O R D E R
(By Hon'ble Mrs. B. Uma Venkata Subba Lakshmi, President on Behalf of the Bench)
1. The present complaint is filed under Section 35 of the Consumer Protection Act, 2019 alleging deficiency of service and unfair trade practice on the part of the Opposite Parties No. 1 and 2 with a prayer to
i) Direct the Opposite Parties 1 and 2 to refund the sale consideration of Rs. 2,50,000/- (Rupees Two Lakhs Fifty
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Thousand Only) with interest @ 24% p.a. from the date of purchase till the date of realisation
ii) Grant an amount of Rs. 2,50,000/- (Rupees Two Lakhs Fifty Thousand Only) towards compensation
iii) Award costs of Rs. 20,000/- (Rupees Twenty Thousand Only)
The Complainant also prayed this Commission to pass such other relief or reliefs as this Commission may deem fit and proper in the circumstances of the case.
2. Brief facts as averred in the complaint are that the Complainant purchased "Sony OLED KD 65A Del 1040 Television" from the Opposite Party No. 1 on 08.01.2021 vide invoice No. 1212/20/B- 27309 dated 08.01.2021 for Rs. 2,50,000/- (Rupees Two Lakhs Fifty Thousand Only) with one year warranty. At the time of purchase, the Opposite Party No. 1 promised to provide complete end to end repair / service to the product. From the date of purchase, there was problem of picture without voice and high flickering in the function of TV and after that it completely stopped functioning. When the Opposite Parties did not resolve the issue, the Complainant contacted the customer support staff. Though the Complainant followed up regularly with the customer support staff, the problem persisted and no solution was provided. It is submitted that the Complainant purchased the TV for her family members but the product, due to defect, became useless. It is further submitted that because of the acts and deeds of the Opposite Parties, the Complainant was subjected to mental agony and harassment for no fault of hers. Hence, the Complainant filed the present complaint alleging deficiency of service and unfair trade practice on the part of the Opposite Parties and prayed the Commission to grant the reliefs as stated supra.
3. Written Version of the Opposite Parties:
On receipt of notice, the Opposite Party No. 1 and Opposite Party No. 2 appeared through their counsels and filed separate written versions.
The Opposite Party No. 1, while denying the allegations unless expressly admitted therein, contended that the complaint is
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neither maintainable in law nor on the facts of the case and liable to be dismissed in limini. It is further contended that the answering Opposite Party is neither a necessary nor a proper party to the present proceedings. The purchase of the TV vide invoice No. 1212/20/B-27309 dated 08.01.2021 for Rs. 2,50,000/- (Rupees Two Lakhs Fifty Thousand Only) by the Complainant from the Opposite Party No. 1 was not denied. It is averred that the transaction between the Complainant and the Opposite Party No. 1 was concerned, it was limited only towards the purchase of the product as the Opposite Party No. 1 was only a dealer / retailer of Sony products. It is further averred that the non-functioning of the TV cannot be attributed to the answering Opposite Party. It is stated that for the non-functioning of the TV, the Complainant had to approach the authorized servicing centre of the Opposite Party No. 2 as the warranty or guarantee was provided by the manufacturer and not the dealer / retailer. It is further stated that the Complainant filed the present complaint for refund of the sale consideration of the TV after using the product for almost 12 months. It is submitted that the answering Opposite Party cannot be held liable for the omission or commission on the part of the Opposite Party No. 2 and / or its authorized service centre and in the present case, the Complainant has not impleaded authorized service centre as a party. It is further submitted that it is clearly mentioned in the invoice copy that goods one sold will not be taken back or exchanged under any circumstances and articles sold is / are guaranteed by manufacturers only. Hence, denying allegations of deficiency of service and unfair trade practice on their part, the Opposite Party No. 1 prayed the Commission to dismiss the complaint with exemplary costs in so far as the Opposite Party No. 1 is concerned.
The Opposite Party No. 2, while denying the allegations unless expressly admitted in the written version, contended that it is a Company incorporated under the Companies Act, 1956 and has registered office at A-18, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi. It is further contended that except the purchase of the TV product from the Opposite Party No. 1, the Complainant has not furnished any details like serial number etc. in the complaint. It is averred that the complaint is
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not maintainable as there is no single proof against the Opposite Party No. 2 or that the product has ever been brought to any of the authorized service centres of the Opposite Party No. 2 to show that the product has inherent defect. It is further averred that the complaint is liable to be dismissed in the absence of any service history or any kind of details available with the Opposite Party No.
2. It is stated that no cause of action whatsoever has arisen to file the present complaint against the Opposite Party No. 2. It is further stated that had there been any inherent defect in the product, the Complainant would have surely contacted the Opposite Party No. 2 or any of the authorized service centres right in the beginning. It is submitted that the in-warranty services are only applicable in the cases where the product was purchased from the authorized dealer and in the present case, the TV was purchased from the unauthorized dealer. The Opposite Party No. 2 relied upon citations of Sabeena Cycle Emporium Chennakhaada Vs Thajes Ravi M.R. Pancha Villa Vedar Ezkhone P.O. (1992) I CPJ 97 and Keshab Ram Mahto Vs Hero Honda Motors Ltd and Another I i> <i>(2003) CPJ 244 stating that the Forum is bound to determine the allegations of defects in goods on the basis of clear evidence by way of expert opinion. The burden of proof lies on the Complainant to prove and establish any inherent defect in the TV set. The Opposite Party No. 2 could have resolved the issue had there been any idea regarding the status of the TV. It is further submitted that no service details were mentioned in the complaint which clearly establish the fact that the Complainant never approached any of the authorized service centres of the Opposite Party No. 2 raising any issue with respect to the said TV. Therefore, denying the allegations of unfair trade practice and deficiency of service on the part of the Opposite Party No. 2, they prayed the Commission to dismiss the complaint.
4. In the enquiry, the Complainant did not lead evidence despite giving the Complainant adequate opportunities. The Complainant, after filing the complaint, remained absent in the remaining proceedings. A notice was issued to the Complainant intimating the next date of hearing for leading evidence (the notice was dispatched on 01.08.2022). Despite receipt of notice, the Complainant did not appear to lead evidence. Hence, the right of
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the Complainant to file evidence affidavit was forfeited vide docket order dated 08.08.2022. Thereafter, Mr. Karan Bajaj, the authorized signatory of the Opposite Party No. 1 filed evidence affidavit and reported no documents by way of memo whereas Ms. Meena Bose, the authorised authority of Opposite Party No. 2 filed evidence affidavit and marked their documents at Ex B1 and Ex B2. Thereafter, the Opposite Party No. 1 filed written arguments and filed memo dated 19.10.2022 to treat their written arguments as oral submissions. Finally, the matter was reserved for orders on
14.11.2022.
5. Based on the facts and material brought on record, the following points have emerged for consideration:
a) Whether the Complainant could make out the case of deficiency of service and unfair trade practice on the part of the Opposite Parties?
b) Whether the Complainant is entitled for the claim / compensation made in the complaint?
c) If so, to what relief?
6. Point No. a:
It is settled law that the initial onus (burden of proof) is on the Complainant to prove his / her case. The parties are required to give evidence in support of their respective claims. It is a settled principle that pleadings are not evidence and that a party who wants to prove anything as made out in his / her pleadings has to give evidence to prove his / her assertions. In the present case, the Complainant after filing the complaint, did not appear to prove her case. Also, the Complainant has not taken any steps to prove her case as averred in the complaint. Mere pleadings are not evidence. The Complainant ought to have led evidence to prove her case. In the instant case, the Opposite Parties No. 1 and 2 filed evidence affidavit reiterating the averments made in the written version and the Opposite Party No. 1 filed written arguments. It is the case of the Complainant that the TV purchased from the Opposite Party No. 1 had inherent defect from the beginning
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and the Opposite Parties did not resolve the issue despite the product being under warranty period.
It is the version of the Opposite Party No. 1 that it is the dealer / retailer of Sony products and the transaction between the Complainant and the Opposite Party No. 1 was limited to the purchase of the product and it was clearly mentioned in the invoice that the goods once sold will not be taken back or exchanged under any circumstances and articles sold is / are guaranteed by manufacturers only whereas it is the version of the Opposite Party No. 2 that the Complainant did not submit any documentary evidence to establish that the TV was taken to any of their authorized service centres for the alleged inherent defect. Moreover, it is the version of the Opposite Party No. 2 that the in- warranty services are only applicable in the cases where the product was purchased from the authorized dealer and in the present case, the TV set was purchased from the unauthorized dealer. The Opposite Party No. 2 filed document 'India Domestic Service Warranty' (Ex B2) to substantiate its statement that the warranty is only for the first end user on purchase from Sony Authorized Dealer and Sony Service Centres / Authorized Service Centres will repair the product on the terms and conditions mentioned in the said document.
Reiterating that the onus of proof of deficiency in service is on the Complainant in the complaints under the Consumer Protection Act, it was held by the Hon'ble Supreme Court in SGS India Ltd. Vs Dolphin International Ltd. (judgement dated 06.10.2021) "it was the Complainant who had approached the Commission, therefore, without any proof of deficiency, the Opposite Party cannot be held responsible for deficiency in service. Except bald averments with regard to deficiency of service by the Opposite Party, the Complainant did not adduce any cogent evidence establishing the same. If the Complainant is able to discharge the initial onus of proof that there was deficiency in service, the burden would then shift to the Opposite Party in the complaint. Having failed to prove his pleadings / averments with any evidence by the Complainant, the burden of proof would not shift on the Opposite Party." In the present case, the Complainant did no discharge the initial of proof to establish the deficiency of
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service on the part of the Opposite Parties. Hence, this point is answered against the Complainant.
7. Point No. b:
In the present case, the TV was purchased on 08.01.2021 and as per the version of the Opposite Party No. 1, the product was used for more than 12 months and as per the version of the Opposite Party No. 2, the Complainant had failed to furnish any documents to show that the TV set was ever brought to any of the service centres of Opposite Party No. 2 to establish that the product had inherent defect from the beginning. In the present case, except bald averments of the Complainant that the TV was suffering from inherent defect, there is no cogent evidence on the record to substantiate / establish the same. Mere bald assertions that the TV was suffering from inherent defect was not suffice to prove such allegations. In view of the above findings, the Complainant is not entitled for any of the reliefs as prayed in the complaint.
8. Point No.c:
In the result, the complaint is dismissed with no order as to costs.
Dictated to steno, transcribed and typed by him, pronounced by us on this the 07thday of December, 2022.
MEMBER MEMBER PRESIDENT
APPENDIX OF EVIDENCE
WITNESS EXAMINED FOR THE COMPLAINANT:
R.Venkata Lakshmi W/o.A.Narayana Complainant (PW1) WITNESS EXAMINED FOR THE OPPOSITE PARTY No.1 & 2:
Karan Bajaj S/o.Sri Pavan Bajaj Rep. by the Authorized Signatory of the Opposite Party No. 1 M/s.Bajaj Electronics (DW1). Meena Bose D/o.Late Sh.Vinod Rai Jasapara Rep. by the Authorized Signatory of the Opposite Party No.2 Sony India Private Limited (DW2)
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EXHIBITS FILED ON BEHALF OF THE COMPLAINANT:
Right for filing Evidence Affidavit was forfeited. Hence no documents marked.
EXHIBITS FILED ON BEHALF OF THE OPPOSITE PARTY NO.1:
Opposite Party No.1 reported no documents for marking. EXHIBITS FILED ON BEHALF OF THE OPPOSITE PARTY No.2:
Ex.B1 Certified true copy of Resolution dated: 04.07.2011 filed by the Sony India Private Limited Opposite Party No.2. Ex.B2 Copy of Standard Warranty dated: 14.03.2016.
MEMBER MEMBER PRESIDENT
Read by:-
Compared by:-
DSK
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