PRESENT : Sri. P.C. PAULACHEN, M.Com, LLB : PRESIDENT
Smt. PRIYA.S, BAL, LLB, MBA (HRM) : MEMBER
Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER
Friday the 25th day of March 2022
C.C.8/2017
Complainant
Dr. Jibin Jose Tom
S/o. Thomas
Puthen Parambil
Kottiyoor .P.O
Thalassery, Kannur – 670 651
Present Address
‘Vrindavan’
Manjody,Thalassery
Kannur – 670 103
(By Adv. Sri. A.B. Rajeev)
Opposite Parties
- M/s. Reliance Retail Limited
Reliance Digital, Focus Mall
Kasaba, Kozhikode – 673 002
(By Adv. Sri. Musthafa .V.M and Adv. Sri. Mintoob Chand. K)
- M/s. Samsung India Electronics Private Ltd.
39/1939-C, Ist Floor
Thomson Chambers
Pallimukku Junction, Kochi
(By Adv. Sri. Manimangalath Sameer Babu)
ORDER
By Sri. V. BALAKRISHNAN – MEMBER
This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.
- The case of the Complainant, in brief, is as follows:
The complainant is a Maxillofacial Surgeon. He contacted the first opposite party to purchase a TV set. The first opposite party told him that the TV manufactured by the second opposite party was of good quality and provided excellent after sales service. Accordingly, on 29/10/2016 the complainant visited the premises of the first opposite party and purchased a Samsung LED TV 81 cm. It was assured by the dealer that the TV was of good quality and in the event of any defect, it would be taken back with repayment of full price. When the complainant received the box containing the TV, the name ‘Bhaskaran’ was written on it. When he enquired about the same, the official of the first opposite party stated that the name had no significance and assured that the TV was a fresh piece and not to be confused with the name written on the box.
3. On 15/11/2016 the complainant connected the TV to a cable TV connection. But there was no picture. The cable operator checked the Set-top box and the cable supply and ensured that the cable supply was perfectly in order. But the TV was not displaying any picture. The cable operator informed that the TV set was defective.
4. The complainant then contacted the customer care service of second opposite party and made a complaint to the opposite parties. The service engineer of Samsung inspected the TV on 15/11/2016 and stated that the mother board of the TV had some defects and that the TV set would be replaced with a new one. As directed, the complainant contacted the second opposite party over the toll free number and demanded the replacement of the TV with a new one or refund of the price paid. The complaint was registered as No. 4225584747, but nobody turned up thereafter.
5. After two days, the complainant contacted the customer care number and asked for the phone number of senior officers. Accordingly the complainant called Mr. Sujith, Senior Supervisor, who surprisingly asked as to whether the name ‘Bhaskaran’ was seen on the box of the TV. When the complainant answered in the affirmative, he was asked to send a photo of the box and the serial number of the TV by e-mail. The photo and the serial number were sent to him in his e-mail address. The said officer had promised to replace the TV with a new one. But thereafter nothing was done till date.
6. When the complainant talked to the official of the second opposite party Mr. Vivek, it was understood that the first opposite party had sold a defective TV to him which was earlier sold to one Bhaskaran, and the set was one which Mr. Bhaskaran had returned as defective. The complainant had recorded the said telephone conversation. The first opposite party sold a second hand/used TV with defects to him and thereby cheated him. The defect seen is a manufacturing defect.
7. The complainant purchased the TV specially to see the tournaments and sports especially the Badminton tournament of P.V. Sindhu, who is his friend. Being a fan of P. V. Sindhu, he had purchased the TV for seeing particularly Sindhu’s game. As the TV was defective he could not see the programmmes. The complainant and his family could not see the programmes for several weeks. Though the complaint had been registered on 15/11/2016, till date the opposite parties have not taken any steps to replace the TV or respond properly. The failure on their part amounts to deficiency of service and unfair trade practice. The complainant was put to much mental and physical strain, stress and hardship.
8. On 20/12/2016 the complainant issued a lawyer notice to the opposite parties seeking refund of the purchase price of the TV and compensation of Rs.2,00,000/-. Though the notice was served on them, no reply was sent. The opposite parties are jointly and severally liable. Hence the complaint for refund of the price of the TV amounting Rs.23,932/- and compensation of Rs.2,00,000/- along with the cost of the proceedings.
9. The opposite parties resisted the complaint by filing version separately.
10. The contentions, in brief, of the first opposite party are as follows: The first opposite party is only a retailer of the products manufactured by Samsung India Electronics Private Limited. There is warranty of two years for the TV set sold to the complainant. All complaints and service related problems during the warranty period have to be attended by the authorised service centre of the second opposite party. The alleged defect has occurred during the warranty period. The allegation that the first opposite party sold a defective TV which was earlier sold to one Bhaskaran and that the set was one that Bhaskaran had returned as defective is false and hence denied. The first opposite party sold only the product which was given as quality checked with the warranty of the second opposite party. If any product was returned as defective, it will be replaced by the second opposite party at the showroom of the first opposite party. The averment that the employees of the second opposite party had promised to replace the TV with a new one is not known to the first opposite party. The TV has no manufacturing defect. If at all it has any such defect, the second opposite party alone is liable. The defect alleged by the complainant cannot be determined without proper examination by an appropriate laboratory. There was no deficiency of service or unfair trade practice on the part of the first opposite party. No loss has been caused to the complainant by the act of the first opposite party. The claim is only an avaricious one. It is, therefore, prayed to dismiss the complaint with costs.
11. According to the second opposite party, as per the records of the company, the complainant purchased a TV set manufactured by them by paying a price of Rs.Rs.23,931/-. After the purchase, the complainant came to see one Bhaskaran’s name written on the box. Immediately, he approached the dealer who told that the set was a fresh one and hence he started to plug in, but no picture was seen. On 15/11/2016 the complainant contacted the service centre and one technician inspected the unit and found defect in PBA which needed replacement. The customer demanded replacement of the TV which was not approved. On a detailed inspection, it was found that the said unit had already a repair service history. The said unit had already been sold to another person by the dealer and since it became defective, the previous customer returned the same to the dealer. Subsequently the said defective unit might have been again sold by the dealer to the complainant. In such circumstances, the dealer alone is responsible for the sale of the defective unit and the manufacturer is not at all responsible. The manufacturer is an unnecessary party to the proceedings. The service centre was ready to render better service within the scope of the warranty, but the complainant was not ready for that demanding replacement. There was no deficiency of service or unfair trade practice on the side of the second opposite party. With the above contentions, the second opposite party also prays for dismissal of the complaint.
12. The points that arise for determination in this case are:
(1) Whether there was any unfair trade practice or deficiency
of service on the part of the opposite parties, as alleged ?
(2) Reliefs and costs.
13. Evidence consists of the oral evidence of PW1 and Exts. A1 to A7 on the side of the complainant. The opposite parties did not adduce any evidence.
14. Heard both sides.
15. Point No.1 : The complainant has approached this Commission seeking refund of the price of the TV and compensation of Rs.2,00,000/- for the mental agony, stress and strain suffered on account of the unfair trade practice and deficiency of service on the part of the opposite parties. The grievance of the complainant is that the opposite parties has sold a defective TV set to him as a brand new one which was once sold to another person and returned by him as defective.
16. In order to substantiate his case, the complainant got himself examined as PW1. PW1 has filed proof affidavit and deposed in terms of the averments in the complaint. PW1 has deposed that when he received the box containing the TV, the name ‘Bhaskaran’ was seen written on it and the officials of the first opposite party said that he need not bother about the same and the TV set inside was a fresh one. But when plugged in, the TV was not functioning and no display of picture in the TV. He registered a complaint and he was told by the Senior Supervisor of the manufacturer after verifying the photo of the box and the serial number of the TV that the TV would be replaced with a new one. He also understood from another official that what the first opposite party had sold to him was a defective TV set which was earlier sold to one Bhaskaran and the set was one which Sri. Bhaskaran had returned being defective one.
17. Ext. A1 is the copy of the bill dated 29/10/2016 issued by the first opposite party. Ext. A1 shows that Samsung TV was purchased by the complainant on that day paying Rs.29,931.50/-. The purchase of the said TV by the complainant is not disputed by the opposite parties. It is also not seriously disputed that when plugged in, the TV was not displaying picture. Admittedly, the complainant had promptly registered a complaint in this regard with the opposite parties.
18. The definite case of PW1 is that the TV set supplied to him by the first opposite party was a second hand/used one. The version filed by the second opposite party supports the allegation of the complainant. It has come out in evidence that the name ‘Bhaskaran’ was written on the box containing the TV. The second opposite party also accuses the first opposite party of selling a second hand TV set to the complainant under the guise of a brand new one. The definite allegation of the second opposite party is that as per the service history, there is a previous customer for the same TV by name Bhaskaran. As per the service history, the same unit had already been sold to Mr. Bhaskaran on 28/04/2016 and the same was installed on 29/04/2016. The said TV unit was brought to the service centre for repair on 01/05/2016 by Mr. Bhaskaran. The complainant herein purchased the set TV unit on 29/10/2016. The second opposite party states that the dealer had previously sold the same unit to Mr. Bhaskaran before selling the same to the complainant and the dealer alone is responsible for this.
19. As per order in IA 413/2017 the second opposite party was directed to produce the service history pertaining to the said TV pursuant to which Ext. A7 statement was filed by the second opposite party. In Ext. A7 also the second opposite party has disclosed that the first opposite party had previously sold the TV set in question to Mr. Bhaskaran before selling the same to the complainant herein. Thus Ext. A7 also lends support to the allegation that the TV sold to the complainant was a second hand/used TV. Ext. A7 is not assailed by the first opposite party. The first opposite party did not adduce any evidence. None of the officials of the first opposite party did enter the box.
20. There are also other circumstances which point at the guilt of the first opposite party. The name ‘Bhaskaran’ appeared in the box handed over to the complainant. This is not seriously disputed by the first opposite party. The first opposite party has no explanation as to how the name ‘Bhaskaran’ happened to be there on the box. The first opposite party has no case that when the TV was received by them from the manufacturer for sale, the name ‘Bhaskaran’ was there on the box. The fact that the name ‘Bhaskaran’ was written on the box coupled with Ext. A7 document and the contentions in the version of the second opposite party, would lead to the conclusion that the TV in question was previously sold to Mr. Bhaskaran before selling to the complainant and Mr. Bhaskaran had returned the set to the dealer due to defect. Further it may be noted that the complainant issued Ext. A2 lawyer notice to the first opposite party on 20/12/2016. Ext. A3 is the copy of the postal receipt evidencing the despatch of the lawyer notice. Ext. A5 postal acknowledgement card shows that Ext. A2 lawyer notice was received by the first opposite party. The receipt of Ext. A2 is not disputed by the first opposite party in the version. But it is seen that the first opposite party did not send any reply. It is specifically alleged in Ext. A2 that the first opposite party sold a defective TV set to him which was earlier sold to one Bhaskaran and set was one Bhaskaran had returned defective. If the contention of the first opposite party that the TV set sold to the complainant was a brand new one is true and correct, nothing prevented them from sending a reply to Ext. A2 stating the real facts. But that was not done. This is also a strong circumstance which goes against the first opposite party.
21. The first opposite party has taken a contention that the TV set is covered by two year warranty provided by the manufacturer and if there was any defect during the warranty period, the same has to be attended to by the authorised service centre of the manufacturer. It may be true that the TV set may be having two year warranty provided by the manufacturer. But here, whether the product is having manufacturing defect or not is not the question. The crucial point to be considered is as to whether the TV sold to the customer is a brand new one or a second hand one. The available materials establish and prove that the TV unit sold to the complainant by the dealer is a second hand/used one. The fact that the product is having warranty provided by the manufacturer is not a licence to the dealer to sell a second hand TV to a consumer representing that it is a brand new one. The dealer who sold a second hand/used TV set to the consumer cannot be heard to advise the consumer to avail the benefits under the warranty provided by the manufacturer in order to redress his grievance with regard to the used and faulty product sold to him. A dealer is not expected to exhibit used/defective items for sale. It is the duty of the dealer to remove from the showroom the units which became defective and received back from the customers or to send them back to the manufacturer. No justification whatsoever is given by the dealer in this case for selling a second hand/used TV set to the complainant suppressing material facts, after collecting price of a brand new one. It has also come out in evidence that the grievance of the complainant with regard to the TV was not properly addressed or attended to by the dealer. The act of the first opposite party undoubtedly amounts to gross unfair trade practice and deficiency of service.
22. It is true that the second opposite party is the manufacturer of the said product. But there is nothing in evidence indicating that the second opposite party had any role to play in the sale of the TV in question to the complainant or that the sale of the second hand /used TV was with their connivance or knowledge. On the other hand, the second opposite party has honestly disclosed in the version that the TV sold to the complainant by the dealer was a second hand and defective one returned by an earlier purchaser. As long as it is not proved that the second opposite party had any role in this particular deal, we are of the view that they cannot be held liable.
23. But as far as the first opposite party is concerned, their act in selling a second hand/used TV set to a customer as a brand new one after levying the price of a new TV is highly condemnable. It amounts to an act that is deceptive and unethical. A consumer visits such shops under the bonafide belief that he can get brand new items. No dealer is expected to resort to such type of unfair trade practice. The mental agony of the customer who gets a second hand product instead of a brand new one can be imagined. Undoubtedly, the complainant was put to gross mental agony and hardship due to the greedy act of the dealer. The complainant and his family were unable to enjoy the facility of a TV. PW1 has given evidence that he purchased the TV to see the tournaments and sports especially the badminton tournament of P. V. Sindhu, who is his friend. But his desire was not fulfilled. The first opposite party is bound to replace the TV set with a new one of similar description which shall be free from any defect or return the purchase price of Rs. 23,931.50/-. The complainant is entitled to get adequate compensation from the first opposite party for the mental agony and hardship suffered. Considering the entire facts and circumstances of the case, we are of the view that a sum of Rs.50,000/- will be reasonable compensation in this regard. The complainant is also entitled to get Rs.5,000/- as cost of the proceedings from the first opposite party.
24. Point No. 2 : In the light of the finding on the above point, the complaint is deposed of as follows:
(a) CC 8/2017 is allowed in part.
(b) The first opposite party is hereby directed to replace the TV set sold to the complainant with a new one of similar description which shall be free from any defect or refund the purchase price of Rs.23,931.50/- (Rupees twenty three thousand nine hundred and thirty one and fifty paise only) to the complainant.
(c) The first opposite party is directed to pay a sum of
Rs.50,000/-(Rupees fifty thousand only) to the complainant as compensation for the inconvenience, mental agony and hardship suffered.
(d) The first opposite party is directed to pay a sum of
Rs.5,000/- (Rupees five thousand only) as cost of
proceedings to the complainant.
(e) The second opposite party is exonerated.
(f) The order shall be complied with within 30 days of the
receipt of the copy of this order.
Dictated to the Confidential Assistant, transcribed by her and corrected by me and pronounced in the open Commission on this the 25th day of March 2022.
Date of Filing: 10/01/2017
PRESIDENT
MEMBER
MEMBER
APPENDIX
Exhibits for the Complainant :
Ext. A1 – Copy of the bill dated 29/10/2016
Ext. A2 – Lawyer notice
Ext. A2 (a) – Copy of the postal acknowledgement card
Ext. A3 – Copy of the Postal receipt
Ext. A4 – Copy of the Postal receipt
Ext. A5 – Copy of the postal acknowledgement card
Ext. A6 – Copy of the postal acknowledgement card
Ext. A7 – Statement filed by the second opposite party
Exhibits for the Opposite Party
Nil
Witnesses for the Complainant
PW 1 – Dr. Jibin Jose Tom - Complainant
Witnesses for the opposite parties
Nil
PRESIDENT
MEMBER
MEMBER
