ORDER (Arun Kumar Goel, J. (Retd.) President) (Oral) - We have heard learned Counsel for the parties and have also examined the record of this case. 2.Admittedly, facts giving rise to this appeal are that the respondent sold a New National Panasonic Colour TV to the appellant for Rs. 12,400 vide bill dated 9.11.2002. As per the appellant it was found to be defective and had to be taken to the respondent. His mechanic informed the appellant that set was defective and old one and it was due to this reason that it was not functioning properly. 3.This resulted in causing great loss and mental tension to the appellant. A request was made to the respondent to replace the defective set, but the latter declined to entertain the request. To the contrary, he is alleged to have threatened the appellant with dire consequences in case he approached the respondent again. This resulted in filing of complaint, praying for directions to the respondent to either replace the set in question or else pay him Rs. 12,400/- together with compensation for mental gony to the tune of Rs. 10,000/-. 4.As already observed so far sale is concerned, it is not in dispute. The case of the respondent is that the complaint is bad for non-joinder of necessary parties i.e. the manufacturer of the Television in question, and the respondent was estopped from filing the complaint by his act and conduct because he has concealed the material facts. Regarding guarantee, it is admitted that one year’s guarantee is given by the manufacturer and not by the respondent. Further case of the respondent is that the set in question was brought to his shop in the month of October, 2003. It was non-functional and Mechanic after examination found that it was due to fuse which was on account of fluctuation of electricity supply. As such, there was no manufacturing defect. According to the respondent, he was ready and willing to provide the service in case the appellant so desired. After having used the television, complaint has been filed. As such, there is no deficiency of service on his part. To the contrary, it is the respondent who was being harassed. Respondent has filed his own affidavit in support of his defence. After having used the television, complaint has been filed. As such, there is no deficiency of service on his part. To the contrary, it is the respondent who was being harassed. Respondent has filed his own affidavit in support of his defence. 5.District Forum below vide impugned order dismissed the complaint by holding that the manufacturer was not made a party nor has the appellant filed his own affidavit in support of his claim or any expert opinion in that behalf. Repair having been undertaken by the respondent to the television Set in question, has been accepted by the District Forum below but for the said reasons, the complaint was dismissed. Hence this appeal. 6.During the pendency of the appeal, M.A. No. 1218/2006 was filed for additional evidence. It was allowed on 8.3.2007 and the affidavit of the appellant was ordered to be taken on record for being read in evidence. With a view to controvert the same, respondent has also filed his affidavit to controvert what is set out in the additional evidence. 7.After hearing the learned Counsel for the parties, what emerges from the record is that sale of the Television Set in question is admitted. Its having developed defects within guarantee period time and again which according to the respondent were carried out whenever the Set was brought for the removal of defects. In these circumstances, the primary question would be whether the appellant had purchased a brand new Set in question with defects with a view to taken it every now and then for removal of the defects to the respondent. This in our opinion is in fact a grave hardship and harassment to the appellant. Unless there was inherent manufacturing defect in the Television Set in question, ordinarily there was no occasion for the appellant to have approached the respondent for removal of the defects. In this behalf, it may be observed that it is admitted case of the respondent that whenever the Set in question was brought for removal of defects to his shop, needful was done and he was even now ready and willing to remove any defect in case the Set is brought to his shop. In this behalf, it may be observed that it is admitted case of the respondent that whenever the Set in question was brought for removal of defects to his shop, needful was done and he was even now ready and willing to remove any defect in case the Set is brought to his shop. 8.A customer having purchased a new Set after paying full cost with a view to utilize the same and not to cause problem for himself by taking it every now and then for removal of defects in it. Unless the defect was inherent in the manufacture of the Television Set in question, there was no reason why the defects would crop up which may force the customer like appellant to approach the dealer like respondent in the present case every now and then. As such, on admitted facts, mere non-filing of the expert opinion does not wipe out the fact that the Television Set in question was defective inherently, which is a clear-cut case of not only deficiency in service but also of unfair trade practice adopted by the respondent. Here, we have no reason to disbelieve the appellant that when the defects were persisting he was informed by the Mechanic of the respondent that the Set was old one, whereas he has paid the price of a new Television Set to the respondent. 9.For taking this view, reliance is being placed on the decisions of the National Commission in First Appeal No. 455/1997 decided on 27.2.2006 in the case of R. Raja Rao v. M/s. Mysore Auto Agencies and another, 2006(II) CPJ 64 (NC), as well as in Revision Petition No. 958/2007, M/s. Hyundai Motor India Ltd. v. M/s. Affiliated East West Press (P) Ltd. and another, 2008(1) CPJ 19 (NC), decided on 29.11.2007. Both these decisions negative the stand of the respondent-dealer raised by Mr. J.L. Sharma on his behalf. 10.Faced with this situation, Mr. Sharma raised another plea that the impugned order deserves to be upheld as the complaint was bad for non-joinder of manufacturer of the TV set in question and according to him on this ground the appeal deserves to be dismissed. We find no substance in this submission. Manufacturer does not deal with the customer directly. 10.Faced with this situation, Mr. Sharma raised another plea that the impugned order deserves to be upheld as the complaint was bad for non-joinder of manufacturer of the TV set in question and according to him on this ground the appeal deserves to be dismissed. We find no substance in this submission. Manufacturer does not deal with the customer directly. Rather it appoints its authorized agents, whole salers, stockist and dealers, through whom it is in contact with the customers like appellant in the present case. Moreover, this controversy has been set at rest by the National Commission vide it is various decisions. Between the customer and dealer, manufacturer nowhere figures. Whatever manufacturer has to do it is with his dealer/agent/distributor/wholesalers etc. As such, submission of Mr. Sharma is liable to be rejected. Ordered accordingly. 11.No other point was urged. In view of the aforesaid discussion, while allowing this appeal, it is ordered that the respondent shall replace the Television Set in question with a new one of the same Model and Make by or before 29.2.2008, failing which, it shall pay Rs. 12,400 to the appellant alongwith 9% interest on its from the date of filing of the complaint i.e. 4.11.2003 plus Rs. 5,000 towards harassment and another Rs. 5,000 towards cost of litigation of this appeal as well as the complaint inclusive of punitive costs. Appellant shall hand over the Television Set to the respondent, if it is not already with the respondent, forthwith. Office is directed to make copy of this order available to the parties free of cost as per Rules. M.R.B. ———————