Order-10.
Shri Rabideb Mukhopadhyay, Member.
This is an application u/s.12 of the C.P. Act, 1986.
The case of the complainant is that he purchased one Sony LED TV, model no.32EX520 from OP-3 on 09/08/2011 for Rs.44, 900/-(Invoice attached at Annexure-“P-1”). Suddenly on 25/01/17the said Sony TV started problem andfor necessary repairing, the made a complaint with the OP-4 i.e. the Authorized Service Centre of Sony India Pvt. Ltd. namely Smart Tech Solution through the Co.’s Toll Free Telephone No.1800-130-7779 on 30/01/2017serial no. 2447296 and Service Request ID 37954553.. Against that service call one technical staff/service engineer from the OP-3 i.e. the said Authorized Centrevisited the complainant’s residence on 30/01/2017 for repairing, inspected the set, and suggested the complainant to replace/change the panel of the said Sony LED TV and gave an Estimate of Rs16389/- for repairing.(Estimate-Annex-“P-2”).
As per para-9, the complainant paid an amount of Rs 10000/- through cheque no. 527325 dated 03/02/2017 drawn on Allahabad Bank, Mohanbati Branch in favour of the OP-3 i.e. the Authorized Service Centre of Sony India Pvt. Ltd, namely, Smart Tech
Solutions as an Advance of total estimated amount of Rs 16389/- against job no.J70274566 for which the OP sent e-mail acknowledging the cheque. The copy of e-mail is marked as Annex-“P-3”.
The complainant stated that after receiving the Advance for replacing the panel of the LED TV, OPs did not take any steps for servicing and after several reminders, OPs sent two e-mails on 15/02/2017, one acknowledging receipt of complainant’s e-mail and assuring to look into the matter and the other relating to physical inspection of the product by OPs’ Engineer advising replacement of the product and since spare availability is limited, exchange offer is given for new Sony BRAVIA TV at the set’s 75 percent MRP, i.e. at 25 percent discount for exchange of the old set. The old set would be collected by OPs as part of the exchange offer. Copy of e-mails –Annex-“P-4”.
It is stated in the complaint that service engineer of Authorized Service Centre initially visited the LED TV at his residence and advised for change of the panel and gave an estimate for Rs 16000/- against which advance of Rs 10000/- paid by the complainant was accepted by the OPs but they failed to mention the advance amount in their e-mail. The complainant alleges of unfair means adopted by OPs.
The complainant again sent mail on 24/3/2017 requesting the OPs to repair the old TV set by replacing the panel for which complainant already deposited Rs 10000/- and on the same date (24/3/2017) OPs sent back e-mail to complainant acknowledging complainant’s e-mail and assuring they would look into the matter. Emailsof the complainant and the OPs are in Annex-“P-5”.
As stated in the complaint, OPs sent e-mail on 28/3/2017 (Annex-“P-6”) to complainant stating that spare availability being limited, alternative option was provided to complainant with the same content of e-mail dated 15/02/2017(i.e. Exchange Offer).The complainant in return mail dated 29/3/2017 (Annex-“P-7”) informed that it was not possible for him to accept OPs’ offer and he intended to get the old Sony make TV repaired and wait till 06/4.2017 after which he would take legal measures. In response to this mail, OPs sent mail dated 30/3/2017(Annex-“P-7”) stating that they are unable to repair the old TV set and asked the complainant to accept the Exchange Offer. It is alleged that OPs are trying to grab the advance money of Rs 10000/- and his old Sony LED TV (purchased at Rs 44900/-) in the plea of selling of a new BRAVIA TV set at 75 percent of MRP of the new set. It is also asserted by the complainant that OPs took advance of Rs 10000/- for repair and so, they are bound to repair. The complainant is an old person suffering from old-age diseases. TV is a companion to him but he has been suffering from huge mental agony since January, 2017 for the actions on the part of the OPs.
The complainant prayed for direction on the OPs for replacement of panel of the old TV 18 percent interest on Rs 10000/- from 03/02/2017 till date of replacement with compensation of Rs 60000/- and litigation cost of Rs 30000/-.
The authorized representative of O.P.-1 and OP-2 filed WV on behalf of all OPs and stated that OP-3 and OP-5 authorized OP-1 and OP-2 and a resolution dated 07/02/2014(Annex-OP-1) of the company authorized Priyank Chauhan to represent the instant case on behalf of OP-1 and OP-2. It is stated that the company is dedicated for customer satisfaction but the instant complainant suppressed material facts for wrongful gain. After 6 years of satisfactory enjoyment of the TV, the complainant approached the OP-5 and after inspection of the TV, the panel was found to have outlived and the complainant was advised to replace it. The OPs stated that due to rapid changes in the technology the said panel has now become obsolete and the complainant was offered 25 percent rebate on the purchase of a new TV of Sony Bravia from the current range but instead of grabbing the offer, the complainant filed the complaint in this Forum.
After purchase of the TV from OP-3 on 09/8/2011 the complainant enjoyed it for more than 6 years and for the first time approached OP-5 with dark pictures in the set and his complaint was registered vide Job sheet no.J70274566. After inspection, the Display panel was defective and its replacement was necessary for its effective functioning. OPs admitted at para-7 of WV that as the warranty expired, it was informed to the complainant that service would be done on chargeable basis and an estimate of Rs 16389/- (Annex-OP-2) was offered to the complainant by service engineers and the offer was accepted by him and the complainant paid an Advance of Rs 10000/- for repair of the TV set.
It is admitted at para 8 of WV that the service engineer could not rectify the issues of the TV set. Then the OPs offered to the complainant for exchange of the old TV with 25 percent discount on MRP of a new Sony BAVARIA set. A copy of such offer of communication is Annex-OP-3. OPs also referred to citation of III (1999) CPJ 28 (SC) in the case of Ranveet Singh-v-M/s Royal Dutch Airlinesthat burden of proving deficiency in service is upon the person who alleges it.
OPs stated that in the absence of any deficiency in service or any negligence thereof, the complaint be dismissed.
Points for discussion
- Whether the complainant is a consumer ;
- Whether the OPs are deficient ;
- Whether the complainant deserves any relief.
Decision with Reasons
We have scanned, inter alia, the documents namely all Annexures from P-1 to P-7 filed by the complainant and OP-1 to OP-3 filed by OPs with WV as well as the Evidence on Affidavit filed by the complainant. OPs did not file Evidence and so, no questionnaire has been filed by either party.
It remains the fact that expiry of warranty has long been passed and so, there was no obligation of OPs to service or repair the defective TV under the coverage of warranty.
But OPs have been under mistaken understanding about the deficiency in service which is further detailed below.When on contact, OPs’ service engineer came and diagnosed the malfunctioning of the TV on account of defective control panel, furnished an estimate of Rs 16389/- for service/repair and replacement of the defective panel and even received advance of Rs 10000/-, OPs were confirmed about the availability of the spare parts under dispute, else how could they calculate the estimate for the spare with other charges as revealed in the Estimate filed under Annexure-“P-2” by the complainant and Annexure- “OP-2” filed by OPs. Before taking Advance, OPs should have checked the stock of spare parts.
It remains question against OPs, if parts are not available then why did OPs not refund the Advance money received from the complainant. It is also a question why did OPs repeatedly pressurize the complainant for purchasing the new Sony make TV of BAVARIA brand on reduction of only 25 percent of MRP against exchange of the old one.
By taking Advance and by not refunding it on its failure to supply the spare parts, namely the control panel, OPs have restricted the complainant to purchase the new Sony TV of Bavaria brand by way of foreseeing the probability that the complainant would have no other alternative but to purchase the newly offered Bavaria Sony TV in the situation where they have managed the lion’s share(Rs 10000/-) of the estimated amount of Rs 16389/- as Advance as well as the complainant was passing his old-age days without a TV. This is sheer Restricted Trade Practice as well as unfair trade adopted by the OPs.
OPs admitted at para-7 of WV that service would be done on chargeablebasis and Estimate of Rs 16389/- was offered to complainant for repair of the TV. The complainant accepted the offer and advanced Rs 10000/-. OPs also admitted at para-8 of WV that the Service Engineer of OPs was not able to rectify the issues of the TV set. By paying the advance money against service promised by OPs, the complainant becomes consumer under the OPs u/s 2(1)(d)(ii) of the C. P. Act 1986 as amended so far. OPsfailed to render promised service to the complainant and so, they are jointly and severally deficient in rendering promised service in terms of sec 2(1)(g) read with sec 2(1)(o) of the Act ibid. This is not deficiency in terms of the warranty of the originally purchased TV but in terms of failure to render service for repair/replace the control panel on chargeable basis.
In the circumstances, we see from above discussion that the complainant is a consumer under the OPs who are deficient of promised service for which the age-old complainant has suffered particularly due to mental agony for want of the TV and so, we are constrained to pass order as below.
Hence
ORDERED
That the complaint be and the same is allowed on contest against the OPs;
That OPs are jointly and severally directed to repair the TV of the complainant by way of replacing the control panel or otherwise as promised by OPs followed by receipt of balance amount of Rs 6389/- from the complainant, within 30 days from the date of judgement;
Alternatively, OPs shalljointly and severallyhave to pay back Rs 10000/- to the complainant with 9 percent interest (for holding the money for months) from the date of receipt of cheque no. 527325 dated 03/02/2017 drawn on Allahabad Bank, Mohanbati Branch,within 30 days from the date of judgement;
That OPs are jointly and severally directed topay an amount of Rs 10000/- in terms of sec 14(1)(d) of the Act, to the complainant as compensation for causing mental agony to the Senior Citizen complainant and Rs 30000/- in terms of sec 14(1)(hb) for adopting restrictive trade and unfair trade, which shall be deposited with this Forum,within 30 days from the date of judgement;
That on failure of OPs to comply with the above orders, complainant shall have liberty to put it into execution in terms of appropriate section(s) of the Act ibid.
Copies of the order be handed over to the parties when applied for.
