State Consumer Disputes Redressal Commission
Dr. Lalit Agarwal vs M/S. Sony India Pvt. Ltd. on 2 February, 2009
IN THE STATE COMMISSION: DELHI IN THE STATE COMMISSION: DELHI (Constituted under section 9 clause (b) of the Consumer Protection Act, 1986) Date of decision: 02.02.2009 First Appeal No.2008/1014 (Arising from the order dated 08.09.2008 passed by District Forum(South-X) Udyog Sadan, Qutub Institutional Area, New Delhi in Complaint Case No.1102/2005( 594/2004) Dr. Lalit Agarwal Appellant Dy. General Manager, through Mr. Praveet Khattar, Tokyo Engineering Consultants advocate. Company Limited, 149, Sukhdev Vihar, New Delhi. Versus 1. M/s. Sony India Pvt. Ltd. Respondents A-31, Mohan Cooperative through Mr. S. Hari Haran, Industrial Estate, advocate. Mathura Road, New Delhi. 2. M/s. Synapase, 6, Vinobapuri, Lajpat Nagar II, New Delhi. CORAM: Justice J.D. Kapoor, ... President Ms. Rumnita Mittal Member
1. Whether reporters of local newspapers be allowed to see the judgment?
2. To be referred to the Reporter or not?
Justice J.D. Kapoor, President(ORAL)
1. On account of having sold a Notebook with manufacturing defect, which the respondent No1., disputed, the District Forum has vide impugned order dated 08.09.2008, directed the respondent No1. to repair the Notebook within one month from the date of receipt of order without any charges, failing which it shall pay a sum of Rs.40,378/- to the appellant and in addition thereto, the respondent No.1, shall pay a sum of Rs.20,000/- as compensation for mental agony, harassment as well as cost of litigation.
2. Feeling aggrieved the appellant has preferred this appeal.
3. Allegations of the appellant leading to the impugned order in brief were that on 01.04.2005, he purchased Sony Notebook with Model No.VGH-S36 GP/S E-1 (NOTEBOOK PC) and Serial No. 7100513 for Rs.98,000/- from respondent No.2, dealer of respondent No.1. As after two three weeks, the appellant observed abnormal display on the right upper side of the LCD of the above Notebook (i.e. First coloured in a patch and later a hairline), therefore, it immediately informed respondent No.2 to rectify the above problem. On this, on 20.05.2005, their engineer came and took the Notebook for further examination by the Engineer of Respondent No.1. On 23.05.2005, respondent No.1 returned the Notebook alongwith the job card by stating although the Notebook was under warranty period, yet the same cannot be repaired without payment as it was physically damaged set. It further stated that the Notebook could be repaired on payment of Rs.40,378/-. Appellant submitted that as it was not at fault, that as on the other hand, it appeared to be a case of negligence of the respondents hence, prayed that respondents be directed to replace the notebook.
4. In reply the respondent No.1 admitted about the sale of the Notebook to the appellant by respondent No.2. It also admitted the receipt of the Notebook for repair. However, it submitted that on examination, as the Notebook was found to be damaged due to dropping of the same by the appellants officials, therefore, as physically damaged notebook is not covered under warranty clause, the same cannot be repaired without charges. So far as respondent No.2 was concerned it admitted the supply of the Notebook to the appellant. However, it submitted that the Notebook in question was supplied in sealed and original packing in good condition. It also submitted about the receipt of the Notebook for taking it to the service centre of the respondent No.1. It also submitted that as on examination, respondent No.1 found that the Notebook was physically damaged and accordingly was not covered under the warranty, therefore it was not guilty of any deficiency in service.
5. We have perused the impugned order closely; there is no dispute as to the purchase of Notebook by the appellant from respondent No.2. There is also no dispute that the Notebook was supplied in sealed and original packing. The appellant in support of its case examined himself and Mr. Santosh Tantia, one of the Directors of Tantia Infocom Pvt. Ltd., a company dealing with the computers and claims to have great technical knowledge in the field of computers.
6. The plea of the respondent No.1, that there was physical damage and not manufacturing defect or inbuilt defect, did not find favour with the District Forum as the witness deposed that there was no sign of physical damage or breakage to the Notebook. He also deposed that had there been physical damage then there would have been some scratch, mark or any other sign on the surface of the LCD or anywhere else on the screen showing that there was some physical damage and that in fact, defect in the Notebook was inbuilt and the Notebook being under warranty period, should have been repaired by the respondent without any charges. Similarly another witness Mr. Santosh Tantia, deposed that they had checked the Notebook on 13.03.2006 and on checking it was found that the problem with display was occurring on the screen (i.e. line appearing on the screen) because of other technical problem in the Notebook and not due to any physical damage.
7. However, the respondent No.1 could not produce any evidence to controvert, the aforesaid evidence produced by the appellant and therefore, District Forum, rightly returned the finding of fact that it was a case where defect in Notebook had occurred not because of physical damage but because of other inbuilt and technical problem.
8. We have taken consistent view in case after case that it is misconceived notion that the goods cannot be declared as defective goods unless it suffers from manufacturing defect. If a goods is found to be suffering from manufacturing defect the replacement may be ordered but if the goods suffers from some or the other defects and has to be taken time and again for repair to the garage it reflects either the poor quality of the goods or that it is a defective goods. Quality of any goods has to be tested on the anvil of definition of word defect as defined by Section 2(1)(f) of Consumer Protection Act 1986, which means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or (under any contract, express or implied or} as is claimed by the trader in any manner whatsoever in relation to any good.
9. Whenever a person purchases a brand new goods his minimum expectation is that for few months or year he will have no problem much less the major problem. If he starts taking the new goods every second or third day for removing some or the other defect, he does so at the cost of his time, money, patience, mental agony and harassment and also emotional suffering.
10. A person goes for a brand new goods by paying heavy amount in order to avoid any inconvenience or hardship a second or third hand goods presents, and if a brand new goods or goods also starts giving trouble time and again person is forced to take it to the manufacturer or dealer for removal of the defect, after every fortnight or month and still the defect continues, the goods have to be declared as defective goods.
11. We have also taken a view that the dispute between the consumer and the service provider or the trader should be settled once for all and not relegate the parties to square one and enter into second bout of litigation. Therefore the permanent solution is to ask for refund of the cost of the goods and not to replace the goods free from any defect as the possibility of new goods being also defective or not upto the satisfaction of the consumer cannot be ruled out. Though there is discretion provided by Section 14(1) of Consumer Protection Act 1986, vested in the District Forum to order the OP to remove the defects or replace the goods with new goods of similar description which shall be free from any defect but the discretion should be exercised in a manner so as to put an end to the dispute once for all by exercising the discretion provided in clause
(c) of sub section (1) of Section 14 of Consumer Protection Act, for returning the price of the goods as the case may be, the charges paid by the complainant and also to pay such amount as may be awarded by it as compensation to the consumer for any loss or injury suffered by the consumer, due to the negligence of the opposite party.
12. Honble Supreme Court in case after case has widened the concept of compensation to a consumer for the harassment, mental agony suffered by him at the hands of service provider, compensation encompasses in its fold each and every element of suffering including mental agony, harassment, physical discomfort, emotional sufferings or any other injury suffered by the consumer. In this regard the observations of the Honble Supreme Court made in Ghaziabad Development Authority Vs. Balbir Singh (2004) 5 SCC 65 are quote worthy and are as under:
The word compensation is of a very wide connotation. It may constitute actual loss or expected loss and may extend to compensation for physical, mental or even emotional suffering, insult or injury or loss. The provisions of the Consumer Protection Act enable a consumer to claim and empower the Commission to redress any injustice done. The Commission or the Forum is entitled to award not only value of goods or services but also to compensate a consumer for injustice suffered by him. The Commission/ Forum must determine that such sufferance is due to malafide or capricious or oppressive act. It can then determine amount for which the authority is liable to compensate the consumer for his sufferance due to misfeasance in public office by the officers. Such compensation is for vindicating the strength of law.
13. We have further extended the concept of compensation to the extent that those service providers who force a consumer to seek remedy before Consumer Forum or before any other legal forum to have their rightful claim are liable to pay in addition to what a consumer is otherwise entitled to as nowadays the legal remedy is becoming costlier and it is not only time consuming but at times tortuous also.
14. In the given facts and circumstances, as well as, finding of fact returned by the District Forum, which does not suffer from any infirmity, we allow the appeal, by modifying the impugned order by directing the respondent No.1 to refund the cost of Notebook on return of the same by the appellant and maintain the amount of compensation as awarded by the District Forum. The order shall be complied with within one month from the date of receipt of this order.
15. A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room.
Announced today on 02nd day of February 2009.
(Justice J.D. Kapoor) President (Rumnita Mittal) Member Tri