IN THE CONSUMER DISPUTES REDRESSAL COMMOSSION, ALAPPUZHA
Thursday the 23rd day of December, 2021
Filed on 08.07.2020
Present
1. Sri.S.Santhosh Kumar.BSc. LLB(President)
2. Smt. C.K.Lekhamma. BA,LLB(Member)
In
CC/No.151/2020
Between
Complainant:- Opposite parties:-
Sri.Jalaludheen 1. The Manager
Kopparapadeettathil Reshmi Happy Home
Chunakkara South Ganam Junction, K.P.Road
Charummoodu.P.O Kattanam, Pallickal.P.O-690503
(Party in person) (Exparte
2. The Manager
BLUE BERRY
Door No. IV/6-Z,21B,
Pournami Plazza Building,.
Thaikkad.P.O,Chowallurpady
Guruvayoor, Trissur-680104
(Adv. Iqbal A.Muhammed)
O R D E R
SMT. C.K.LEKHAMMA(MEMBER)
1. Brief facts of complainant’s case are as follows:-
The complainant had purchased a 32” Smart Android LED TV, manufactured by the 2nd opposite party, from the 1st opposite party on 18/6/2020. The same was installed in his house on 19/6/2020 by the technician named Prasad and Demo was shown. Half an hour after the demo the picture of the TV was stopped and the same was informed to the said technician right now. A complaint was lodged RegNo.1311806200455. The same technician visited the complainant’s house on 22/6/2020 and after his inspection he detected a crack on the panel. He says that he would inform the 2nd opposite party about the problem and solve the same. But later he informed that no chance to replace the panel. The 1st opposite party, dealer also informed that the 2nd opposite party demanded to pay Rs.6,500/- to replace the panel. According to the complainant the product having 3 years warranty and he is not able to pay said amount to the opposite parties.
The complainant’s daughter, who is studying in 7th class and for the purpose of attending her online class the complainant, purchased this TV. Due to the adamant attitude of the opposite parties, the complainant and his family suffered mental agony more over his daughter could not attend the online classes. Hence the complainant approached this Commission for following reliefs sought against the opposite parties.
i. Direct the opposite parties to replace the disputed TV or in the alternative to refund the price of the same.
ii. Direct the opposite parties to pay compensation for deficiency in service and cost of the proceedings.
2. The 1st opposite party remained exparte.
3. The version of the 2nd opposite party is as follows:-
There is no dispute with regard to the purchase of the disputed TV. The technician of the 2nd opposite party installed the same and shown demo. Further it is admitted that half an hour after the demo, the TV became defunct. The matter has been informed to the same technician and he filed complaint. As per the said complaint the technician has inspected the TV. The other contrary allegation are denied by the said opposite party. On 22/6/2020 the technician of this opposite party inspected the TV and found a crack on right below corner of the display panel and convinced it is due to the carelessness and negligence on the part of the complainant, which cannot be happened without an external force. So the crack was occurred only because of the improper handling on the part of the complainant and not because of any manufacturing defects. The said defect is not covered under the warranty conditions that rightly informed the complainant by the technician. Therefore, the complainant is not entitled to get any of the reliefs from this opposite party. Yet the technician informed the complainant that the amount of the panel will be charged and service charge will be exempted. But the complainant was not amenable to make payment. The complainant approached this Commission with unclear hands since he suppressed the fact of crack appeared on the display panel.
The disputed product was installed and the complainant was convinced its smooth functioning. The crack was happened later hence there is no manufacturing defect in the product supplied by the 1st opposite party. Hence, there is no deficiency of service on the part of this opposite party.
4. On the above pleadings following points were raised for consideration:-
1. Whether there was any deficiency of service on the part of the opposite party?
2. Whether the complainant is entitled to get the TV exchanged with a brand new one or in the alternative, whether the complainant is entitled to realize Rs.13110/- the price of the disputed TV along with interest?
3. Whether the complainant is entitled to realize compensation from the opposite party?
4. Reliefs and costs?
5. The complainant appeared in person. Evidence in this case consists of the oral evidence of PW1 and Ext.A1 to A3were marked from the side of the complainant. The witness of the 2nd opposite party was examined as RW1 and Ext.B1 to B5 were marked from their side. The 1st opposite party remained absent and declared them exparte. The 2nd opposite party filed argument notes. We have heard both sides.
6. Points Nos. 1 to 3:-
PW1, the complainant purchased an LED TV, from the 1st opposite party, manufactured by the 2nd opposite party on 18/6/2020 for an amount of Rs.13110/-. The product has 3years warranty. According to PW1 on the same day itself the product was installed in his house by one Prasad, the technician of the 2nd opposite party and demo was shown. After half an hour the product became defunct and the same was informed to the said technician immediately. The technician himself filed complaint and on 19/6/2020 he inspected the TV and found a crack on the panel of the TV. But he informed that said crack was not due to the manufacturing defect and it occurred due to the negligent handling of the product by the complainant. Even though the product is under the warranty, they want money for repairing and replacement of the panel. According to the complainant said contention of the opposite party is not correct. Hence, he approached this Commission for seeking direction to replace the product or in the alternative for the price of the product. He is also claiming compensation on account of deficiency in service and cost of the proceedings.
The 1st opposite party remained absent and set exparte. The 2nd opposite party filed version mainly contenting that the product of them is not suffering any manufacturing defect. The product was installed their technician, the demo was shown and the complainant was fully satisfied about the product. In view of the registered complaint, the technician inspected the product and found a crack on the right below corner of the panel is only due to negligent handling of the product by the complainant. The technician had informed the complainant that the amount of panel will be charged and service charge will be exempted. But the complainant was not ready to accept said offer.
It is not in dispute about the date of purchase of the disputed TV and also not disputed about the alleged defect on the panel of the product. It appears that the product purchased on 18/6/2020 and after half an hour the product became defunct and on 19/6/2020 the defect has been detected. Ext.A1 is the bill of the product and the same was issued by the 1st opposite party. Ext.A2 are the coupons issued by the 1st opposite party. Ext.A3 is the copy of message sent by the complainant to the 2nd opposite party.
The technician of the 2nd opposite party inspected and found panel crack and they produced Ext.B1 photographs for proving the same. As per Ext.B2 warranty card in which it is mentioned that warranty does not cover damages caused by accident, misuse or any form of tampering. Ext.B3 is the operating manual of the said product. Ext.B4 is the copy of job card belongs to disputed TV. According to the opposite party the complainant was fully satisfied about the product after its installation and Demo. Then he signed Ext.B4. Ext.B5 dtd. 2/12/2021 is a receipt from Colours of Vision digital studio. In which nothing is mentioned about the name and address of person to whom they had issued the same. Under which circumstance the said document produced by the opposite party is not revealed by them. The 2nd opposite party mainly contenting that the product is not suffering from any manufacturing defect since their technician inspected and found that. The said technician was examined as RW1. In the absence of manufacturing defect the 2nd opposite party is not liable to replace or refund the price of the TV. In order to prove their part the learned counsel for the 2nd opposite party produced following decisions .
1. Muveen Khan Hyderabad Vs. M/s Malik Cars and Another [2010 (1) CPR 36(AP)]
In which it is held that to prove the fact of manufacturing defect expert opinion is required.
2. Maruti Udyog Ltd. Vs. Susheel Kumar Gabgotra & Anr.(JT 2006(4) SC 113)
Wherein the Hon’ble Supreme Court held that as per the agreement between the parties, the terms of which are contained in the warranty policy, if the said warranty policy provided and contains only for repairs and/ or replacement of defective parts, it is unwarranted and unjustifiable to direct replacement of the good itself.
3. SGS India Ltd Vs. Dolphin International Limited (2021 ICO 1560 )
Wherein the Hon’ble Supreme Court held that the onus of proof that there was deficiency in service is on the complainant.
4. Kumnari Namrata Singh Vs. Manager, Indus A Division of Electrotherm & Othrs. (2012 (3) CPR 570 (NC))
Wherein also observed that to prove fact of manufacturing defect expert opinion is required.
Admittedly the defect of the product occurred within the short span of time. Further it is admitted that a crack seen on the panel, that is the reason for non functioning the product. The defect is prominent and the same can be seen by naked eyes. So no expertise opinion is necessary. It is to be noted that the panel is the most important part of the TV concerned and the defect is not at all minor in nature. The conditions of the warranty is that if things don’t work as expected the warranty may allow the product to be returned, replaced or repaired and certain actions such as misuse, may render a warranty invalid. But not any evidence forthcoming to mishandling the
product by the complainant. In this case the doctrine of “res ipsa loquitor” can be applied, and the burden shifts to the opposite parties to prove that they were not negligent.
RW1, who is the technician of the 2nd opposite party. He inspected the product and found the defect. According to him the product is not suffering any manufacturing defect. The defect occurred due to the mishandling of the product by the complainant. During cross examination RW1 denied the question that “Thermal expansion h¶m TV s]m«patÃm (Q) icnbà (A) . But it is to be noted that whether RW1 is qualified enough to examine said product? Nowhere in his chief affidavit stating about his qualification and competency in that relevant filed. So in the absence of such evidence we are of the opinion that RW1 is not a competent person to examine the product. Moreover the complainant purchased said TV for the purpose his daughter’s study. So he purchased the product with great expectation and spent Rs.13,110/- as price of the TV. Ofcourse, he might have shocked and disappointed due to the fault of the product especially when it appears within the short span of time. Hence it is unbelievable that the complainant or his family members were handling the TV negligently . In the said circumstances the complainant suffered great mental agony which attributed deficiency of service. Therefore the 2nd opposite party is liable to pay compensation to the complainant. At the same time the 2nd opposite party being the manufacturer is liable to replace the disputed TV with new one of the same specification and model with fresh warranty. Failing which the complainant is entitled to get refund the price of disputed TV from the m 2nd opposite party. In view of the above discussions the decisions submitted by the 2nd opposite party is not applicable in this case.
Further that 1st opposite party the dealer is reluctant to appear before the commission even after the receipt of notice. The said product has been supplied by the 1st opposite party to the complainant. So the 1st opposite party is responsible for the quality of product sold to the complainant. They cannot avoid their liability simply on the ground that they were not a manufacturer since the privity of contract is between the complainant and the 1st opposite party. The said acts of 1st opposite party is amounts to deficiency in service. So they are also liable to pay compensation to the complainant.
In the facts and circumstances of the case we are of the view that both opposite parties are liable to pay litigation cost to the complainant since they ought to have settled the dispute at the very beginning. On the contrary they push the complainant in to an unnecessary litigation.
7. Point No.4:-
Accordingly, we allowed the complaint and direct as follows.
1. The 2nd opposite party is liable to replace the disputed TV with fresh one of the same description and price with fresh warranty. Failing which the 2nd opposite party is liable to refund of Rs.13,110(Rupees Thirteen thousand one hundred and ten only) to the complainant with interest @ 8% per annum from the date of complaint till realization.
2. The opposite parties 1 and 2 are jointly and severally liable to pay Rs.2000/- (Rupees Two thousand only) each to the complainant by way of compensation for deficiency in service.
3. Both opposite parties are jointly and severally liable to pay Rs.1000/-(Rupees Thousand only) each towards cost of the proceedings.
The above said order shall be complied within one month from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 23rd day of December, 2021.
Smt. C.K.Lekhamma(Member)
Sri.S.Santhosh Kumar(President)
Appendix:-Evidence of the complainant:-
PW1 - Jalaludheen.K.P(Complainant)
Ext.A1 - Original Bill dtd. 18/6/2020
Ext.A2 - Coupons (3nos)
Ext.A3s - Copy of mail.
Evidence of the opposite parties:-
RW1 - Prasad .M(Witness)
Ext.B1 - Photographs(2Nos)
Ext.B2 - Warranty Card
Ext.B3 - Operating Manual
Ext. B4 - Job Sheet
Ext.B5 - Bill dtd. 2/12/2021
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Compared by:-
