Orissa

Debagarh

CC/17/2015

Pravat Kumsr Pradhan, aged about 54 yrs. S/o-Arjun Mohan Pradhan - Complainant(s)

Versus

1- Sunsumg Smart Cafe, Sri Agency, Damana Square, - Opp.Party(s)

Self

26 May 2016

ORDER

IN THE COURT OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, DEOGARH.

                                                                     C.D.C.NO.17/2015.

                                     Shri P. C. Mahapatra, Member and Smt. Jayanti Pradhan, Member

 

Pravat Kumar Pradhan, aged about 54 years,

S/O. Arjun Mohan Pradhan,

R/O. Kargil Chok, Deogarh,

Post/P.S/Dist/-Deogarh.                                                                   …        Complainant.

 

                   Versus

 

1. Samsung Smart Cafe, Sri Agency,

          Damana Square, Chandrasekharpur,

2. M/S.Sprimon Technologies , B-53,

          Main Road, Janapath, 1st floor, BBSR,

          Samsung Service -751007.

3. The Manager, Customer Care/Quality Control,

           Samsung India Electronic Pvt. Ltd.,

          A-25, Ground Floor, Front Tower,

          Mohan Co-operative Industrial Estate,

           New Delhi-110044.

4. Samsung India Electronic Pvt. Ltd.,

         B-1, Sector-81, Phase-2, Noida,

         Dist/- Goutam Budha, Uttarpradesh.                                             …        Opp.Parties.

 

For the Complainant: - Nemo.

For the Opp.Parties   :- None.

 

DATE OF HEARING 24.05.2016, DATE OF ORDER; 26.05.2016

 

          SMT.JAYANTI PRADHAN,MEMBER(W) : - Brief facts of the case as contended by the complaint is that , he purchased one Samsung Mobile set Model No.Z130 TIZEN,IMIE No.357394066153868 from the O.P.no.1 on dtd.15.4.2015 with a consideration of Rs.5000/- (Rupees five thousand) only vide its retail invoice No.15-16/5/116,TIN No.2111 5502360 with warranty card issued by O.P.no.1 . The mobile got defect after 3days of using and reported to O.P.no.1 on evening of 19.4.2015. Then after second time defect the O.P.no.1 sent the mobile to O.P.no.2 for rectification. After rectification the mobile got again the same problem. O.Ps are not responding by continuous complain. The mobile is in warranty period from purchase date but O.Ps are not responding the petitioner. So he is in mental agony due to attitude of O.Ps being appointed by O.P.4 as sustained financial loss, mental pain and agony due to deficiency in service. He has submitted all required document of mobile set.

          Though all the parties were served with notice U/S.14, O.P.1 and O.P.2 received notice and failed to file their written statement. O.P.3 and O.P.4 were served notice through registered letter bearing No. RO507349823IN & RO507349735IN and S/R did not return even after elapse of sufficient time. In order to not to defeat the principle and spirit of Consumer Protection Act, 1986, all the O.Ps were declared Ex-Partee and expartee hearing was done on 04.05.2016.

          Before dealing open any further it is pertained to considered whether the complaint is barred by jurisdiction, while, in doing show we find although O.P.1 has got no business institute at Deogarh but the products sold by him is manufactured by O.P.4 .O.P.No.4 having appointed a dealer at Deogarh very well carries on  business within the jurisdiction of this Forum. As per  definition provided under the Consumer Protection Act, 1986, if any of the O.Ps  resides or  carries on business within the territorial limit of a forum complaint can be lodge in that  forum. Hence, in the instant case we find no lapses as to jurisdiction.

          In the instant case privity of contract of sale of the mobile handset lies in between complainant and O.P.1 and seen the mobile sets has gone out of order within the warranty period and the defects is irreparable as per well settled of law in the case of Electro Audio Vission –versus- M/S Diddan Construction [2014 (1) C.L.T.428 (M.L)] where it has been held”(i) Consumer Protection Act,1986 2(1)(g)- Necessary party-Proper Party-Manufacturer-Held-That an necessary party is that in whose absence the court cannot pass an effective decree-At the very highest the original manufacturer may be a proper party in this case –Merely because the manufacturer may be a possible party is no ground for holding in the reverse that he is a necessary party whose non-joinder would be fatal to the whole proceedings – Apart from the above, The Consumer Protection Act ,1986 , is a beneficial statue enacted for the better protection of the interests of consumers – It is not to be shackled with the intricacies and niceties and technicalities of the civil procedure – The proceedings under the C.P. Act the primarily simple and summery in nature .(para 6).

(ii).Consumer Protection Act,1986,Section 2(1)(g)-Defective mobile-Liability of Manufacturer – Dealer directed to pay compensation –Held-If the dealer has any claim against the manufacturer, he is left with liberty to pursue the same in separate proceeding before appropriate forum in accordance with law.(para 8).

 (iii).Consumer Protection Act, 1986, Section 2(1)(g)-Defective mobile-Liability of Manufacturer-Plea of appellant that complaint is not maintainable as manufacturer is not party-Plea rejected – Held – That the Appellant is an independent dealer and not an agent of the manufacturer of the mobile phone in question – Had he been an agent, the matter would have been otherwise – Hence, he cannot wash off his hands after making a sale and shift his burden to the manufacturer nor can he insist that the manufacturer be added as a party to the proceedings – A consumer is primarily concerned with the person from whom he buys the goods, as privity a contract is between them and not with the manufacturer – Ordinarily, it is for the Appellant dealer to take care of the complainants concerns, where after he can take up the matter with the manufacturer for securing his own interests –Otherwise, the Consumer Protection Act,1986 would become totally unworkable and for every small complaint a consumer would have to involve the manufacturer who, although no doubt a proper party, is not a necessary party – In this view of the matter, the liability of the Appellant dealer for sale of defective goods to the consumer is beyond question.

In applying the ratio of the aforesaid case, we are of the opinion that in the instant case Opp.Party No.1 is deficient of providing service.

 

                                     ORDER.

          O.P.1 is directed to supply a new handset of the same make and model and if the same make and model handset is not available nor in the market to refund Rs.5000/- only to the complainant within 45 days from the receipt of this order. Also O.P.1 is directed to pay the complainant an amount of Rs.5000/- towards compensation of mental agony and pain sustained and Rs.2000/- only towards costs of litigation within 45 days, failing to comply this order within specified time in addition to afore stated amounts they shall have to pay additional amount @ 12% as interest per annum till the date actually the amount is paid or in course of law.

         

 

MEMBER.                                                                                   MEMBER.

 

                                      Dictated and Corrected

                                                by me.

 

 

                                                         MEMBER.