| Final Order / Judgement | IN THE KODAGU DISTRICT CONSUMER DISPUTES REDRESSAL FORUM MADIKERI PRESENT:1. SRI. C.V. MARGOOR, B.Com.LLM,PRESIDENT 2. SRI.M.C.DEVAKUMAR,B.E.LLB.PG.DCLP,MEMBER | CC No.54/2017 ORDER DATED 29th DAY OF SEPTEMBER, 2018 | | Smt. Neethu Rai, W/o. RanjanRai, Aged 35 years, R/at Chickpet, Virajpet -571 218, S. Kodagu. (By Sri.B.E. Somalokanatha, Advocate) | -Complainant | V/s | - The Manager,
Samsung India Electronics Pvt.Ltd., No.502/2, B.K. Street, DevarajMohalla, Mysore. ((By Sri.K.K. Ranju, Advocate) - The Proprietor,
Appa’sElectronics Shop, Opp: Minimax, Pvt. Bus Stand One way Road, Virajpet. (EXPARTE) | -Opponents | Nature of complaint | Defective goods | Date of filing of complaint | 16/11/2017 | Date of Issue notice | 06/01/2018 | Date of order | 29/09/2018 | Duration of proceeding | 10 months 13 days |
SRI. C.V. MARGOOR,PRESIDENT O R D E R - This complaint filed by Smt. Neethu Rai w/o. Ranjan Rai, Aged 35 years resident of Chickpet, Virajpet Taluk, Kodagu District against the opponent Nos.1 and 2 with a prayer to direct the opponents to replace Samsung LED TV measuring 32 inches and pay compensation of Rs.50,000/-. In alternative direct the opponent Nos.1 and 2 to refund Rs.22,000/- price of the TV paid by her to opponent no.2 along with compensation of Rs.50,000/- and Rs.10,000/- towards the cost of the proceedings.
- The opponent no.1 is the Manager, Samsung India Electronics Pvt.Ltd., Mysore and opponent no.2 is the Proprietor Appa’s Electronics Shop, situated at Virajpet, Kodagu District. It is the case of the complainant that she has purchased Samsung LED TV measuring 32 inches on 02/11/2016 along with V-Guard stabilizer from opponent no.2 for a sum of Rs.22,000/-. The said TV was installed by the opponent no.2 in the house of complainant. The said TV hardly functioned for 10 days and there after it started to give problem on and often. On 15/11/2016 the complainant has intimated matter to the opponent no.2 and on the instructions of opponent no.2., the opponent No.1 has sent person to the house of complaint on 22/11/2016 for repair. The mechanic tried to make the product run and open in good condition and for that he charged Rs.401/-. The mechanic told the complainant that some of the parts of the TV have broken down which was not legible at the time of purchase. Further he told that the said product was defective one. Then the complainant has intimated the opponent no.2 to replace the product and then the opponent has postponed the act of replacement of TV by giving one or the other reason. Hence, the complainant has approached this Forum.
- The opponent No.1 after the service of notice appeared through its learned counsel and filed detailed version contending that the complainant is not consumer and the complaint is not maintainable on account of non-joinder of proper and necessary party. The TV purchased by the complainant was in good condition according to the averments of complaint and the TV was damaged by human act as a result it stopped functioning.
- The opponent no.1 denied that the mechanic who went to the house of complainant on 15/11/2016 told that the TV supplied by opponent no.2 is defective. The opponent no.1 has charged for visiting the house of the complainant since the house of complainant is not within municipal area of Mysore city in terms and conditions of warranty card. The part which is defective can be replaced at the cost of complainant, but the entire unit cannot be replaced. On the amongst other grounds, the opponent no.1 prayed to dismiss the complaint.
- The opponent no.2 inspite of the personal service of notice was proceeded exparte.
- The complainant filed her affidavit evidence and got marked P1 to P3 document. On behalf of opponent no.1 S. Ramachandra s/o. Shivanna, Proprietor of Samsung Service Centre in Mysore filed affidavit in lieu of evidence and got marked exhibit R1 photo.
- The learned counsel for the opponent no.1 has submitted written arguments whereas, the complainant and her counsel were remained absent since 28/07/2018 continuously in four adjournments. On perusal of the complaint, version, affidavits and written arguments the points that would arise for determination are as under;
- Whether the complainant proves that she is consumer under the Consumer Protection Act, 1986?
- Whether the complainant further proves that the TV supplied by opponent no.2 is defective since its purchase?
- Whether the opponent no.1 proves that the complaint is not maintainable without impleading the manufacturer of purchased TV?
- To what order?
- Our findings on the above points are as under;
- Point No.1:- In the Affirmative
- Point No.2:- In the Affirmative
- Point No.3:- In the Affirmative
- Point No.3:- As per final order for the below
R E A S O N S - Point No.1 and 2:- The learned counsel for the opponent no.1 contended that the complainant is not consumer under the Consumer Protection Act, since her name is not appearing in exhibit P1 cash bill issued by opponent no.2. It is true that exhibit P1 cash bill issued by opponent no.2 dated 02/11/2016 for Rs.22,000/- is without the name of purchaser. Exhibit P1 is printed bill of opponent no.2 shop and according to this the complainant purchased Samsung LED 32 inches TV and V-guard stabilizer and she paid Rs.22,000/- cash. The complainant marked exhibit P2 receipt issued by opponent no.1 dated 22/11/2016 in the name of complainant for receiving Rs.401/- as service charges. Exhibit P2 is letter head of opponent no.1 and it contained call number, model number of TV and its serial number. Exhibit P3 is warranty card.
- The opponent no.1 in the earlier part of version though contended that the complainant is not consumer for not mentioning her name in exhibit P1 cash bill but the opponent no.1 in later part of version admitted that he sent mechanic to the house of complainant to repair the TV purchased by her and during inspection the service engineer noticed physical damage to TV. This can be found in paragraph no.11 and 12 of version of opponent no.1. This admission of opponent no.1 proves that the complainant has purchased LED TV 32 inches from opponent no.2 vide exhibit P1 cash bill. In addition to that opponent no.1 has issued exhibit P2 receipt for receiving Rs.401/- as inspection or service charges on 22/11/2016. The opponent no.2 has not disputed issue of exhibit P2 receipt. Therefore , admission given by the opponent no.1 in the version coupled with exhibit P2 prove that the complainant has purchased TV from the opponent no.2 for valuable consideration. Thus the complainant is consumer under the definition of Consumer Protection Act.
- The complainant allegation against the opponent is that the TV supplied by opponent No.2 is defective. The complainant had purchased TV from the opponent no.2 on 02/11/2016 and it stopped functioning since 15/11/2016 within 12 days from the date of purchase. On the complaint made by complainant the opponent no.2 has intimated the opponent no.1 service provider to attend the repair of TV purchased by complainant. Accordingly the opponent no.2 has sent service engineer to the house of complainant on 22/11/2016 within 20 days from the date of purchase of TV and issued exhibit P2 receipt for Rs.401/- as service charges. The contention of opponent no.1 is that the TV was damaged and it was noticed by service engineer as such it was not functioning. It is the contention of opponent no.1 is that the panel of TV was damaged and it can be replaced at the cost of complainant. The service engineer has not submitted the cost of panel and other parts to get repair of the TV.
- Opponent no.1 contention is that the complainant has not produced expert’s report that TV supplied by opponent no.2 is defective. The opponent no.1 has placed reliance on Kamal Kishore V/s Electronics Corporation of India Ltd. and another I (2011) CPJ 254 wherein the National Consumer Commission under section 2(1)(d) and 21(b) of Consumer Protection Act held that defective television –alleged deficiency in service no written request to get TV set attended during warranty period. No credible evidence produced for any inherent defect as such complaint is liable to be dismissed. The facts of the above citation are that the petitioner/ complainant had purchased television on 17/07/1988 from the opponents for Rs.2,200/- and after expiry of the warranty period on 16/07/1989 the complainant had complained about the defect in the TV on 23/05/1989 and 21/061989 but there is no proof to support the said statement. The above citation is not applicable to the opponent no.1 since in the case on hand within 12 days from the date of purchase the complainant had reported or complained about the defect in the TV. In addition to that within 20 days from the date of purchase the service engineer of opponent no.1 had visited the house of complainant to repair the said TV. It shows that within 20 days from the date of purchase of TV from opponent no.2 it was not functioning properly.
- It is the allegation of opponent no.1 is that the TV was damaged due to human act as such it was not functioning. The opponent No.1 has produced photo of TV but it is not showing TV number etc. and it cannot be relied upon the said photo belonged to the TV purchased by complainant. The service engineer of opponent no.1 on the complaint made by the complainant had visited her house on 22/11/2016 within 20 days from the date of purchase of TV but failed to submit job card to the complainant containing the defects or damage caused to the television. The service engineer has simply issued exhibit P2 dated 22/11/2016 for collecting labour and service charges including service tax a sum of Rs.401/-. The service engineer of opponent no.1 would have mentioned the damage if any caused to the TV or defects noticed on the said day why it was not functioning. Therefore, in view of exhibit P2 it is not necessary for the complainant to produce expert’s report since the service engineer who inspected the TV within 20 days from the date of purchase of TV has failed to mention the defects or damage to the television in exhibit P2. Therefore, the complainant has successfully proved that the TV supplied by opponent no.2 on 02/11/2016 was defective.
- The opponent no.1 contention is that seeking replacement of TV is not maintainable and on this point they brought to the Forum notice the case of Dr. Hema Vasantial Dakoria V/s Bajaj Auto Limited and others MANU/CF/0035/2005 dated 22/02/2005 in Revision petition No.390/2003 the National Consumer Commission held that if a part could be replaced or a defect could be removed then replacement cannot be ordered. In the preceding paragraph it is held that the service engineer who checked the TV in the house of complainant has failed to furnish job card or mentioned in exhibit P2 bill the number of defects in T.V or damages caused to it. The service engineer is a proper /competent person to notice the defect parts for its replacement. The service engineer of opponent no.1 has failed in his duty as such it can be presumed that the entire TV
set was defective. Therefore, the opponent no.2 is liable to replace a new TV set in place of old one supplied by him which is defective and non-functioning since 10 days from its supply. Accordingly we answer point no.1 and 2 in in the affirmative. - Point No.3 and 4 :- The opponent no.1 in the version/ objection and affidavit evidence simply contended that the complaint is not maintainable without impleading proper and necessary party. On the contrary in the written arguments submitted on 04/08/2016 specifically taken contention that the manufacturer is not made a party in this proceedings which is mandatory as per ruling of Hon’ble National Commission. The opponent no.1 produced the citation II (2017) CPJ 462 in case of Bhagwan Singh Sekhawat V/s R.K. Photostate and Communication and others wherein under section 2(1)(f),14(1)(d) and section 21(b) of Consumer Protection Act, 1986 held that the complainant has not impleaded manufacturer as OP hence, complaint not maintainable without impleading manufacturer. The National Commission followed the decision of Hon’ble Supreme Court 2015 SCC online NCDRC 3226 Rajendra Kumar Jain v/s Radhakrishnan Enterprises wherein it is held that without impleading manufacturer as a party complaint is not maintainable. The same view was taken by another co-ordinate bench of the Apex Court in 184(2011) DLJ 675 = 2015 SCC online NCDRC 4509 Shashank Shekar v/s Mahesh Kumar. In view of the law laid down by the Hon’ble Supreme Court this complaint is not maintainable since the complainant has not impleaded the manufacturer of TV i.e., Samsung Company. Though the complainant proved that the TV supplied by opponent no.2 is defective but she is not entitled to any relief since she has not impleaded the manufacturer of the said TV Samsung Company. For the above reasons, we proceed to pass the following;
O R D E R - The complaint filed by Smt. Neethu Rai w/o. Ranjan Rai, resident of Virajpet, Kodagu District fails hence, it is dismissed without cost.
- Furnish copy of the order to both the parties at free of cost.
(Dictated to the Stenographer, got it transcribed, corrected and pronounced in the open Forum on this 29th day of SEPTEMBER, 2018) (C.V. MARGOOR) PRESIDENT (M.C. DEVAKUMAR) MEMBER | |