DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS,
AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 144
C.C. CASE NO. 42 OF 2019
DATE OF FILING: 13.03.2019 DATE OF JUDGEMENT: 23.09.2019
Present : President : Ananta Kumar Kapri
Member : Jhunu Prasad
Member : Jagadish Chandra Barman
COMPLAINANT : Sanjib Pahari, S/O – Joy Hari Pahari, Ghasiara West, Bose Bagan, P.S. – Sonarpur, Dist. – South 24 Pgs, Kolkata - 700150.
O.P/O.Ps : 1. Showroom / Branch Manager of Khosla Electronics Pvt. Ltd., Baruipur Showroom, Having its registered showroom at Kulpi Road, Baruipur NR – Baruipur Rail gate, P.O. & P.S. – Baruipur, Kolkata - 700144.
2. Proprietor of Geionee Authorized Service Centre at Subuddhipur Arup Bhadra Sarani, P.O. & P.S. – Baruipur, Kolkata - 700144.
3. Proprietor of Geionee Authorized Service Centre at 6, C.R. Avenue 1st Floor, Room no. – 105 A, Kolkata - 700144.
4. Proprietor of United Teleservices Limited (Imported by U.T.L) at 209, Garfa Main Road, Kolkata - 700078.
5. Dongguan Goldex Communication Technology Company Limited at Hupan Industrial Park, Daling Shan Town, Dongguan, Guang Dong, China – 523820.
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JUDGMENT
Sri Ananta Kumar Kapri, President
The nub of the facts leading to the filing of the instant case by the complainant runs as follows.
On 16.04.2018, the complainant purchased one GIONEE mobile set being no. K3010880000087, model no. A1 Black from O.P. no. 1 for consideration price of Rs. 14,599/- out of which Rs. 4,380/- was paid in cash by the complainant himself to O.P. no. 1 and the balance amount of consideration price was paid by BAJAJ FINANCE LTD., which the complainant agreed to repay by 7 monthly installments of Rs. 1,460/- each. A few days after the purchase of the mobile set, the set developed some defects. It developed charging problem, heating problem and power problem also. It could not be switched on and virtually went dead. So, on 28.06.2018, it was taken to O.P. no. 2 i.e. the service center which replaced some parts and thereafter returned the mobile set to the complainant on 07.07.2018. Thereafter, the said mobile set again went dead for which it was taken to O.P. no. 3 on 23.10.2018 for service. The parts of the mobile set were again replaced by this service center i.e. O.P. no. 3 and the mobile set was made over to the complainant by O.P. no. 3 on 17.11.2018. The said set again went defective; it could not be switched on. So, on 27.11.2018 it was again taken to O.P. no. 4 which also replaced some parts and made the mobile set functional. In this way, the mobile set has become the source of all sufferings of the complainant and therefore the complainant has filed the instant case praying for replacement of the mobile set by a new one or refund of the purchase money of Rs. 14,599/- to him and also for compensation for harassment and mental agony etc. Hence, this case.
O.P. no. 4 has not turned up to contest the case in spite of service on notice upon him. O.P. no. 5 is deleted from the cause title of the complaint, as it is a foreign company i.e. the company of China. O.P.s no. 1 and 2 have filed W/V separately wherein it is contended by O.P. no. 1 that the mobile set was sold to the complainant from his shop as the complainant himself chose to purchase the same. He has no authority to replace the mobile set and it can be done by the manufacturing company of the mobile set. The manufacturer of the mobile set is not a party to the case. It is his only duty to sell the mobile set and to do nothing more. He is not liable to the complainant for any alleged defect in the mobile set. There is no deficiency in service on his part. O.P. no. 2 has contended that it is only a service center of manufacturing company of the mobile set and it is his duty only to repair the defect of the mobile set. It received the mobile set on 28.06.2018, replaced the defective part thereof and made the mobile set functional. The complainant received the mobile set in full operation on 07.07.2018. There is no deficiency in service on his part and therefore he is not liable in any manner to the complainant.
Upon the averments of the parties, the following points are formulated for consideration.
POINT FOR DETERMINATION
- Are the O.P.s guilty of deficiency in service as alleged by the complainant?
- Is the complainant entitled to get relief or reliefs as prayed for?
EVIDENCE OF THE PARTIES
Petition of complaint is treated as evidence of the complainant vide his petition dated 03.07.2019. Similarly, W/V filed by O.P. no. 2 is treated as evidence of O.P. no. 2 vide his petition dated 19.07.2019. BNA filed by O.P. no. 1 and 2 and the same is kept in record after consideration.
DECISION WITH REASONS
Point no. 1 and 2 :
Now to see whether the complaint has been able to substantiate the manufacturing defect in the mobile set of him. It is true that no ex-pert’s report is produced on record by the complainant to prove manufacturing defect. The complainant has produced on record the tax invoice issued by O.P. no. 1 and it is proved by this document that he purchased the mobile set from the shop of O.P. no. 1. O.P. no. 1 also admits that the mobile set was sold to the complainant from his shop. O.P. no. 2 has also filed W/V and along with the W/V are filed 3 job sheets. These job sheets go a long way to establish that the mobile set of the complainant went defective frequently and therefore the complainant had to take it to the authorized service center of the mobile manufacturing company. The first job sheet shows that the mobile set was deposited with O.P. no. 2 on 28.06.2018 by the complainant and the same was returned to the complainant after repair on 07.07.2018. The defect mentioned in the job sheet is “Not switched on”. The second job sheet shows that the said mobile set was deposited with another service center of the company on 23.10.2018 and this time also, some parts were replaced to make the mobile set functional and thereafter the same was returned to the complainant on 17.11.2018. The defect for which mobile set was taken to the service center were “charging problem/ heating problem and no power”. Here is also a third job sheet placed on record and from the third job sheet dated 27.11.2018, it is evident that the mobile set was received on 27.11.2018 by O.P. no. 4 service center and the same was returned to the complainant on 24.12.2018 after replacement of some parts. All these facts stand established on the face of the record and from all these facts we can say and say only that the mobile set of the complainant has an inherent defect which cannot be permanently cured by the authorized service centers of manufacturing company. The mobile set was purchased by the complainant on 16.04.2018 and by 31.12.2018 i.e. within a period of 8 and half months of the purchase of the mobile set, the mobile set went out of order thrice and every time there was no power supply in the mobile set, virtually pointing out the dead condition of the mobile set. This condition of the mobile set is noted in the job sheets by authorized service centers of the manufacturing company of the mobile set. Taking all these into consideration particularly the condition of the mobile set frequently going out of order, we are of the opinion that the mobile set suffers from a kind of defect which is permanently incurable and this being so the different authorized service centers of the company failed to put the mobile set in the fit condition. The materials on record establish overwhelmingly that the mobile set is suffering from the manufacturing defects and that this defective mobile set has been constant source of mental agony and physical harassment to the complainant.
Now arises the question whether O.P. no. 1 i.e. the authorized dealer of the manufacturing company will be held liable for manufacturing defect of the mobile set. It has been contended on behalf of O.P. no. 1 that he is no more than a seller and therefore he cannot be made liable for any manufacturing defect of the mobile set. According to him, it is only the manufacturing company which is liable for such kind of problem of the mobile set. In the face of such contention of O.P. no. 1, it is to be seen whether O.P. no. 1 being a dealer of manufacturing company can be made liable as an agent of the company. A dealer is always held to be acting as an agent of the manufacturing company, if the dealer fails to prove that the goods were delivered to him by the manufacturing company upon realization of the entire consideration price. Coming to the facts of the instant case, it is found that O.P. no. 1 has not placed any document that the goods were delivered to him by the manufacturing company after having realized entire consideration money of the goods and this ratio has been propounded by the Hon’ble Apex Court in India Oil Corporation VS Consumer Protection Council reported in II 1994 CPJ 21 (SC). In the instant case, there is no document whatsoever produced on record by O.P. no. 1 to prove that the goods were delivered to him by the manufacturing company on payment of entire consideration price. This being the fact and circumstances of the case, we feel not a least hesitation to say that O.P. no. 1 has acted as an agent of the manufacturing company while selling the mobile set to the complainant and therefore O.P. no. 1 is liable to the complainant for supplying defecting mobile set. O.P. nos. 2, 3 and 4 have rendered their job and they have not been able to cure the malaise of the defective mobile set of the complainant. There is no deficiency in service on their part.
In the result, the case succeeds.
Hence,
ORDERED
That the complaint case be and the same is decreed on contest against the O.P. no. 1 with a cost of Rs. 10,000/- and dismissed against the rest of the O.P.s without any cost.
O.P. no. 1 is directed to hand over a new mobile set free from defects to the complainant according to his choice within the range of aforesaid consideration price and also to pay a sum of Rs. 10,000/- as compensation for harassment and mental agony caused to him, within a month of this order failing which he i.e. O.P. no. 1 will have to refund the consideration price of Rs. 14,599/- to the complainant with 10% interest from the date of purchase i.e. 16.04.2018 till full realization thereof with aforesaid compensation amount of Rs. 10,000/- to be paid by O.P. no. 1 to the complainant with interest at the rate of 10% p.a. till full realization thereof.
Register-in-charge is directed to supply a free certified copy of this judgment at once to the parties concerned.
I/We agree, Member Member President
Directed and corrected by me
President
