BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Dated this the 20^th day of December 2017

Filed on : 24-08-2015

PRESENT:

Shri. Cherian K. Kuriakose, President.

Shri. Sheen Jose, Member.

Smt. Beena Kumari V.K. Member.

CC.No.570/2015

Between

Sony Davis, : Complainant

S/o. N. V. Davis, (By Adv. Pramod Kochuthommen. E,

Nayathodan house, 1^st floor, JMV, Towers, Deepam Lane,

Elinjipra P.O., Kombara, Kochi-18.)

Thrissur – 680 721.

And

1. Seiko Holding Corporation, : Opposite parties

Rep. by its Managing Director,

Seiko Watch India Pvt. Ltd.,

Having its regd. Office at 607,

2^nd floor, Asha Plaza,

80 Feet Peripheral road,

Koramangala, Bangaluru,

Karnataka-560 034.

2. The Managing Director,

Seiko Boutique,

By Swiss Time House Pvt. Ltd.,

34/939, 1^st floor,

Lulu International Shopping Mall,

Edappaly, Cochin-682 024.

3. The Managing Director, (3^rd O.P. By Adv. George Cherian

Alfa Time Service Pvt. Ltd., Karippaparambil, Karippaparambil

S-3, Seaside, GCDA Complex, Associates, HB 48, Panampilly

Marine drive, Ernakulam, Nagar, Kochi-682 036)

Kochi-682 031.

O R D E R

Cherian K. Kuriakose, President.

Complainant's case

The complainant, a building contractor purchased a Seiko watch on 25-05-2015 from the 2^nd opposite party M/s. Seiko boutique Lulu Shopping mall Cochin on payment of an amount of Rs. 23,800/-. The 1^st opposite party is the manufacturer of the watch and the 2^nd opposite party is the dealer. There was 24 months repair or replacement guarantee for all parts of the watch. On 20-06-2015 the watch started rusting and now the entire joining portions of the chain to the case of the watch has rusted with brownish colour. In order to replace the same, the complainant approached the 2^nd opposite party. The 2^nd opposite party directed the complainant to approach the 3^rd opposite party who is the authorized service centre of the Seiko watches, on finding that there was rusting. The 3^rd opposite party however, neither entertained to undertake replacement of the watch or the defective parts and insisted that they could at the maximum do was to clean the surface area of the watch. Such attitude of the 3^rd opposite party was indifferent. According to the guarantee policy the 1^st opposite party had to make good by repair or replacement at its option free of all charges, any defects in the goods arising, in the manufacturer's opinion, from faulty design, materials or workmanship which shall become apparent within the warranty period of 24 months. The watch started rusting during the warranty period . The 3^rd opposite party is therefore liable to replace the defective parts or the defective watch without charging any cost. The complainant incurred an expenses of Rs. 10,000/- for traveling to the offices of 2^nd and 3^rd opposite parties on various occasions. A lawyer notice was issued to the opposite parties on 04-07-2015 demanding replacement of the defective watch. The opposite parties replied the lawyer notice on 14-07-2015 insisting the complainant to deposit the defective watch with the 3^rd opposite party for examination by experts and for suitable action. The complainant has no desire either to get the defective watch to be examined or get it repaired as it always tends to rust in future. The complainant therefore prayed for the refund of the cost for the watch with 9% interest or to replace the entire watch with a compensation of Rs. 1,30,000/- and costs of Rs. 12,000/- through this complaint.

2. Notices were issued to the opposite parties. The opposite parties appeared and contested the matter by filing their version contenting inter-alia as follows:

3. The allegation that the complainant was denied his right to free service of his Seiko watch under warranty is incorrect. The complainant approached the frond office desk of the service centre of the opposite party on 20-06-2015 claiming that the watch started rusting and demanding the purchase money back. The office staff found that the watch was roughly handled and there was accumulation of dirt and smelly dried sweat substance in between the band parts. When the service staff told the complainant that they are only service agent and are not authorized to refund the money, the complainant become curious. The service staff requested the complainant to deposit the watch for expert's examination and necessary action. The complainant without entrusting the watch walked out of the service centre threatening the staff with serious consequences. On 22^nd June 2015 the complainant issued an e-mail communication and it was replied by the opposite parties requesting the complainant to submit the watch for examination by service engineers for doing the needful. However, the complainant was adamant in not submitting the watch for examination by experts. The opposite parties did not deny the warranty and there was no deficiency in service on the part of the opposite parties. The complaint is therefore sought to be dismissed.

4. The evidence in this case consists of the oral evidence of PW1, the complainant and Exbts. A1 to A7 on the side of the complainant and oral evidence of DW1 and Exbts. B1 to B3 on the side of the opposite parties were marked. Exbt. C1 expert's report also was marked.

5. Heard both sides.

6. On the above pleadings the following issues raised for consideration.

1. 1. 1. Whether the complainant had proved any deficiency in service on the part of the opposite parties?

      2. Reliefs and costs

7. Issue No. i. There is no dispute to the fact that the complainant purchased a Seiko watch with 2 years warranty from the authorized dealer and had approached the authorized service centre with an allegation of rusting on the band of the watch. The service centre was of the view that the black colour formation was not due to rusting but it was apparently due to the accumulation of dirt or some foreign substance . The complainant was not satisfied with the approach of the service centre, and refused to handover the watch in order to make further probe into the allegation of rusting and for cleaning the surface of the watch, where there was discolouration. The complainant confirmed his allegation through an e-mail dated 22-06-2015 and on 23-06-2015. The opposite party had requested the complainant to deposit the watch for examination and remedial action by competent engineers of the manufacturer. The complainant admitted that he refused to hand over the watch and added that he refused to give the watch to the service centre as they were willing only to clean the watch and not to replace it. During the cross-examination the complainant admitted that he requested to the opposite parties on 23^rd June, 26^th June and on 30^th June to produce the watch for further examination regarding the allegation. The complainant had candidly admitted that despite such request, he refused to produce the watch before the opposite parties and preferred to issue a legal notice demanding compensation. Exbt. B1 is the reply given by the 3^rd opposite party to the complainant's counsel Mr. Anil Parathara, Ernakulam requesting his client the complainant to approach the opposite party for the required service once again. On 24-08-2015 the complainant had filed this present consumer complaint before this forum. It is to be noted that despite repeated requests by the opposite parties to produce the watch for examination by the competent engineers of the opposite party to find out as to whether there was any rusting as alleged, the complainant had flatly refused to co-operate with the opposite parties. The complainant was examined on 19-07-2016. After the examination of the complainant, the complainant had pressed for an order in I.A. 596/15 to appoint an independent expert which was allowed and the joint Chemical examiner, Government of Kerala had examined the watch and filed Exbt. C1 report . On going through Exbt. C1, it is seen that there was dark brown coloured tiny granular particles on the wrist watch . The tests for ferric ions such as amonium thio cyanate test, potassium ferro cyanate test and other tests were found positive and based on the results, the Chemical Examiner reported that ferric ions was detected in the given material object and that rust is a mixture of ferric oxide and traces of ferric hydroxide produced by the action of moisture and iron. On the basis of Exbt. C1 the learned counsel for the complainant argued that there was rusting on the watch and that the case of the opposite party that it was the only dirt has been disproved.

8. It is to be remembered that the question addressed to us was not as to whether there was rusting on the watch or not?. We were called upon to address the issue regarding the deficiency in service on the part of the opposite parties in providing service to the complainant. The complainant had produced Exbt. A1 warranty card, A2 purchase bill , A3 job card, A4 lawyer notice, A5 postal acknowledgment, A6 postal receipt and A7 photographs to support the allegations in the complaint. The opposite parties did not controvert any of such allegations but had only requested the complainant to produce the watch for further examination and to do remedial action in the event of finding on any defects covered under guarantee. At this juncture it is to be noted that the opposite party had clearly instructed the customer in the printed instructions as follows:

" to prevent possible rusting of the case and bracelet caused by dust, moisture and perspiration, wipe them periodically with the soft dry cloths"

9. Therefore the manufacturer had foreseen and intimated the complainant that there was a possibility of getting the case and bracelet rusted, if no proper care is taken to prevent rust. Even though, the opposite parties were willing to effect the service of the watch, the complainant failed to entrust the watch to the opposite parties for effecting the service and to prevent the recurrence.

10. In the above circumstance, we find that the opposite parties cannot be blamed in not providing sufficient service to the complainant, and we are unable to trace out any act or omission on the part of the opposite parties to find any sort of deficiency in service. The complaint deserves dismissal with an observation that the complainant did not approach the Consumer Forum with clean hands.

11. Issue No. ii. In the result, the complaint stands dismissed, however, we do not propose to impose any costs on this complaint.

Pronounced in the open forum on this the 20^th day of December 2017

Sd/-

Cherian K. Kuriakose, President.

Sd/-

Sheen Jose, Member.

Sd/-

Beena Kumari V.K., Member.

Forwarded/By Order, -`

Senior Superintendent.

Complainant's Exhibits

Exbt. A1 : Certificate of warranty card

A2 : Retail

A3 : Receipt dt. 18-05-2015

A4 : Lawyer notice dt. 04-07-2015

A5 : A.D.cards

A6 : Postal receipt

A7 : Photographs

C1 : Commission Report dt. 21-08-2017

Opposite party's exhibits:

Exbt. B1 : Letter dt. 14-07-2015

B2 : Authorization dt. 24-09-2015

Depositions

PW1 : Sony Davis

DW1 : Jabaz K.M.