the letter dt. 14-01-2011 |
“ A7 | :: | An acknowledgment card |
Opposite party's Exhibits :-
Exhibit B1 | :: | Specific Power of attorney |
“ B2 | :: | E-mail dt. 20-12-2010 |
“ B3 | :: | Certificate dt. 03-01-2011 |
“ B4 | :: | A receipt dt. 04-02 |
“ B5 | :: | An invoice dt. 04-02-2011 |
Depositions :- |
|
|
PW1 | :: | Shaji. S. - complainant |
DW1 | :: | Lincoln Jacinto – power of attorney holder of the 1st op.pty |
DW2 | :: | Srikumar A.V - witness of the 2nd op.pty |
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