DYNA VISION LTD. vs SUDHAKARA KAMATH

THIS is an appeal preferred against the order of. the Ernakulam District Consumer Disputes Redressal Forum in OP No. 171 of 1990 dt. 30.10.1990. In this order the Appellant/Opposite Party has been required to replace the Test-JIG picture tube in the Dyanora Colour TV of the Respondent with a new Philips picture tube at the Appellant''s cost and to pay Rs. 2,000/- by way of compensation.

THE case of the Respondent was that he purchased a 20" Dyanora Colour TV set bearing serial No. 304308 and model No. CT 402 PL manufactured by the Appellant, from their authorised dealers, Fride House, M.G. Road, Kochi on 16.9.1985. THE guarantee of the set was for a period of one year. On 16.9.1988 i.e. after 3 years of the purchase the T.V. became defective which was reported to the Appellant and as per their directions it was taken to their service station at Ravipuram, Kochi. THE set was repaired by their service Engineer, after collecting Rs. 762.50 by way of cost of an item replaced-L.O.T. (Line output transformer) and other charges. THE T.V. had to be brought to the service station again on 20.9.1988 because of poor performance. It was again reparied by the Appellant. This time they kept it for a period of 26 days with them for check-up and returned on 17.10.1988. THE respondent noticed that the performance of the set after the second repair was gradually becoming defective. He also noticed that the connecting-chord was different from the original and of a shorter length. On a close scrutiny he detected that his original Philips picture tube and the PCB were replaced by an old Korean picture tube and a different P.C .B. On the next day itself i.e. on 18.10.1988 the respondent/complainant made a written complaint to the service Engineer of the Appellant''s service centre that his original picture tube and his P.C.B. had been replaced by them without his consent. When there was no positive response to this complaint, he brought it to the notice of the General Manager of the appellant Company in Madras through a registered letter. THE Appellant did not admit the alleged replacement at first. When the Respondent repeatedly wrote to them giving them the exact number and description of his Philips picture tube, the Appellant had to admit the fact in Ext. A9 their letter dt. 17.4.1989 to the Secretary, Alwaye unit of the Consumer Guidance and Research Society of India. But they did not change their stand that the P.C.B. in the set was not replaced. THE Respondent at first personally and then through the Consumer Guidance and Research Society of India, Alwaye and Kottayam branches tried his best to set matters right. But the Appellant did not take any step to fix the Respondent''s original picture tube back. So he filed the complaint with the Consumer Disputes Redressal Forum, Ernakulam praying that the opposite party Dynavision, Kochi be directed to replace his defunct T. V. set with a new one of the same model or with a set of similar standard and to pay him a compensation of Rs. 25,000/-. The Appellant/Opposite party filed their version wherein they have denied the allegations against them and their liability to replace the T.V. set or to pay any compensation. According to them it was under great pressure and persuasion of their dealers, Fridge house, Kochi and on the special request of the Respondent/ Complainant that some how or other the defective set should be made functioning in order to facilitate him view the opening ceremony of Olympics, the next day, that they repaired the T.V. on 17.9.1988. They had to change the L.C.T. and since the original picture tube in the set was defective they substituted their Test-JIG picture tube as a stop gap arrangement to make the set operative and handed it over to the Respondent with instruction to return it after seeing the proposed Olympics ceremony. The fact that the nonfunctioning original picture tube was substituted by the test-JIG picture tube was known to the respondent as all this was done in his presence and with his knowledge. When the set was brought back to the service centre on 20.9.1988 they made a thorough check-up which confirmed the fact that the original picture tube has become defective and they informed this fact to the Respondent. The Respondent took back the set on 17.10.1988. The appellant alleges that by mistake they forgot to take back their Test-JIG picture tube in the set when it was returned to the Respondent on 17.10.88. They also claimed that this fact was made known to the complainant over the phone the next day itself and had asked him to return the set for necessary replacement of the picture tube. The Respondent did not oblige; instead he asserted that the appellant has deliberately removed the original non-defective picture tube of his and substituted a poor quality picture-tube and replaced the PCB also. But the case of the appellant was that the respondent was knowingly playing a trick to get his defective picture tube changed for a functioning one free of cost. They have also challenged the claim of the Respondent to compensation.

Copies of 12 documents from the complainant''s side and 15 from the opposite party have been furnished. There was no oral evidence from either side. On the basis of the documents and arguments of both parties the District Forum has concluded that the Appellant has changed the original picture tube in the T.V. set of the Respondent for another one without his knowledge and consent and also that the complainant has incurred unnecessary expenses and suffered mental agony and tension. However, they did not accept the argument that the P.C.B. was replaced as there was no conclusive evidence to that effect. Based on the findings the impugned order was passed by the District Forum.

THE arguments on the part of the Appellant''s learned Counsel before us to quash the order of the District Forum mainly centred round the stand that the original picture tube in the T.V. set of the Respondent was defective and that their Test-JIG picture tube which was substituted on 16.9.1988 as a stop gap arrangement with the knowledge of the Respondent to facilitate him view the opening ceremony of Olympics was inadvertently omitted to be substituted with the original defective picture tube, when the set was returned to the respondent on 17.10.1988 after the thorough check-up. Though the learned Counsel could advance vehement arguments in this respect he could not produce any convincing evidence to support the argument that the original picture tube was really defective and that their Test-JIG picture tube was inadvertently omitted to be removed when the T.V. set was returned by the service centre on 17.10.88. It remains an unbelievable story that the well equipped service centre of a T.V. manufacturing Co., maintaining foolproof records relating to items accepted for repair and return of items to customers after repair, delivery challan cum gate pass with relevant entries for removing any item from the service station etc. did not make any check-up of the T.V. at the time of delivery of the T.V. set in question on 17.10.1988 after keeping the same with them for 26 days for check-up and observation. Further the Respondent''s letter dt. 17.10.1988 which was acknowledged by the appellant on 18.10.1988 i.e. the very next day of taking delivery of the T.V. set goes so show that he was alert in informing the Appellant of the replacement of the original picture tube by a Korean picture tube at their service centre. He has done this immediately on the fact coming to his knowledge. On the other hand the alleged omission to take back the Test-JIG picture tube by the Appellant was mentioned by them for the first time in a record only on 17.4.1989 i.e. nearly 6 months after the complaint of substitution of picture tube was made by the Respondent (vide ext. A9 letter to the Secretary, Alwaye unit of Consumer Guidance and Research Society of India). It may also be noted that although a number of letters (exhibits A4, A5 and A6) have been sent by the appellant to the respondent in the meantime they are conspicuously silent on this alleged inadvertant omission of replacing their Test-JIG picture tube. All these are circumstancial evidence that go against the pleadings of the Appellant. In these circumstances we are constrained to conclude that the allegation of the original picture tube of the Respondent of the original picture tube of the respondent being defective lacks in bona-fides. THErefore we do not find any ground to interfere with the findings of the District Forum regarding the original picture tube. Since the original picture tube (Philips) has been lying with the appellant for a long time in dispute the District Forum has upheld the pleading of the complainant that it would have become damaged. So they have directed the Appellant to fix a new Philips picture tube of good condition in the T.V. set in the place of the present picture tube therein free of cost. But the learned Counsel of the Appellant had drawn our attention to the fact that Philips picture tubes are no longer available in India as they are not imported now. It that be so, as an alternative, we order that the appellant may fix at their cost in the respondent''s T.V. set an available new, defect-free, picture tube of equal quality and standard as that of the original picture tube. Considering the mental strain caused to the respondent by this issue and unnecessary expenses that had to be incurred by him in connection with the proceedings we do not feel that the award of Rs. 2,000/- by the District Forum as compensation payable to the Respondent is unreasonable and so we do not intend to upset that part of the order. THE original order of the District Forum, Ernakulam will stand amended to the above limited extent. THE appeal stands dismissed with no order as to costs Appeal dismissed.