OPTONICA KALYANI SHARP INDIA LTD. vs GOPAL LAKHOTIA

THE unsuccessful opposite parties 1 and 2 in O.P. No. 626/1994 on the file of the District Consumer Forum-II, Hyderabad, are the appellants before this Commission. THE facts in brief are that an Optonica Colour T.V. manufactured by opposite parties 1 and 2 was purchased by the complainant on 15.11.1990 through the third opposite party, and it was burnt due to voltage flunctuations on 8.11.1992. THE complainant gave it for repairs to the servicing centre of opposite parties 1 and 2 on 9.11.1992 and obtained a receipt, Ex. A-3. Repairs were estimated at Rs. 9,000/- and for replacement of the colour tube at Rs. 7,850/- which is more than the cost of T.V.

THE grievance of the complainant is that opposite parties 1 and 2 widely advertised that the Optonica Colour T.V. is the product of a joint venture of Sharp Corporation, a Japanese concern, and is having in-built stabilizer system, and voltage fluctuation is no problem, and that no separate voltage stabilizer was required. Having seen the advertisement, the complainant approached the third opposite party who has also confirmed that no additional stabilizer is required. On believing his representation, the complainant purchased the T.V. and started using it without a stabilizer, but on 8.11.1992 it was burnt. The opposite parties demanded payment of repair charges, but the complainant insisted for free repairs, as opposite parties 1 and 2 have advertised that the T.V. can withstand any voltage fluctuations and no extra stabilizer is necessary, and as the opposite parties failed to rectify the defects, the complainant approached the District Forum. The opposite parties filed written version stating that the T.V. contained an inbuilt stabilizer which could withstand the fluctuations in electricity between 130 to 280 volts, and that if the fluctuations are higher, the T.V. would burn and the damage being due to a third party''s negligence, and it having occurred after the lapse of warranty period of one year, no liability can be fastened to it for free repairs and replacement or refund of the price of the T.V. muchless the compensation of Rs. 20,000/- and payment of Rs. 20,000/- to enable the complainant to purchase an alternate T.V. in the present day market.

Basing on these pleadings and the evidence adduced, the District Forum held that though the warranty period has expired, as the opposite parties have resorted to unfair trade practice the complainant is entitled for replacement of the T.V. or for refund of the cost of the T.V. and also compensation of Rs. 15,000/-.

AGGRIEVED by the said finding and order, the opposite parties 1 and 2 preferred this appeal. The point for consideration is, whether there is any deficiency in service on the part of the opposite parties ? The facts which are not in dispute are that the complainant has purchased Optonica Colour T.V. manufactured by opposite parties 1 and 2 for Rs. 14,800/- from the third opposite party on 15.11.1990, but due to voltage fluctuations it was burnt on 8.11.1992. When the complainant approached the Servicing Centre of opposite parties 1 and 2, an estimate for Rs. 16,850/- towards repairs and replacement of colour tube, was given to him. The complainant alleges that as the manufacturers 1 and 2 have widely advertised that the T.V. can withstand any voltage fluctuations as it has an inbuilt stabilizer, he has not used any external stabilizer to avoid fluctuations in voltage. The opposite parties admit that such an advertisement was given in the newspapers, but the inbuilt stabilizer can withstand fluctuations between 130 to 280 volts only, and if the fluctuations are higher the T.V. would be damaged. It is not advertised so in the advertisement given by them in the Deccan Chonicle, Hyderabad Edition on 19.5.1990. The advertisement was with bold white letters on a black background as follows : "Poor reception ! Voltage Fluctuation ! No Problem Optonica Performs"

It is also mentioned in the advertise-ment : "Manufactured under strict quality control Optonica B/W TVs given the best performance" Seeing this advertisement, he approached the third opposite party and the third opposite party also informed him that the T.V. is equipped with an inbuilt stabilizer and it does not require any external stabilizer. Believing the representation of the third opposite party, the complainant has purchased the T.V. which was burnt due to voltage fluctuations after one year. The contention of the opposite party is that the period of warranty has expired, and after the warranty the complainant cannot demand for the replacement or rectification of the defects. Section 2(1)(f) of the C.P. Act defines the "defect" as under :

"any fault, imperfection or shortcoming in the quality...or standard...as is claimed by the trader in any manner whatsoever in relation to any goods."

Section 2(1)(r) defines "unfair trade practice" as under : "a trade practice which, for the purpose of promoting the sale, use or supply of any goods or for the provision of any service, adopts any unfair method or unfair or deceptive practice including any of the following practices, namely : (1) The practice of making any statement, whether orally or in writing or by visible representation which,- (i) Falsely represents that the goods are of a particular standard, quality, quantity, grade composition, style or model: "

"As per Section 2(1)(c) a ''complaint'' can be made when an unfair trade practice has been adopted by any trader or that the goods bought by him or agreed to be bought by him suffer from one or more defects." "Under Section 14(1) of C.P. Act when the District Forum is satisfied that the goods complained against suffer from any of the defects specified in the complaint it shall issue an order to the opposite party directing him to do one or more of the following things, namely : (a) ................. (b) to replace the goods with new goods of similar description, which shall be free from any defect. (c) to return to the complainant, the price. (d) to remove the defects or deficiencies in the services in question. (e) to discontinue the unfair trade practice or the restrictive trade practice or not to repeat it." "Under Sub-clause (d) it can also direct payment of compensation to the consumer for any loss or injury suffered by the consumer due to the negligence of the opposite party." It is also a settled proposition that the meaning of advertisements or other representations to the public and their tendency to mislead or deceive are questions of fact to be determined by the Consumer Redressal Forums or the MRTP Commission. The truth of advertisements or representations must be proved by the advertiser. It is also not material whether the facts have been falsely represented by the advertiser in good faith or bad faith. Thus it is no defence for the opposite party to say that when they issued the advertisement they meant only to convey that it had a limited performance of stabilising only fluctuations of limited range and that it was not problem within certain limits only. The argument cannot be accepted. The Supreme Court in Central Inland Water Transport Corpn. Ltd. v. Brojo Nath Ganguly, AIR 1986 SC 1571, Observed : "The principle is that the Courts will not enforce and will, if called upon to do so, strike down unfair and unreasonable contracts, or an unfair and unreasonable clause in contract entered into between the parties who are not equal in bargaining power."

THIS principle will apply where inequality of bargaining power is the result of disparity in the economic strength of the contracting parties. It applies to situations in which the party has to purchase the goods under the terms stipulated by the seller or go without them. The principle may not apply when the bargaining power of the contracting parties is equal or almost equal, e.g., when both parties are businessmen and when the transaction is a commercial transaction. The Courts cannot be blind to the circumstances prevailing in the market. It is not that the party had a choice to leave Optonica and go for another brand. Everybody gives warranty only for one year. The trading community is definitely stronger and the consumer is in a weaker position. Thus, we are of the view that the warranty, mentioned in Ex. A10 does not effect the statutory right of seeking the relief against the defective goods, even after one year, and if the warranty has such import, it has to be declared as otherwise it is unfair and unreasonable and hence not binding on the consumer. In view of the above, the District Forum has rightly held that there was defect in the goods sold by the opposite party (Optonica Kalyani Sharp India Ltd.) attracting the provisions of the Consumer Protection Act and the opposite party has adopted an unfair trade practice within the meaning and expression used in the Consumer Protection Act and the complainant is entitled for relief under Section 14(1) of the Consumer Protection Act. It directed the opposite party to refund the cost of T.V., Rs. 14,800/- with interest at 18 per cent per annum from 8.11.1992 till the date of payment. It also directed the opposite party to pay Rs. 15,000/- as compensation, which we feel is on the higher side and, therefore, we reduce it to Rs. 2,000/-. We also further direct that the unfair trade practice of advertising as "Voltage fluctuations no problem" shall be discontinued forthwith and shall not be repeated and they shall publish a clarificatory statement in future to the effect that the inbuilt stabilizer safeguards against specified voltage fluctuations only within one month. With this modification, this appeal is dismissed with costs of Rs. 1,000/-. Time for compliance two months. Appeal dismissed.