JUDGEMENT<br /> By Sri. Gururaj Member:-<br /> <br /> This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant- B.S. Patil, Advocate against the three Respondents (1) The Managing Director Samsung India Electronics Pvt. Ltd., New Delhi (2) The Stores Manger Big Bazar Ltd., Hyderabad and (3) Shree Narasimhalu Service Executive of Samsung Service, Raichur. The brief facts of the complaint are as under:-<br /> <br /> The complainant has purchased LCD TV No. 319953 BN 6902316C-00, LA-32, A-550, PIR LXL of Respondent No-1 Company in Respondent No-2 shop on 28-10-08 in Big Bazar at Hyderabad through Bill N. T-45/23754 for Rs. 49,000/-. After purchase the Service Executive of Respondent No-1 Company by name Narasimahalu i.e, Respondent NO-3 installed the LCD TV, but the said LCD TV not worked properly. The Respondent No-3 checked and found that mother board and electricity panel Board are defective and not repairable. Immediately the complainant informed the Respondent NO- 1 & 2 and brought to their notice about the problem with the LCD TV on 03-11-08. The Respondent NO-2 send the Respondent NO-3 to get it repair the LCD TV. After attending the problem the Respondent No-3 informed the complainant that due to non-availability of the spare parts LCD TV is not repaired.<br /> <br /> Further it is the case of the complainant that even in-spite of several efforts to get it repair or replace the LCD TV through Respondent No- 1 to 3 but went in vain. Left with no option got issued the legal notice on 01-11-08 through RPAD. Even after receipt of the notice the Respondent No- 1 to 3 have not turned up, neither repaired the LCD TV nor replaced the same and even not ready to repay the cost of the LCD TV. This act of the Respondent is nothing but a deficiency in service on the part of the Respondents.<br /> <br /> Further it is the case of the complainant that he has suffered with mental tension and the sons & daughter missed their popular programmes during the vacation from 28-10-08 to 06-11-08. The complainant has spent huge amount to approach the Respondent and to get it repair. The claim of the complainant is within the warranty period. Therefore he is entitled for repair or replacement and to repay the cost of the LCD TV with an amount of expenditure. Hence the present complaint.<br /> <br /> 2. The Respondent No- 1 & 2 have filed their written version contending that immediately after receiving the complaint about problem with the LCD. The Respondent NO-2 requested the Respondent NO-1 and send the service executive from authorized service center. When the service executive confirmed about the failure of parts of LCD TV in order to maintain Good Will of the company they have replaced he LCD TV Set No. 10263PBQA02315A vide Invoice No. R 1716 dt. 13-11-08 with the same model and delivered and installed the same at complainant’s residence vide delivery challan No. 529 dt. 15-11-09. There was no delay on their part hence there is no deficiency in service by them. Further it is contended that the complainant has filed false complaint with a bad motive an intention and the complaint is barred by territorial jurisdiction. Hence sought for dismissal of the complaint.<br /> <br /> 3. The Respondent No-3 has filed his written version and contended that he is not appointed as a employee or service executive by the Samsung India Electronic Pvt. Ltd., or by the Proprietor of the Authorized Service Center Bellary. He is attending the LCD TV of complainant on call basis. He has not connected with the company in any way. As per the call given by the proprietor of Authorized Service Center Bellary he has attended the LCD TV of complainant and noticed physical transit problem and informed the same to the Authorized Service Center Bellary. Further he contended that immediately after receiving the information by him new LCD TV has been replaced by the Bangalore Office and same has been installed at the residence of the complainant on 15-11-08. The wall mounting was separately given to the complainant at the time of installation but the complainant asked this Respondent not to fix the wall mounting and same will be fixed later on and it is easy to watch the LCD TV with stand. Further he has contended that the complainant has admitted about the replacement of LCD TV in his evidence but not mentioned anything about it in his complaint and not raised issue regarding the fixation of the wall mounting in the complaint. The complaint failed on 14-11-08 and admitted on 20-11-08 with due amendment. After replacement of the set the complainant has not withdrawn the complaint. The complainant suppressed the fact before the Forum. After installation has visited the complainant’s residence and sought for letter of satisfaction but the complainant never gave the same. There was no deficiency on the part of the Respondent NO-3 hence sought for dismissal of the complaint.<br /> <br /> 4. During the course of enquiry the complainant has filed his sworn affidavit by way of examination-in-chief and he has got marked (5) documents as Ex.P-1 to Ex.P-4 & Ex.P-4(1). In rebuttal on behalf of Respondent No- 1 & 2 one Sri. N.Ashok Kumar, Proprietor M/s. PAAN Enterprises, Gandhinagar, Bellary has filed sworn affidavit and filed (4) documents at Ex.R-1 to Ex.R-4. Similarly the Respondent No-3 has filed his sworn-affidavit by way of examination-in-chef. The Respondent No-3 has not produced any documents hence no documents were marked on behalf of the Respondent No-3. <br /> <br /> 5. Heard and perused the written arguments. The following points are arises for our consideration and determination:<br /> <br /> 1. Whether the complainant prove deficiency in service by the Respondents 1 to 3 as alleged.?<br /> <br /> 2. Whether the complainant is entitled for the reliefs sought for.?<br /> <br /> <br /> 6. Our finding on the above points are as under:-<br /> <br /> 1. In the Negative<br /> <br /> 2. As per final order for the following <br /> <br /> REASONS<br /> <br /> POINT NO.1:-<br /> <br /> 7. There is no dispute regarding purchase of the LCD TV by the complainant from the Respondent No-2 and it is also not in dispute that the said LCD TV was under repair and it has not repaired by the Sales Executive due to non-availability of spare parts. The complainant has produced in all (5) documents they are (1) Xerox copy of Invoice Bill marked at Ex.P-1. (2) Xerox copy of Legal Notice issued by complainant to the Respondents dt. 30-10-08 is marked at Ex.P-2. (3) Customer Service Record Card issued by Respondent Company to the complainant is marked at Ex.P-3. (4) Legal Notice dt. 01-11-08 issued by the complainant is marked at Ex.P-4. Similarly Respondent has filed (4) documents they are (1) A copy of the Electronic Print out regarding the appointment of M/s. PAAN Enterprises, Bellary marked at Ex.R-1. (2) A copy of the Tax Invoice from the company for the replacement LCD TV marked at Ex.R-2. (3) A copy of the delivery challan dt. 15-11-08 marked at Ex.R-3 and (4) A sample card of the warranty card at Ex.R-4. <br /> <br /> 8. From the perusal of the complaint of the complainant it is very clear that the LCD TV which he has purchased from the Respondent No-2 was under repair within the warranty period. Even inspite of several efforts same was not repaired by the Respondents. For this the complainant has sought for the relief of repair or replacement or refund of the TV amount through the said complaint. Para-2 to 5 of the complaint are very clear in this regard. In order to claim the same before filing the complaint the complainant has got issued two legal notices to the Respondents No- 1 & 2 on 30-10-08 and on 01-11-08 under Ex.P- 2 and Ex.P-4 respectively. The said Ex.P-2 and Ex.P-4 are very clearly speaks that his claim is in respect of the refund of the cost of the LCD TV and expenses incurred on it. But the evidence of the complainant is quite contrary to his own pleadings under the complaint. The affidavit filed by the complainant as examination-in-chief in support of his case is totally different. The contents of the affidavit are clearly speaks that the claim of the complainant against the Respondents is not in respect of the defective LCD TV but only in respect of non supply of “wall mounting” for installment of the LCD TV. At Para- 4 of the said examination in chief affidavit the complainant clearly stated that the Respondents have replaced the LCD TV on 18-11-08 but have not sent the wall mounting. Because of non supply of wall mounting he has suffered a lot and sought for compensation along with cost of the LCD TV. <br /> <br /> 9. From the pleadings in the complaint and evidence given through the affidavit it is very clear that the complainant is shifting his version from “defective LCD TV” to “non supply of wall mounting” which is quite contrary to his own pleadings. The claim under the complaint is different and claim under the evidence is different. What he has pleaded he has not proved by evidence and what he wants to prove not pleaded in the complainant, under these circumstances, we cannot hold that the complaint of the complainant is not maintainable neither in law nor on facts hence where of the opinion that the complaint of the complainant is fit to be dismissed. In this regard we have referred and followed the principles of four rulings reported in (1) AIR 1956 SC 593 Nagu Ammal and Others V/s. b. Shama Rao and others. (2) AIR 1954 SC 758 Sheodheri Rai and others V/s. Suraj Prasad singh and others. (3) AIR 1982 Calcutta 488 Mohd. Younus V/s. Nabi Hussain (4) AIR 1982 Calcutta 342 Jugal Kishor Kundu Case. <br /> <br /> 10. Under the above circumstances we hold that the complaint of the complainant is fit to be dismissed. The complainant has failed to prove the deficiency in service by the Respondents Hence Point No-1 is answered in the Negative.<br /> <br /> POINT NO.2:-<br /> <br /> 11. In view of our discussion and finding on Point No-1, holding that the complainant has failed to prove deficiency in service on the part of the Respondents so the complainant is not entitled for the reliefs sought for. In the result we pass the following order:<br /> <br /> ORDER<br /> <br /> The complaint of the complainant being devoid of merits is hereby dismissed. No order as to cost.<br /> <br /> Office to furnish certified copy of this order to both the parties forth with free of cost.<br /> <br /> (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 25-07-09.)<br /> <br /> <br /> Sd/-<br /> Sri. N.H. Savalagi,<br /> President,<br /> District Forum-Raichur.<br /> <br /> Sd/-<br /> Sri. Gururaj, Member,<br /> District Forum-Raichur.<br /> <br />