NANDILATH FRIDGE CENTRE vs K.C.SALIL KUMAR

OPPOSITE parties 1 and 2 in O.P. No. 462/1998 on the file of the Consumer Disputes Redressal Forum, Thrissur are the appellants.

COMPLAINANT''s case before the District Forum was that he purchased a Fusion Model Thomson Colour TV for Rs. 18,000/- from the first opposite party. Instead of handing over Serial No. 35701, the first opposite party gave him an old TV having serial No. 19016. He alleged the same would constitute deficiency in service as well as unfair trade practice. Therefore, wanted direction to the opposite party to replace the TV with the serial No. 35701 and to pay compensation of Rs. 25,000/-. In the version by the first opposite party though the first opposite party admitted to its having sold a Fusion Model Thomson colour TV for Rs. 18,000/- to the complainant, the further case of the complainant, in the place of TV with serial No. 35701 the first opposite party gave him the TV with serial No. 19016 is denied. He asserted that the TV that was sold to the complainant was serial No. 35701 which fact is recorded both in the bill as well as in the warranty. The second opposite party did not file version. Before the District Forum the complainant produced Exbts. P1 to P7. The first opposite party produced Exbts. R1 to R6. At the instance of the complainant the Manager of Nandilath Agencies filed an affidavit. On a consideration of the said material the District Forum found unfair trade practice and on that finding made the impugned direction to the opposite party to replace the aforesaid TV serial No. 19016 with a new one of the same brand or to refund Rs. 18,000/- along with compensation Rs. 5,000/-, costs was also awarded. It is the said direction that is under challenge at the hands of both the opposite parties in this appeal.

Learned Counsel for the appellant urged, that the District Forum went wrong in reaching the conclusion that as a matter of fact the first opposite party handed over the TV No. 19016 instead of serial No. 35701. It is urged by the learned Counsel that the very basis of the finding of the District Forum that the first opposite party is guilty of unfair trade practice is on the wrong understanding of the evidence. In support of the said argument learned Counsel pointed out that the District Forum misunderstood the affidavit filed by the Manager of the Nandilath Agencies as the affidavit filed by the opposite party. In the affidavit filed by the Nandilath Agencies which is a conducted by the brother of the first opposite party, the Manager averred in the affidavit that serial No. 190176 was told by the manufacturer to their concern, but to whom the same was sold could not be discovered as it is not usual for them to enter the serial No. of the TV in the bill and the same used to be entered in the warranty which would be in the possession of the person who purchased the same. This affidavit, it is pointed out by the learned Counsel, the District Forum mistook it as the one filed by the opposite party and that was one of the reasons for the District Forum to find that as a matter of fact the complainant was handed over TV bearing serial No. 19016. Then the learned Counsel alternatively urged, having regard to the scope of Section 14(1)(d) replacement of the TV could have been possible only when manufacturing defect is found for that matter, according to the learned Counsel, there was not even a case for the complainant that the TV was defective. Therefore, the very direction to replace the TV, itself according to the learned Counsel, is beyond the scope of Section 14 of the Consumer Protection Act, 1986. Lastly the learned Counsel urged, the compensation awarded is excessive as the same is more than what the complainant claimed in Exbt. P5 notice issued by the complainant. On the other hand the learned Counsel for the respondent sought to support the direction maintaining that Nandilath Agency and the first opposite party concern are one and the same and as a matter of fact the very statement made by the Manager of the Nandilath Agency that it is not possible to point out to whom the TV bearing serial No. 19016 was sold is a relevant circumstance in considering the case of the appellant. In support of his argument he made reliance on Exbt. P7 advertisement.

HAVING regard to the aforesaid arguments the first point to be adverted is, whether there was unfair trade practice inasmuch as the opposite party handed over TV bearing serial No. 19016 instead of serial No. 35701. Incidentally a question may also arise whether merely because a TV of bearing another serial number, was handed over, an inference could be drawn that the same is of lesser quality. Exbt. P1 bill would show that the complainant purchased a Fusion Model Thomson Colour TV paying of Rs. 18,000/- serial No. of the TV is mentioned as 35701. Exbt. P2 is the warranty card which also mentioned serial No. 35701. In Exbt. P5 notice as well as in his affidavit it stated, instead of T.V. with serial No. 35701 he was handed over T.V. bearing serial No. 19016. It is to establish probability of the said case that the complainant required the Nandilath Agencies to produce the invoice and the bills concerning the sale of serial No. 19016. The Manager of the said concern did not produce the same though filed an affidavit admitting to their having received serial No. 19016 and also to their having sold it, but maintained that they could not find out to whom the TV was sold as according to them it is not usual practice to mention the serial No. in the bill; it is averred that the serial No. would be mentioned only in the warranty card which could be in the possession of the person purchased it. These materials are necessary and relevant in appreciating the probability of the case of the complainant and the said appreciation necessarily has to be in the back drop of the advertisement. Exbt. P7 advertisement is in the Mathrubhoomi Malayalam daily dated 1.1.1999 the offer is for the sale of the TV, refrigerator and other equipments. The advertisement offers to sell the said products on discount rate and the same is published in the caption ''Nandilath New Year Discount Mela''. The same mentions that the concerns are at Kuruppam Road, Thrissur, M.G. Road, Thrissur, Nada, Irinjalakkuda, G.B. Road Palakkad, Main Road, Chalakkudy. It is clear from the advertisement, the advertisement was made jointly by all these concerns of Nandilath. The relationship of the Nandilath Agencies and the first opposite party concern thus is clear from Exbt. P7. What is revealed from the affidavit of the Manager of Nandilath Agencies in relation to Thomson Colour TV No. 19016 assumes importance when the complainant''s grievance is instead of giving him TV with serial No. 35701 he was given 19016. It is not totally different or stranger concern who got serial No. 19016 from the manufacturer. The case of the withholding the name of the person to whom the same was sold is on the solitary ground that it is not in their habit to mention the serial No. of the TV in the bills. The concerns who are so much together as is revealed from Exbt. P7, one of which is the first opposite party clearly states, the number of the TV is in the bill Exbt. P1. The business practice when is considered in the said context of the case of the Manager of Nandilath Agency that it is not usual for ever to mention the serial number in the bill becomes improbable. Then, an inference could be drawn from the same that the withholding of the name of the person to whom the TV was sold is an eloquent circumstance which if revealed could have been supported the case of the complainant. The materials before the District Forum thus is capable of an inference that TV with serial No. 19016 was available or made available for being handed over to the complainant. The next question in this connection is, simply because the TV of an earlier serial number was handed over, whether an inference is possible that the same is of lesser quality. The value of a particular material especially one like TV would also depend upon the time of its production, a later production will have more marketable quality than the one which was produced at an earlier stage. Therefore, one cannot say that the handing over of a TV with earlier serial number would not make difference. When such is the situation, the same could generate an inference of unfair trade practice for the said data satisfies the ingredients of unfair trade practice. Therefore, the said finding cannot be called in question.

NOW the next point consideration is whether the relief now granted by the District Forum would fall within the scope of Section 14(1)(d). According to the learned Counsel as has noticed, since the complainant has no case that the TV suffers from any defect, a direction to return the purchase price of the TV or replacement of the same could not have been made; for according to the learned Counsel as per Section 14(1)(f) only when the defect is proved could such direction be made. Section 2(i)(f) of the Consumer Protection Act, 1986 defines ''defect'' to mean any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which has to be maintained would be defect. We have already adverted to the fact that an earlier production of a TV when compared with a later production would be of lesser quality unless the contrary is proved. The defect, as understood in the definition being satisfied, the direction made to replace the goods or in the alternative to return the purchase price cannot be faulted. Lastly the question that remains for consideration is, whether the compensation now awarded is on the higher side. Exbt. P5 notice claims only Rs. 3,000/- as compensation, certainly complainant could have felt inconvenience and is compelled to use a TV of a lesser quality, for which he is entitled to be compensated, that compensation cannot be in excess of what he claimed in Exbt. P5. Therefore, the compensation fixed has to be reduced to Rs. 3,000/-. The direction made by the District Forum, therefore, deserves modification in the matter of award of compensation which has to be reduced to Rs. 3,000/-. Apart from the same, when the first opposite party replaces the TV with a new one of the same brand, complainant has to return the TV with serial No. 19016 to the first opposite party. The modified direction as above shall be complied within a period of one month from the date of receipt of the copy of this order. The appeal is allowed to that extent. In the circumstance, in this appeal there will be no order as to costs. Appeal partly allowed.