SOLIDAIRE INDIA LTD vs D.A.MOHAN KUMAR

THIS is an appeal filed by M/s Solidaire India Ltd., against the order dated 29-10-90 of the Consumer Disputes Redressal District Forum, Ernakulam in O.P. No. EKM/184/90 allowing the Complainant Respondent to get the replacement of his picture tube for his television set free of cost from the Appellant

THE facts of the case, in so far as they are necessary for understanding the contentions raised in the appeal may be shortly stated. On 10-4-87, the Respondent in this appeal purchased a Solidaire Colour Television Set (CTS 605) from Hi-Beam Electronics Private Ltd., (Now Solidaire India Ltd.) the appellants. Since the last week of June, 1990, the performance of the television set deteriorated and the picture tube was not working properly. On 12-7-1990 the Respondent complained about the matter to the Appellant. On 17-7-1990 the T.V. Set was checked by a technician sent by the Appellant and the Respondent was informed that one of the filements of the picture tube was not working and the picture tube should be replaced with a new one to get clear colour combination. According to the Complainant (respondent), normally the picture tube in a television set has got a life span of 10 to 15 years and some companies like Binatone offers 3 years guarantee to the picture tube whereas the complainant was not able to use it at least for a period of 3 years and that was due to its poor quality and manufacturing defect. A complaint was filed before the District Forum, Ernakulam, praying that the opposite party (Appellant) may be directed to replace the defective picture tube free of cost because it had become defective within such a short period owing to manufacturing defects. This prayer was allowed by the District Forum. Against the order of the District Forum allowing the complainant (respondent) to get the replacement of the defective picture tube with a new one free of cost, this appeal has been filed.

One of the contentions in the appeal is this, "The Forum ought to have seen that Sec. 2(1)(f) defines "defect" and if quality of anything mentioned therein is not according to the claim made by the manufacturers in regard to products then, and only then could it be said that there is a defect. In the instant case, the admitted case of the Respondent is that the manufacturer has given the warranty of one year and the allegations in the petition even if true cannot be said that there is a defect as admittedly the defect was there only after the expiry of 3 years."

ANOTHER contention of the Appellant is that when the respondent purchased the television set, he knew that the warranty period was only for one year and so, the respondent had no right to claim the replacement of the picture tube which had become defective, two years after the expiry of warranty period. It was also contended in the appeal that even though the respondent was aware of the fact that other companies were giving a warranty for 3 years for picture tube, he purchased the television set from the appellant, knowing fully well that it was given only one year'' s guarantee and therefore the respondent is stopped from questioning the period at a later stage on the ground of comparison. The finding of the District Forum is that under Sec. 2(1)(f) of the Consumer Protection Act, ''Defect'' is defined and it could be seen that the quality or standard of goods, "as is claimed by the trader in any manner what so ever in relation to any goods" should be maintained if not, it has to be deemed as a defect under the Act. It again finds that simply because a period of one year is given as warranty, that does not mean that the claim of the opposite party regarding the quality of picture tube should be only for one year, but what is meant by giving a period of warranty is only an undertaking issued by the party that he will rectify the defect if any free of cost during the said period.

WE agree with the portion of the finding of the District Forum. It is an admitted fact that during the period of warranty there were no complaints regarding the functioning of the Television set. Only after the expiry of three full years, i.e. since the last week of June, 1990, the functioning of the set became defective. So, for complete three years the picture tube of the television set worked properly and satisfactorily. Accordingly to the respondent normally a picture tube in a television set has got a life span of 10 to 15 years and there are companies offering three years guarantee in the picture tube and it was due to some manufacturing defect that the picture tube in the television set is not working properly and therefore he is entitled to get it replaced at the cost of the Appellants. At the same time the appellant argued that the life span of a picture tube depends upon the manner and usage of a television set, and that the failure of the picture tube was due to the negligent use of the television set by the respondent. According to the appellant, if a television set is put to work continuously for several hours daily, automatically the life span of the picture tube will became shorter. A picture tube may become defective due to voltage fluctuation also. It was also argued by the appellant that the District Forum had gone wrong to come to the conclusion that the life span of the picture tube had become short due to the manufacturing defect of the picture tube, because there was no authentic evidence to that effect before the District Forum to make such a finding as the television set was not examined by an experts.

AFTER considering the contentions raised before us by both sides we come to the following conclusion.

THE respondent had purchased the television set knowing fully well that the set was offered only a warranty of one year. He had entered into that contract of sale knowing very well that the warranty period of the television set is one year only and that after the expiry of the said one year the appellant was in no way bound to rectify the defects and complaints caused to the television set free of costs. By purchasing the television set and receiving the guarantee card, the respondent had impliedly agreed to the terms of warranty. THErefore we find that the respondent had not right to claim replace of the picture tube free of cost, two years after the expiry of the period of warranty. In our view, the claim of the respondent that the normal life span of a picture tube of a television set is ten to fifteen years is not supported by any authentic evidence. In exhibit A2 it is stated that the normal life span of a picture tube in a colour television is much more than three years. The relevant portion of exhibit A2 reads thus, "We are extremely sorry to know that the set purchased by you in 1987 requires replacement of picture tube. Though the normal life span of picture tube is much more than this, there are time while electronic gadget fails for reasons not known."

Even if the life span of a picture tube is very long, there is no doubt that it may become defective due to various reasons. If the picture tube has any inherent manufacturing defect; it may fail to function properly within a short period. Similarly the untimely failure of a picture tube may occure because of the negligent use of the television set or due to the voltage fluctuation as argued by the appellants. In order to attract Sec. 2(1)(f) of the Consumer Protection Act, it has to prove that the failure of the picture tube was due manufacturing defect. There is no doubt that a defect in a television set cannot be determined without a proper test by an expert. So in this case the complainant (respondent) should have adduced expert evidence or should have prayed the District Forum to get the television set tested by an expert and to obtain his report in order to find out whether the life span of the picture tube is ten to fifteen years and whether the picture tube as become defective due to any inherent manufacturing defect.

FOR the reasons aforesaid, the order of the District FORum cannot be sustained. The result is that the appeal succeeds. The appeal is allowed and the order of the District Forum dated 29-10-90 is set aside.

BEFORE parting with the case, we think it proper to state that we have considered the complaint and all documents accompanying it. It is a fact that a television set is a good investment so far as an ordinary man is concerned and it is very costly part of T. V. It might be considering these facts that the opposite party offered a discount of 30% on the cost of a new picture tube in Exhibit A2 letter. The relevant portion of Exhibit A2 reads, "After discussions with our Vice Chairman we are pleased to offer you a 30% discount on the cost of the picture tube."

We direct the Appellant to consider the matter sympathetically and allow the Respondent a 30% discount on the cost of the picture tube as agreed by the Appellant in Exhibit A2. Both parties shall bear their own cost of the appeal. Appeal partly allowed.