DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C. CASE NO. 120 OF 2018
DATE OF FILING: 26/10/2018 DATE OF PASSING JUDGEMENT: 13/06/2019
Present : President : Ananta Kumar Kapri
Member : Jhunu Prasad
COMPLAINANT : ANKUR KUMAR NASKAR, Baruipur Golepukur Church Lane, P.O. & P.S. – Baruipur, Ward No. – 15, South 24 Parganas, Kolkata – 700 144.
O.P/O.Ps : 1. SAMSUNG SERVICE CENTRE, 128 D, Raja S.C. Mullick Road, Azad Hind Market Place, Garia, Patuli, Kolkata – 700 047.
2. BHARAT GIFT AND ENTERPRISE, Baruipur Kachari Bazar, Kalyanpur Road, P.O. & P.S. – Baruipur, Kolkata – 700 144.
3. SAMSUNG MANUFACTURER, Noida, D 1, Sector – 3, Noida, Uttarpradesh (UP), PIN – 201305.
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JUDGMENT
Sri Ananta Kumar Kapri, President
With allegation of manufacturing defect, though not in specific words as the complainant is a layman, in the mobile set purchased by him from O.P. no. 2, he, i.e. the complainant has filed the instant case under section 12, CP Act, 1986 against the O.P.s, praying for return of the consideration price thereof.
The whole drift of the facts leading to the filing of the instant complaint runs as follows.
The complainant purchased a mobile set on 22.02.2018 with particulars, “Samsung C-9 Pro”, manufactured by O.P.-3 Co. from the shop of O.P.-2 for consideration price of Rs. 29,900/-. One year’s free warranty service was provided to the complainant with the mobile set. About 2 and half months after the purchase of the said mobile, the earpiece of the mobile set went out of order. O.P.-1 is the authorized service centre of O.P.-3 Company. The set was taken for repair to the shop of O.P. no. 1 by the complainant. O.P.-1 repaired the same free of cost and returned the mobile set to the complainant after 10 days. The mobile set again developed a snag; its front camera stopped working and that was about 5 days after the above repair. The set was again taken to O.P.-1 by the complainant for repair. This time, O.P.-1 expressed his inability to repair the phone set on the plea that the required part was not available with it that moment. The complainant went back his home in empty hand without getting the mobile set repaired. O.P.-1 assured to the complainant, as it is alleged in the complaint, that he would give information to the complainant as soon as the parts would be available to him. About a month thereafter, the mobile set became totally dead; neither any picture nor any sound was available from it. In this precarious condition, the complainant approached the office of the Assistant Director, Consumer Affairs at Baruipur for redressal of his grievances. But, his problem remained unresolved. Thereafter, on the advice of the office of Consumer Affairs as stated above, complainant has come up before this forum with the filing of the instant case by himself, praying for return of the consideration price and also for compensation etc.
Hence, this case.
The O.Ps have entered appearance in this case and filed written version of their statements separately. It is the version of O.P.-2 that there is no deficiency in service as alleged on his part and he is not liable to the complainant in any manner. However, he admits the sale of mobile set to the complainant. The version of O.P.-1 and O.P.-3 are almost same. According to them this forum has no territorial jurisdiction to entertain this case. They have denied that there is any manufacturing defect in the mobile set. It is further averred by them that complainant has failed to establish manufacturing defect in the mobile set by any cogent evidence including expert report. The case is filed by the complainant with extraneous motive and therefore the instant case should be dismissed in limini with cost.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Is the case maintainable within the territorial jurisdiction of this forum?
- Is there any defect in the mobile set of the complainant including manufacturing defect, requiring refund of consideration money or replacement of the mobile set?
- Is the complainant entitled to get relief of reliefs as prayed for?
EVIDENCE OF THE PARTIES
Petition of complaint is treated as evidence of the complainant, vide his petition dated 06.03.2019. Similarly, written version of statement filed by O.P. nos. 1 and 3 are treated as their evidence, vide their petition dated 15.03.2019. O.P. no. 2 has not turned up to contest the case after filing of W/V and therefore the case proceeds ex-parte against him.
DECISION WITH REASONS
Point no.1 :
Ld. Lawyer appearing for the O.P nos. 1 and 3 has contended that this Forum has no territorial jurisdiction to entertain this case as O.P nos. 1 and 3 conduct their business outside the territorial limits of jurisdiction of this Forum.
It is true that O.P nos. 1 and 3 conduct their business outside the territorial limits of jurisdiction of this Forum. O.P-1 has his business place at Garia under P.S Patuli and O.P-3 has his business place at Naida, Uttar Pradesh. Only O.P-2 has his business place at Baruipur and the mobile set was purchased by the complainant from the shop of O.P-2 at Baruipur. These facts go undisputed and from these facts, it is found that the cause of action of the case arose partly at Baruipur. We know very well that cause of action is bundle of material facts. The fact remains that the said set was delivered to the complainant at Baruipur. The fact remains that the consideration price for the said set was also paid by the complainant to the O.P-2 at Baruipur. Regards being had to all these facts and circumstances, we do not feel any kind of difficulty to say that the cause of action of the case arose partly at Baruipur and, therefore, the instant case is maintainable within the territorial limits of jurisdiction of this Forum in accordance with the provisions under section 11(2)( c ) of C.P Act, 1986. This point is thus answered in favour of the complainant.
Point no.2 and 3 :
It has been argued on behalf of the contesting O.Ps that the complainant has not produced any paper to prove any defect in the mobile set, not to speak of any mechanical defect. According to the submission of those O.Ps, the complainant has prayed for return of the consideration price and return of the consideration price can only be ordered in favour of the complainant when the complainant succeeds to prove by cogent evidence including expert evidence that there is a manufacturing defect in the product of the company. But, the complainant has produced no document whatsoever to prove that there is manufacturing defect in the product of the company and for this reason, the complainant is not entitled to get return of the consideration price of his mobile set.
It is true that the complainant has not been able to file any document to prove the existence of manufacturing defect in his mobile set. A fact is proved with the help of evidence which may be oral or documentary. Admission” is also a piece of evidence whereby a fact stands proved when its existence is admitted by the contesting O.Ps.
Coming to the facts of the instant case, it is found that the factual matrices of the complainant have remained ever unchallenged. It is the version of the complainant that he took his mobile set ,which he purchased from the O.P-2, to the authorized service center of O.P-3 for repair and that was about 2 and ½ months after the purchase of the mobile set. It is further stated by him in his petition of complaint that the mobile set was repaired at that time by the O.P-1 without taking any kind of cost from him. The further averment of the complainant is that about 5 days after the aforesaid repair of the mobile set, the mobile set developed another snag and this time the front camera of the mobile set stopped functioning. According to the complainant, he took the set again to the service center i.e O.P-1 for repair. But , this time the O.P-1 expressed his inability to repair the same and returned the phone set to the complainant on the plea that the requisite parts were not available with him that moment and he assured the complainant that he would inform him as soon as the parts would be available to him. It has further also been averred by the complainant in his petition of complaint that about a month thereafter, the mobile set went totally dead . All these averments of the complainant as transpiring in the petition of complaint , which has been treated as his evidence, have not at all been denied or contradicted by the O.P nos. 1 and 2 in the written statement filed by them. If a particular averment of the complainant is not denied , the rule of pleadings lays down that the said averment would be treated as being admitted. The aforesaid facts as averred by the complainant in his petition of complaint have not been denied and contradicted by the contesting O.Ps. Those facts have remained unchallenged and admitted. By these undisputed and admitted facts, it stands proved that there is a defect in the mobile set of the complainant and that defect has not been remedied by O.P-1 even in warranty period.
The term “Defect” has been defined under section 2(1)( f ) of the C.P Act, 1986 as follows:-
“ Defect means any fault, imperfection, shortcoming in the quality ,quantity , competency, purity or standard which required to be maintained by or not any law for the time being in force or under contract, express or implies or as is claimed by the traders in any manner whatsoever in relation to any goods”.
It stands proved by the unchallenged facts as pointed out above that there is defect in the mobile set of the complainant.
Now, to see whether this defect in the mobile set can be treated as manufacturing defect thereof. It is true that here is no expert evidence on record to prove manufacturing defect in the mobile set. It is to be seen whether manufacturing defect can be inferred or presumed from the facts established on record. In this regard , reliance may be placed on a judgment of Hon’ble National Commission, i.e Tata Motors Vs. Rajesh Tyagi, reported in I (2014) CPJ 132 (NC) ,referred by the contesting O.Ps in the BNA filed by them. It is laid down therein as follows :-
“ 7. We have also taken a view that onus shifts to the manufacturer to show that the vehicle does not suffer from manufacturing defect once complainant has proved and discharged the initial onus that the vehicle was defective vehicle on the basis of large number of job cards showing that vehicle was taken on many occasion for removing one defect or the other. Complainant has already suffered immensely and is a wronged person by having been sold a defective goods and to expect him to again incur expenses by obtaining expert opinion to show the vehicle suffers from manufacturing defect will be too much. Large number of visits to the workshop from the day of purchase of vehicle for removing some or other defects is sufficient to draw the inference that the vehicle is a defective vehicle. The circumstance of the vehicle having been taken for removal of defects within or after the period of warranty leaves no manner of doubt that the goods sold to the consumer is not only defective but also suffers from manufacturing defect. If the defect continues for months together and years together and erupts time and again no other inference can be drawn than that the vehicle suffers from manufacturing defect as defects which are not of manufacturing nature can be rectified or removed without their recurrence or without giving any further inconvenience to the consumer”.
To obtain return of the consideration price or replacement of the product by any one, the complainant will have to prove the existence of manufacturing defect in his mobile set. The initial burden of proof of manufacturing defect lies on him and if he is able to prove it, the onus shifts to the O.P i.e the manufacturing company. In the instant case, it has already been pointed out that the mobile set was taken twice to the shop of O.P-1 for repairs. It was first taken to the shop of O.P-1 for repair within a period of 2 and ½ months . Again, it developed another snag about 5 days after the aforesaid repair. This time, O.P-1 was unable to repair it and, therefore, he returned the mobile set to the complainant with a plea that the required parts were not available with him. O.P-1 assured the complainant that he would inform him (the complainant ) when the required parts would be available to him. No such information has yet been supplied to the complainant by the O.P-1 ,although the defect arose within the warranty period of the mobile set. All these facts have remained unchallenged and there is no denial of the O.Ps to these facts as stated by the complainant. There is no explanation on the part of the contesting O.Ps as to why the complainant has not been informed when the required parts had reached him. The fact remained that there was no shortage of the required parts in the shop of O.P-1. O.P-1 could have produced the stock register to prove that his stock actually ran out. No such stock register has been brought on record and this goes to prove that the O.P-1 returned the mobile set to the complainant as he found that the mobile set was beyond repair. The matter may be considered from a different angle and let us do it. The snag in the mobile set of the complainant developed within the warranty period. The instant case has also been filed within the warranty period. The contesting O.Ps could have filed a proposal before the Forum to the effect that they are ready and willing to repair the mobile set of the complainant if the said set is made over to them from the court or the complainant. But, no such proposal has been moved by those O.Ps before the Forum. Why? It means and means only that the mobile set was beyond repair and this was well known to the O.P-1 i.e the authorized service center of O.P-3. It is also found established that the mobile set went defective twice within 2 & ½ months of its purchase and lastly it became dead within a month thereafter. Frequent eruption of defects is also a point that there is a manufacturing defect in the set.
It has already been pointed out in the ruling cited above that a defect is a defect of manufacturing nature, if it is found not to be redressed by repairs. The defect arising in the mobile set of the complainant also appears to be beyond repair and as such we can easily draw a presumption to the effect that the defect was one of manufacturing nature and, therefore, that defect has been found to be not amenable to any repair by O.P-1 i.e the authorized service center of the manufacturing company i.e O.P-3.
It has been argued ad nauseam on behalf of the contesting O.Ps that there is no expert evidence placed on record by the complainant and, therefore, the complainant has failed to establish manufacturing defect in the mobile set. From our discussion as pointed out above, it has been established that the complainant has been able to discharge his burden of proof in so far as the expert evidence is concerned and, therefore, onus of proof shifts to the manufacturing company. The contesting O.Ps could have filed a petition before the Forum , praying for analysis of the mobile set by an expert person. But , no such petition has been filed on behalf of the contesting O.Ps. Regards being had to all these aspects, we do say that the contesting O.Ps have failed to discharge the onus of proof and in view of this, we feel no hesitation to hold that there is manufacturing defect in the mobile set of the complainant and that the complainant has been able to establish this defect by materials on record.
Now about harassment and inconvenience of the complainant. Mobile service has been one of the essential services in our daily life like food and water. We cannot pass even a moment without mobile service. A person purchases a new mobile with a very high expectation but what happens to him , when it is found that the said mobile set of his choice goes out of order within a few days of its purchase. His expectation is belied and his frustration knows no bound that moment. He suffers mentally, emotionally and also in terms of loss of time , business and convenience. A mobile set when goes defective, and when it becomes irrepairable causes immense and irreparable loss to the owner of the set and such loss can never be quantified in terms of money.
It has also been raised on behalf of the O.P-2 in the written statement filed by him that he being the dealer of manufacturing company is not liable to the complainant in any manner for any defect in the mobile set and that there is no deficiency in service on his part. A dealer of a product is considered as the agent of the manufacturing company and such relation of principal and agent ceases only when it is proved that the dealer purchased the goods on payment to the manufacturing company. There is no averment in the written statement filed by the O.Ps that the dealer i.e O.P-2 purchased the mobile set from O.P-3 ,the manufacturing company on payment of consideration price. In absence of such fact, it can never be said that the relation of principal and agent ceased to exist between the O.P-2 and the manufacturing company i.e O.P-3. That relation of principal and agent is held to be still subsisting and therefore, O.P-2 being the agent of O.P-3 is also held liable for deficiency in service caused to the complainant.
Regards being had to all these facts and circumstances as discussed above, we are of the opinion that the complainant has suffered tremendous loss, harassment and inconvenience due to his mobile set being not repaired by the O.P-1, within warranty period and he is entitled ,therefore, to get relief which is provided as hereunder.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P nos. 1 and 3 and exparte against O.P-2 with a cost of Rs.5,000/-.
The O.P s, who will remain jointly and severally liable for satisfaction of the decree/award, are directed to deliver a brand new mobile set free from defects with fresh warranty service to the complainant as per his choice within a month of this order ,failing which the O.Ps will pay Rs.29,900/- as refund amount of consideration price and Rs.5000/- as compensation for mental agony and harassment caused to the complainant within a month of default as referred to above. If the O.Ps fail to pay the consideration price of the mobile set i.e Rs.29,900/- along with cost amount and compensation amount as referred to above to the complainant within the period as aforesaid, those amounts i.e the compensation amount, cost amount and the amount of refund will bear interest @10% p.a till full realization thereof.
The complainant will return the defective mobile set to the O.Ps as soon as the delivery of the new mobile set is made over to him. He must also make additional payment to the O.Ps , if necessary, after having adjusted the price of defective mobile, litigation cost and the compensation amount, if price of new mobile set sought to be purchased by the complainant is higher than the price of the defective mobile. On the other hand, if the price of the new mobile is lower than the price of the defective mobile, the O.Ps will return the surplus money to the complainant along with the litigation cost amount and the compensation amount.
Registrar-In-Charge of this Forum is directed to send a copy of the judgment free of cost at once to the parties concerned by speed post.
President
I / We agree
Member
Dictated and corrected by me
President
