JAYPEE ELECTRONICS PVT. LTD. vs P. KRISHNAMURTHY

THE 1st opposite party made an advertisement in the newspapers stating that the 1st opposite party being the sole distributor for Akai colour televisions, would be exchanging the colour TVs of any brand with a new Akai colour TV for a lesser price. According to the complainant he made inquiries with the 1st opposite party who directed him to the 2nd opposite party. THE complainant who was having an Uptron colour TV, in good faith took the same to the 2nd opposite party and got in exchange an Akai Model CT 2107 and the complainant was asked to pay the price of Rs. 12,290/- as against the cost price of Rs. 21,290, stating that the Uptron TV of the complainant was valued at Rs. 9,000/- and it was deducted from the bill and, therefore, the complainant as to pay Rs. 12,290/-. After installation of the same, the complainant found that there were colour patches and imperfection and, therefore, he went on many occasions to the 1st opposite party and complained about the same. THE 1st opposite party sent another Akai TV after much correspondence and complaints in exchange for the Akai TV already supplied to the complainant and the same was also found to be defective with colour erasures in certain parts of the TV screen and deep colour patches in other parts. Thus the picture tube was very weak and bad. THEre was defect in the performance and therefore the complainant informed the 1st opposite party again and requested them for replacement. THE complainant had been supplied with a third set and it also developed a snag and there was defective functioning of the same. THE display of the channels was hardly visible on the screen and the images appeared on the screen only long after it was switched on. THE complainant thus came to the conclusion that the opposite parties have tricked the complainant and induced the gullible public into believing that in the "Exchange-Mela" they would sell good and standard colour televisions in exchange for the old sets. But on the other hand they have been marketing deficient, defective and below-standard television sets by way of "Exchange-Mela". Thus the complainant was deceived by the false representation by such "Exchange-Mela" where only old and defective televisions which are of bad quality are being exchanged. Hence, there is not only deficiency of service but also unfair trade practice in the sale. THErefore, the complainant prays for a compensation of Rs. 50,000/- and for refund and reimbursement of the cost of the Akai TV in a sum of Rs. 21,290/- and costs.

THE 1st opposite party filed a version stating as follows : It is true that the advertisement appeared in the Dailies regarding the exchange of television sets at a price. THE 1st opposite party was a distributor initially, but it has now ceased to be a distributor. THE complainant came to the 1st opposite party and had his television set exchanged on three occasions. THE replacements were made to the best satisfaction of the complainant. THE other averments are not admitted. As a distributor, this opposite party only passed on the television sets which have been marketed by Akai company. THE complainant has made an imaginative and exorbitant claim against this opposite party. Instead of filing a suit, he has approached the Consumer Forum claiming compensation which is fanciful. THE complainant having failed to claim against Akai Company, the manufacturer, the 1st opposite party is not liable. THE complaint is not maintainable before this Forum. The 3rd opposite party has stated as follows: The 1st opposite party was the sole distributor and the 2nd opposite party is one of the dealers who sold Akai Colour TV Model CT 2107 on 10.8.1996 under exchange scheme. No false representation was made to the complainant to purchase their TVs The complainant voluntarily accepted the exchange scheme and surrendered his old TV The 3rd opposite party has no information about the correspondence that took place between the 1st opposite party and the 2nd opposite party and the complainant. The 3rd opposite party''s branch office at Chennai was started on 1.6.1997. The 3rd opposite party was in no way responsible. On moral gesture the request of the complainant to rectify the repairs in the TV set was carried out though the case proceedings are under way and the TV set has been returned to the complainant on 15.10.1997. The 3rd opposite party is, therefore, not liable.

The lower Forum accepted the complaint and directed the opposite party Nos. 1 to 3 to pay a sum of Rs. 21,290/- to the complainant with a compensation of Rs. 5,000/- and cost of Rs. 500/-. Hence the 1st opposite party has come up with this appeal.

THE learned Counsel appearing for the appellant/1st opposite party raised two main contentions. One is that he has ceased to be a dealer and the other is that in view of the pronouncement of the National Commission in a batch of revision petitions viz., R.P. No. 1916/2000 and batch wherein it has been held that a dealer is not liable and only the manufacturer would be liable, the 1st opposite party is not liable. Now, adverting to the first point, the complainant has given a notice before laying the complaint. The complainant has specifically stated therein that pursuant to the advertisement that appeared in the newspapers informing about the "Exchange-Mela", the complainant met the 1st opposite party being the sole distributor, who directed him to approach the 2nd opposite party for exchanging the television set and, therefore, accordingly the complainant approached the 2nd opposite party. From the records, we find that the complainant replaced the first set in exchange. This was found to be defective and again the complainant approached the 1st opposite party who supplied with him another set and took back that set and since that also did not function properly, he had to come forward with this complaint. His case is that he approached the 1st opposite party who directed him to the 2nd opposite party from whom the purchase was made in exchange, the complainant exchanging his old Uptron television set in lieu of Akai television set. As the same did not function properly it was replaced twice by the 1st opposite party. Stating all these, the complainant has issued a notice to both the 1st and the 2nd opposite parties. But they have not chosen to send any reply. For the first time he says in his version that he has ceased to be a dealer and the distribution is now done by the 3rd opposite party. The Akai TV pamphlet produced by the complainant and marked as Ex. A-1 contains the list of sales and service centres, in which, we find the name of the 1st opposite party viz., the appellant herein, shown as one of the sales and service centres. The 1st opposite party has not produced any document before the lower Forum to show that he has ceased to be a distributor. Mere assertion in the version is not enough. The opposite party ought to be in possession of the records to show that this dealership has been terminated or transferred or changed. Those records are not produced. Therefore, it is an assertion made by one party and denial by another party. As noted earlier, the 1st opposite party has not chosen to send any reply or take such a stand when he had an opportunity at the earliest stage to do so. Having failed to do that and having failed to produce any document, in the factual canvass of the materials displayed before the lower Forum, it is impossible to accept the interested version of the 1st opposite party viz., the appellant herein to hold that he has ceased to be a dealer.

COMING to the other point, which is based upon the judgment of the National Consumer Disputes Redressal Commission, New Delhi, we find that this judgment cannot fit in to the facts of this case on hand. There, M/s. Sundaram Motors acted as a dealer to the manufacturers of the car M/s. Pal Peugeot Ltd. It was a case where M/s. Sundaram Motors, in accepting the dealership agreement, received amounts favouring M/s. Pal Peugeot Ltd., Mumbai, from individuals who desired to book the car pursuant to various newspaper advertisements given directly by M/s. Pal Peugeot Ltd. for priority-cum-registration of Pal Peugeot 309 cars. But the manufacturers were unable to deliver the car. Therefore, the complainants filed the complaints before the District Forum against M/s. Pal Peugeot Ltd. and M/s. Sundaram Motors. The District Forum directed both the parties to refund the amount received with interest. But the State Commission held that both M/s. Pal Peugeot Ltd. and M/s. Sundaram Motors are to be held jointly and severally liable. But this finding of the State Commission was set aside by the National Commission which held that only the manufacturer is liable and allowed the revision petitions. But what we are confronted with in this case is quite a different factual matrix. Here, an "Exchange-Mela" was held or organized where the public were invited to give their old television sets and take back new television sets. Pursuant to such "Exchange-Mela", the complainant handed over his old Uptron TV set and took a new Akai TV set for which he paid a sum of Rs. 12,290/- as against the actual price of Rs. 21,290/- and the difference of Rs. 9,000/- was the sum which was fixed as the value of the old Uptron TV set of the complainant that was exchanged for. This was purchased from the 2nd opposite party whereupon, as the complainant was not satisfied with its performance he had it replaced by the 1st opposite party on two occasions and the third set that was taken in exchange also did not perform well, the complainant has come forward with this complaint. Thus we find that the facts here are quite different from the set of facts that fell for consideration before the National Commission. M/s. Baron International Ltd. has also executed a warranty under Ex. A-3 stating that it "warrants to the purchaser of each Akai Colour TV that it is free from defects in material and components which proves to suffer from a manufacturing defect within a period of one year from the date of purchase. ... " Here in this case, it is not the case of any of the opposite parties that the defects pointed out by the complainant were not manufacturing defect. It is also not their case the defects developed beyond the period mentioned in the warranty. Therefore, on the face of Ex. A-3 Warranty and in the circumstances, it is clearly a case of deficiency. The decision of the National Commission cannot at all apply to the facts of this case. The case on hand shows how the manufacturer, the agent and the dealer join hands to push off their defective products on gullible and unwary public in the guise of "Exchange-Mela" by making such attractive offers which are really neither attractive nor worthy. Such offers are at best, a novel and ingenious way resorted to by persons to dispose of their unmarketable and sub-standard products and dump them on the public who are the ultimate losers in the bargain. Therefore, we have no hesitation in holding that this is a clear instance of unfair trade practice and a categoric case of deficiency in service for which the lower Forum rightly held them liable. Therefore, we hold that these two points raised by the appellant have to be held against them and consequently it follows that there is no merit in this appeal. In the result, the appeal is dismissed with costs of Rs. 1,000/-. Time : Two months. Appeal dismissed.