ARUNA SINGHAL vs TEXLA TELEVISION, JUPITER RADIO (REGD.)

THIS appeal under Section 15 of the Consumer Protection Act, 1986 ("the Act" herein) is directed against the order dated 10.7.1990 passed by the District Forum, Jaipur in Complainant Case No. 453/90 by which the complaint was dismissed.

THE complainant-appellant purchased a colour T.V. Texla, Model No. 2042 III Sr. No. 32019 on 20.2.1985 vide Cash Memo No. 22 dated 20.2.1985 from M/s Venus Electronics, Katewa Mansion. Shastri Nagar, Jaipur a dealer of Texla T.V. under the distributorship of M/s Avantika, 24, Jayanti Market, Jaipur which closed the shop long back. It is said that the T.V. was defective from the date of its purchase, inasmuch as its colour contrast was very poor and picture was not bright. This defect was reported to the dealer immediately who sent his technician 2-3 times but its performance could not improve. THE dealer is said to have replied that the colour contrast; will automatically improve and it will give better and pleasant picture with the lapse of time. THE complainant relied on the assurance. He approached M/s Avantika for rectification of defect in T.V. set. M/s Avantika sent its technician who failed to rectify the defect. According the complainant, the matter went on lingering. Ultimately a reply was given that M/s Avantika cannot do anything as the warranty period was over. THEreafter the complainant carried the T.V. set to the service centre of M/s Texla at Jaipur. He was told that the picture tube was defective and its only solution is the replacement by a new one. THE complainant was asked to pay the cost of the colour tube to which he did not agree. THEreafter certain letters and notice were also sent. THE notice was sent through the advocate on 23.8.1989. Meanwhile the complainant got reply from the firm through the advocate that picture tube can be replaced against the real cost and that other charges like replacement charges etc. shall not be realised. THE grievances of the complainant as mentioned in the complaint are that the T.V. set is defective right from its purchase that the dealer, the distributor and the firm avoided the matter wilfully to pass warranty period despite requests, that a sum of Rs. 7,400/- has been blocked since 20.2.1985, that the complainant had been deprived of many useful and entertaining programmes of Doordarshan and on account of that she suffered mental tension and physical pain and that she had go to the dealer and had to pay advocates for sending notice etc. It was prayed by her that the T. V. set may be got replaced by a new one. She claimed the following amounts : 1. Expenses for notice Rs. 700/- 2. Expenses for visiting the dealer repeatedly Rs. 500/- Hardship and agony because of deprivation of information from T.V. Rs. 5,000/-

Interest was also claimed @ 18% p.a. on the amount paid i.e. money which is blocked because of the defective T.V. w.e.f. 20.2.1985 until the replacement 3. The complaint was filed before the District Forum, Jaipur on 20.4.1990. The complainant submitted photostat copies of the letters etc. with the complaint together with the cash memo and receipts evidencing payment made. On behalf of the opposite party version of the case was submitted before the District Forum contesting the complaint. It was admitted that the T.V. set was purchased in February 1985 from the local dealer in Jaipur. It was denied that the set was defective from the very beginning, for, the first letter of the complainant which is addressed to the opposite party was of 22.8.1988. According to the opposite party the T.V. set worked satisfactorily for more than three years. It was averred that the report was lodged in August 1988 after the expiry of the warranty period. A reply was sent to the notice of the advocate stating that the picture tube has given way after working of nearly four years and since the warranty period has been expired, the opposite party is ready to repair the T.V. set but the cost of the component needed to be replaced should be borne by the complainant. The sheetanchor of the defence is that though the warranty period has been expired still the opposite party is ready to replace the picture tube on its real cost without any other service charges. It assured for the cooperation of rendering free service in replacing the picture tube. The complainant submitted rejoinder to the reply of the opposite party on 11.6.1990 controverting the allegations made in the complaint and reiterated the averments made in the complaint. Both the parties submitted documents in support of their pleadings. The complainant filed her affidavit stating the various dates on which complaints were made for rectifying the defects in the T.V. set which was purchased from M/s. Venus Electronics. The opposite party did not file any affidavit in support of the version of the case. The District Forum heard the arguments on 6.7.1990 and passed the impugned order on 10.7.1990. In the impugned order it wrote that T.V. set was purchased on 25.12.1982. It appears from the impugned order that the first complaint was made on 22.8.1988 which was after the expiry of the warranty period. According to the District Forum the dealer and shop-owner were not made parties to the complaint and only manufacturer was impleaded who was beyond the jurisdiction of the District Forum. Taking note of the fact that the opposite party was ready to replace the colour tube by recovering real cost of it and without service charges, it dismissed the complaint. The complainant was dissatisfied with the order passed by the District Forum. She, has, therefore, submitted the appeal. 4. With the appeal photostat copies of the documents, bills, letters etc. were submitted. Reply to the appeal was submitted on behalf of the Jupitor Radios on 19.12.1990. The copy was served on the appellant The reply to the appeal though purports to be supported by an affidavit but that affidavit has neither been verified nor attested which is below the reply. We heard Mr. S.K. Singhal, authorised representative of the appellant and Mr. Vijai Raheja, Service Engineer on behalf of the respondent and carefully examined the record in the light of the submissions made by the parties and examined the order under appeal with requisite case.

THE District Forum in the impugned order has stated the date of purchase as 25.2.1982 and the complaint was made in 1985. This is wrong. THE T. V. set was purchased by the complainant in February 1985 that is amply borne out from the cash memo submitted by the complainant. Similar is the averment made in para 1 of the complaint. In the version of the case it was also admitted by the opposite party that the T.V. set was purchased in February 1985 from the local dealer in Jaipur. THE complainant made complaints about the defects in the T.V. set on 13.3.1985, 22.4.1985, 27.7.1985, 7.10.1985, 10.1.1986, 5.2.1986 and 25.4.1986. Except the last complaint dated 25.4.1986 all the complaints were made within the warranty period as the T.V. set was purchased in February 1985. THE complainant with the complaint has given affidavit dated 17.4.1990 stating the dates on which the complaints were made to M/s Venus Electronics and M/s Avantika. This affidavit has not been controverted by the opposite party. It was wrong on the part of the District Forum to have held that the first complaint was made in 28.8.1988. In the affidavit, in front of some of the dates, complaint numbers have been mentioned. It is surprising that the opposite party did not produce its complaint register to show that the numbers of the complaint which have been mentioned in the affidavit of the complainant are in correct. THE District Forum was, therefore, not right in holding that the complaint about defective T.V. set was made after the expiry of the warranty period. THE District Forum seems to have been influenced by the fact that the manufacturer was only impleaded as a party and not the dealer and shop owner. In case of manufacturing defect in T.V. set the manufactuer is a necessary party and not the dealer or the person who sells T.V. It has been held by the National Commission in Western India State Motors v. Sobhagmal Meena (First Appeal No. 12 of 1989 decided on 8.11.89, I (1991) CPJ 44 (NC) that in case of a claim for replacement of the vehicle or for damages on account of manufacturing defects, the award of relief could only be against the manufacturer who had given the warranty. Thus, manufacturer was rightly impleaded as opposite party to the complaint as it has given the warranty. Under Section 11 of the Consumer Protection Act, the complaint can be filed within the jurisdiction of the District Forum where whole or part of the cause of action has arisen. In this case T.V. set was purchased at Jaipur from the dealer, the cash memo was issued at Jaipur, and the payment of the price was made at Jaipur and therefore, the District Forum at Jaipur could take cognizance of the complaint filed by the complainant. THE fact that the manufacturer was outside the jurisdiction of the District Forum, will not affect its jurisdiction to entertain, hear and try the complaint. The T.V. set was purchased in February, 1985. The defect was reported to the dealer immediately on 13.3.1985 and also subsequently. The company ought to have produced the dealer''s complaint register in which the complainant-buyer has lodged the complaints about the T.V. purchased from them. It is significant to note that the manufacturing company has not challenged or denied the dates on which the complaints were lodged for the defects of the T.V. set by the complainant with the dealer and distributor. The warranty card contains certain conditions. Condition No. 4 is as follows : - "Defective parts of components will be replaced free of charge by the Company under terms of this warranty only if the same is/are return..company carriage paid through recognised Texla TV dealer or direct".

AS per the warranty card which is on record the Company guaranteed to repair, replace and rectify or adjust any part(s)/component(s) free of charge. The seller provided the warranty card to the complainant, and that was on behalf of the manufacturer. It was submitted by the authorised representative of the appellant that the local dealer of Texla T.V. M/s Venus Electronics, Katewa Mansion, Shastri Nagar, Jaipur has closed the shop three years ago and M/s Avantika 24, Jayanti Market, Jaipur, (the dealer) ceased to be a distributor of Texla T.V. since long. The complainant made several complaints regarding defects in the T.V. set in question to the dealer and distributor of the company within the warranty period of 12 months, when the dealer failed to remove the defects and passed over the warranty period by assuring the complainant that the colour contrast will automatically improve. The complaints were made within the period of warrranty as stated above. The District Forum wrongly assumed that the picture tube worked properly for 3 years as the T.V. set was purchased in February, 1985 and the first complaint was made on 13.3.1985 and subsequently complaints were made on 28.4.1985, 27.7.1985, 7.10.1985, 10.1.1986, 5.2.1986 and 25.4.1986. To M/s Avantika complaints were made on 5.2.1986 and 25.4.1986. In these circumstances the District Forum was not right in holding that after the expiry of three or four years the colour tube could not be set right and according to the opposite party it cannot be rectified. The opposite party has said that it is ready to replace the colour tube on payment of real cost. It should have done so long before when the colour tube was found defective during the warranty period. AS the T.V. set purchased on 25.12.1985 was defective and it did not give proper service even within the warranty period, the opposite party was bound to replace it or set it right in such a condition so that it may give proper performance. It is, therefore, directed that the opposite party shall replace the picture tube of the T.V. purchased by the complainant within one month from the date of the receipt of the order and give a fresh warranty card for one year from the date of the replacement of the colour tube. The opposite party will further see that after the replacement of the colour tube, the T.V. works properly. The complainant has claimed compensation. The complainant has claimed various sums as detailed in the complaint from the opposite party. The opposite party has denied them in the version of the case. No evidence has been produced by the complainant in this regard. The National Commission in Smt. Kailash Kumari v. Narendra Electronics II (1991) CPJ 279 (NC) has observed as under : "In the circumstances such as those obtaining in the present case where it is practically impossible to adduce tangible evidence regarding the actual monetary equivalent of the petitioner, it is the duty of the concerned Redressal Forum to assess and determine in the light of all the evidence available in the case what amount would reasonably go to compensate the petitioner for the inconvenience, mental agony, etc. caused to the complainant on account of the negligence of the opposite party."

The complainant has not produced any evidence to substantiate her claim for compensation on various heads mentioned in the complaint. Even, she has not filed her affidavit. We have taken into consideration the facts and circumstances of the ease and are of the opinion that a sum of Rs. 1,000/- should be awarded as compensation for the inconvenience mental suffering etc. caused to the complainant. The respondent shall pay this amount to the complainant within one month from the date of receipt of the order, failing which he shall be liable to pay interest on this amount @ 12% from the date of the order until realisation.

THE appeal is allowed and the order dated 10.7.1990 passed by the District Forum, Jaipur in complaint Case No. 453/90 is set aside.

THE appeal is allowed to the limited extent as stated above. Parties shall bear their own costs in the appeal. Appeal allowed.