DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS ,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. 17_ OF ___2016
DATE OF FILING : 22.2.2016 DATE OF PASSING JUDGEMENT: 19.2.2018
Present : President : Ananta Kumar Kapri
Member(s) : Subrata Sarker & Jhunu Prasad
COMPLAINANT : Utpal Acharrya, Fartabad, Sahapara, P.O Garia, Kol-84
- VERSUS -
O.P/O.Ps : 1. Fast Information Network Pvt. Ltd. Hiland Park Shop No.225, 2nd floor, Kolkata -94, P.S Survey Park.
2. M/s S.S Communication, Nilachal Complex, Gate no.5, J.L no.48, R.S Dag no.1556, P.O Narendrapur, P.S Sonarpur, Kolkata – 103.
3. Micromax Informatics Ltd. 21.14A, Phase 2, Naraina Industrial Area, Unit 407, Kodak House, Delhi-110028.
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J U D G E M E N T
Sri Ananta Kumar Kapri, President
Tobe brief, the complainant’s case is that he purchased a Micromax mobile phone Model name and number Micromax A069 (white) (6000) at a consideration price of Rs.5500/- from the shop of O.P-1and gifted the same to his wife. The hand set was defective; it did not work properly. So, on 2.3.2015, it was changed by the O.P-1 but the new set also did not miss to give trouble to the complainant from the day one. Sometimes there were problems with Ringtone, sometimes no charge can be given and some other time there were also problems relating to memory card. To remove the defects, the complainant made visit to the service provider i.e O.P-2at least for more than 10-12 times. Last of all, O.P-2 detained the mobile set ,having issued job sheet on 5.12.2015. But the problems with the hand set were never solved and, therefore, the complainant is compelled to file the instant case praying for return of the consideration price and for compensation amounting to Rs.80,000/-. Hence, this case.
The O.P-3 is the company itself and does not come to contest the case inspite of service of summon upon it and the case is heard exparte against O.P-3.
The O.P-1i.e the authorized dealer of Micromax Company filed the written statement to contest herein; but thereafter he did not turn up. The written statement filed by the O.P-1 is kept in the record.
According to the version of his written statement, he sold the hand set to the complainant with the warranty card. He is a retailer and as such he is not liable for any defect of the mobile set. It is the company which is liable for any defect of the mobile set. There is no cause of action arising against him and ,therefore, the case should be dismissed against him.
The O.P-2 is the service provider and he has also filed written statement to contest the case. According to him, complainant did not follow the instructions to use the mobile set and the mobile set went defective due to wrong handling by the complainant. The O.P-2 being a service provider is not liable for the defect as alleged by the complainant ; he cannot replace the mobile set by a new one and it is only the Micromax authority who can replace the set and is only liable to the complainant.
Upon the averments of the parties the following points are formulated for effective adjudication of the matter in dispute.
POINTS FOR DETERMINATION
- Are the O.Ps liable for the defect and for not repairing the mobile set of the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for ?
Evidence of the parties :
Complainant has filed affidavit-in-chief which is kept in the record. BNA are also filed by t he O.Ps which are kept in the record for consideration.
DECISION WITH REASONS
Point nos. 1 and 2 :-
It has been argued on behalf of the O.P-2 i.e the Service Provider that the initial burden rests upon the complainant and it is the co0mplainant who will have to prove by cogent evidence that there is defect in the mobile set. Such defect can only be proved by an expert evidence. In the instant case, as goes his argument, there is no expert evidence to prove that the mobile set is under any defect and as such the complainant is not entitled to get any relief as prayed for.
It is true that the complainant will have to prove by cogent and reliable evidence that there are defects in some form or other in the mobile set and these defects can be proved by expert evidence. Expert evidence is a piece of evidence and by such evidence a fact may be proved. This is only one way of proving a fact. There are also other ways of proving any fact. It is well settled principle of law that a fact when admitted need not be proved.
In the petition of complaint it has been categorically alleged by the complainant as such “Sometimes there were problems with ringtone, sometimes no charge can be given and problems relating to battery, sometimes there is problems relating to memory card”. In paragraph 9 of the complaint it is also stated by the complainant thus “The complainant went to the service center for repair at least for more than 10-12 times. Every time they told him that they will repair it and there will be no more problem”.
On perusal of the written statement filed by the O.P-2, it is found that there is no denial in the written statement that the complainant visited the shop of O.P-2 for more than 10-12 times. There is even no denial in the written statement that the mobile set suffered from the problems of ringtone, battery or problems relating to memory card. There is no specific denial in these regards in the written statement. In absence of specific denial of the aforesaid averments of the complainant, we feel no hesitation to hold that those averments may be accepted as admitted by the O.P-2.
Now, if those averments are accepted to be admitted in law, it stands proved that the complainant visited the shop of O.P-2 with his mobile for more than 10-12 times for the purpose of repair. He purchased the mobile phone on 2.3.2015 and from day one, he had to visit the shop of O.P-2 for about 10 times. No one will make any visit to the shop of the service provider with the mobile if the mobile provides a good and satisfactory service. The very fact that the complainant had to make visit to the shop of the service provider i.e O.P-2 for several times ip so facto proves that the mobile phone was defective and that the O.P-2 did not provide proper services to the complainant in order to remove the defect of the mobile. It is nowhere disputed by the contesting O.Ps that the warranty period of the mobile phone had expired before the defect could have arisen. Regards being had to this aspect, we do hold that it was bounden and legal duty of the O.p-2 to provide proper services to the complainant, so that the mobile set of the complainant can be made fully functional. Reluctance to provide proper services to the complainant within the warranty period of the mobile set tantamounts to deficiency in service, for which the service provider i.e O.P-2 and also the manufacturing company i.e O.P-3 are liable.
It has been contended on behalf of the O.P-1 i.e the authorized dearer of the manufacturing company that the task of the dealer is to sell the goods only ,but not to shoulder the liability for any defect of the goods.
This proposition applies only when the authorized dealer becomes successful to prove that the manufacturing company realized the full price of the goods from him ,while delivering the same to the dealer. Unless this thing is proved by the dealer, the dealer will be held liable as an agent of the principal for whatever defect which may arise in relation to the goods sold by him. This ratio has been promulgated by the Hon’ble Apex Court in Indian Oil Corporation Vs. Consumer Protection Council , II (1994)CPJ 21 (SC) .
Upon the facts and circumstances discussed above, complainant is deemed entitled to get the relief as hereinafter provided.
In the result, the case succeeds in part.
Hence,
ORDERED
That the complaint be and the same is allowed on contest against O.P-2 and exparte against O.P nos. 1 and 3 with cost which is quantified at Rs.2000/-.
The O.Ps, who will remain jointly and severally liable, are directed to supply the parts of the mobile ,whichever is required, free of cost and free from defect , and to make the mobile set fully functional ,giving fresh warranty for a period of one year from the date of repair and also to pay compensation amounting to Rs.3000/- for mental harassment and agony of the complainant and Rs.2000/- as litigation cost to the complainant within a month of this order, failing which, the O.Ps will return entire consideration price of Rs.5500/- to the complainant and the amounts of compensation and cost as referred to above along with interest @8% p.a thereon till the date of realization.
Let a free copy of this order be given to the parties concerned at once.
President
We / I agree.
