Sri Utpal Kumar Bhattacharya, Member
Instant Appeal u/s 15 of the C.P Act, 1986 challenges the judgment and order dated 12.12.2014 passed by the Ld. District Forum, Howrah in Complaint Case No.HDF/98/2014 allowing the compliant on contest with cost against the OPs.
The Respondent/OP No. 2 was directed to refund the cost of the LCD TV to the tune of Rs. 24,500/- within a period of 30 days from the date of the impugned judgment and order.
The Appellant/OP No.1 and Respondents/OPs were further directed to pay jointly and severally cost and compensation to the tunes of Rs.5,000/- and Rs.20,000/- respectively to the Respondent/Complainant within the same period of 30 days from the date of the impugned judgment and order, failing which as ordered, the total amount of Rs. 49,500/- shall carry interest @ 12% p.a. till full satisfaction.
The Respondent/Complainant, as ordered, was given liberty to put the order into execution on expiry of the Appeal period.
The facts, in brief, having relevance with the instant complaint are that the Respondent No. 1/Complainant purchased one LCD TV of the make of Appellant/OP No. 1 from the outlet of the Appellant/OP No. 2, the dealer, on 10.10.2013 at a cost of Rs. 23,000/- and in exchange of an old set valued Rs. 1,500/-. The newly purchased set was installed by the Respondent/OP No. 3 but the operation system was not made clear to the understanding of the Respondent/Complainant. The Respondent/Complainant was made to sign the certificate of successful installation under compelling circumstances and the warranty card was left unsigned and without affixing seal by the Respondent/OP Nos. 2 and 3 in spite of being requested to do so by the Respondent/Complainant.
The LCD stopped functioning on and from 23.10.2013, that is, only after 13 days from the date of purchase. The Respondent/Complainant informed the Appellant/OP No. 2 about the matter who, instead of coming to offer its services at the place of installation, referred the Respondent/Complainant to the authorized service centre of Respondent/OP No. 4 where a manufacturing defect in the set was verbally reported. As reported further, the LCD had to be repaired to make the same operational. The Respondent/Complainant felt himself duped by the unfair trade practice upon him by the Appellant/OP No. 2.
Being subjected to a physical harassment and mental agony caused to him by the aforesaid unfair trade practice, the Respondent/Complainant preferred the Complaint Case before the Ld. District Forum. The impugned judgment and order arising out of the said complaint is under challenge in the instant Appeal.
The Appeal was heard ex-parte against the Respondents/OPs because of their successive absence on the dates of hearing.
Heard Ld. Advocate appearing on behalf of the Appellant/OP No. 1 who submitted that his client was responsible for repairing the defect, if any, in the supplied articles. It does not have any liability to replace. However, keeping eye upon its goodwill it had shown a good gesture of offering the Respondent/Complainant three options within the span of 79 days since the date of purchase of the articles so as to overcome the crying situation.
Drawing notice of the Bench to running page No. 53, being the letter communicated by the Appellant/OP No.1 to the Ld. Advocate for the Respondent/Complainant in response to his legal notice dated 30.11.2013, the Ld. Advocate continued to submit that the options offered therein to the Respondent/Complainant indicated the Appellant/OP No. 1’s bonafide to address the grievance of the Respondent/Complainant.
As continued, the Respondent/Complainant was reluctant to appreciate the fact that the Appellant/OP No. 1 was not selling the purchased model any longer. He was offered a better model on payment of only the difference of the value to the tune of Rs. 4,910/-.
The Respondent/Complainant in the said communication offered an option of getting his LCD repaired free of cost and in the last option he was offered the refund of the entire purchase value.
As continued, the Respondent/Complainant resorted to the path of unjust enrichment yielding to neither of above three propositions. The Ld. Advocate contended that the Ld. District Forum did not apply its judicious mind while finding deficiency in the service of the Appellant/OP No. 1.
With the above submission, the Ld. Advocate prayed for the Appeal to be allowed setting aside the impugned judgment and order.
Perused the papers on record. It is needless to explain in so many words that the general intention of the purchaser is to approach the organization from which the articles are purchased if the said article is found defective immediately after delivery.
It is also understandable that the dealer will suggest the purchaser to approach the service centre for repairing the defect, if any, first. On the instant occasion exactly the same thing had happened but the service centre was not able to offer the Respondent/Complainant the desired remedy, rather it allegedly observed verbally that the machine was having a manufacturing defect. Since the observation was made by the Appellant/OP’s referred service centre and since the Respondent/Complainant was not supposed to engage any technical expert to ascertain the manufacturing defect of an LCD purchased only 13 days back, we have reasons to believe that the observation of the service centre was having some ingredients of truth particularly when the machine was ultimately could not be repaired by the said service centre. We did not find any pro active role also from the Appellant/OP No.1 to address the grievances of the Respondent/Complainant but to offer him three options as above as remedial steps two of which were prima facie not acceptable as
- A purchaser would not agree with the proposal of getting his machine—only 13 day old—repaired rather than the same being replaced with a new one.
- The substitution of the machine by another, stated to be a new one, paying the difference of cost should be similarly discarded as the purchaser would not get the article of his choice and preference and also he might not have the capacity to afford any added amount to what he had already paid.
Only option then left was to refund the paid amount which, however, the Appellant/OP No.1 had offered after 79 days and that too after receiving the legal notice. We should not ignore the physical harassment and mental agony that the Respondent/Complainant had to sustain for that period.
We also failed to understand why the Appellant/OP would not be able to replace the subject model with a new one of the same model when, as per its own commitment, it intended to provide the Respondent/Complainant with a better model in exchange on payment of cost difference. We are unable to buy the logic of discontinuation of dealing with the same model which they had sold some days back.
We, however, do not find any major involvement of Respondent Nos. 3 and 4 in the instant case.
The cost and compensation to be paid, as directed in the impugned order, however, appeared to have been assessed at a higher side and as it is felt, the same are needed to be suitably reduced.
In the given circumstances, we intend to modify the impugned judgment and order.
Hence,
Ordered
that the Appeal be and the same stands allowed in part with cost.
The Respondent/OP No2 shall refund the amount of Rs. 24,500/- to the Respondent/Complainant on return of the subject LCD if it is still in possession of the Respondent/Complainant.
Appellant/OP No. 1 and Respondent/OP No. 2 are jointly and severally directed to pay a compensation and litigation cost to the tunes of Rs. 4,500/- and Rs. 1000/- respectively sharing the same in equal proportion to the Respondent/Complainant.
Entire order has to be carried out within a period of 45 days from the date of the instant order, failing which, simple interest @ 9% p.a. shall accrue to the payable amount of refund and compensation to be paid by the Respondent/OP No. 2 and compensation to be paid by Appellant/OP No. 1 from the date of default till the amounts are fully realized.
The impugned judgment and order stands modified accordingly.
