DISTRICT CONSUMER DISPUTES REDRESSAL FORUM. BOLANGIR.
…………………
Presents:-
- Sri P.Samantara,President.
- Sri G.K.Rath, Member.
- Smt.. S.Rath, Member.
Dated, Bolangir the 29th day of June 2016.
C.C.No. 84 of 2015.
Manoj Kumar Meher son of Ganesh Ram Meher Village-Kansar,
P.O.Ghunsar, P.S.Patnagarh, Dist-Bolangir.
.. .. Complainant.
-Versus-
1.The Bhagabati Products Ltd. An SO 9001:2008/1400,
Certified Company, At- Plot No.18,Sector-2,IIC
(Pantnagar) Rudrapur,U.S.Nagar, Uttarakhand-263153.
2.Anmol Mobile At- Main Road, Barpali-768029,
At/P.O/P.S- Barpali, Dist- Bargarh.
3.M/S. Gopanjali Tele Sales,Authorised Repairing Centre of Micromax,
H.O-Bansi Pattnaik,At-Kansaripada,1st Floor, Suruchi Market Complex,
Bolangir Town, P.O/P.S/Dist- Bolangir.
.. .. Opp.Parties.
Advocate for the complainant- None.
Advocate for the O.P.No.1 & 3 – None.
Advocate for the O.P.No.2. - Sri C.K.Mishra,
Date of filing of the case-16.11.2015
Date of order -29.06.2016
JUDGMENT.
Sri P.Samantara, President.
In brief, the complainant purchased Micromax Handset of model No. CANVAS A-104 against a consideration Rs 5,700/- dt.20.01.2015 vide cash Memo No.43 from ANMOL MOBILE, Main road Barapali, Bargarh.
2. The complainant averred the handset developed defects in consequence same mobile handed was deposited at “M/s Gopanjali Telesales, Bolangir, happened to be the Authorized service centre. The product carries a warranty and the defects are continuously communicated dating from 17.07.2015 to 5.10.2015 where was only on dt.5.10.2015 one job sheet bearing No.-E010305-1015-19552248 has been issued. The job sheet has admitted the warranty tenure and reported the problem indicating “ 4101 Power does not switch ON, 5305 charging/Battery, back up battery empty, besides touch screen problem etc.
3. The Authorized Service Centre, either removed the defects or intimated the position and repairing status or refunded recommendation to the manufacturer, rather omits to respond responsibly. The manner of performance creates dissatisfaction and mental agony, thus praying to provide a substitution of new handset and compensation as deems fit and proper. Relied on cash memo, job sheet in photo copies, SMS messages and affidavit.
4. Pursuant to Notice, the O.P.2 appeared and made the version in admission of handset purchase, cash Memo content, Model No and date of the transaction effected. And also averment made, the O.P is a trader of Mobile handset of Micromax and other brands. Further contending after selling the handset the O.P has no liability for the warranty of the mobile sold and in case of any defect, the authorized service centre of the company will either repair/replace the defective mobile handset. As there is no allegation against the present O.P so he has got no liability. Prayed, the case maybe dismissed against the present O.P in limine.
5. The O.P.1 remain silent, neither appeared nor made any version.
6. The O.P.3 also omit to respond, neither appeared nor made any version.
7. Heard and perused the documents on record.
8. Perusal of records reveals under section 3 and 4 of Section 28A of Consumer Protection Act, the service is sufficient and even sufficient of notice, the O.P.1 and O.P.3 the authorized service centre, did not prefer to appear or file any version.
9. On the given circumstances section 13(b) of C.P.Act is attracted and adjudication ensured accordingly.
10. Further we observed, O.P.3 repeatedly omitting and ignoring the call of the forum being an authorized service centre and also observed. O.P.1 is not bothered to appear, having giving various opportunities, hence O.P.1 and O.P.3 are willfully ignoring not to respond and although getting intimation or notice making less significance the court instrument by the O.Ps activity conspicuously vindicates that there is a collusive exercise to each others default. We take it serious as issues are gravitious in nature.
11. The O.P.2 responded in submission that after selling the handset, the O.P has no liability for the warranty and but the conditions declared in the cash memo-such as- Goods once sold cannot be taken back or exchanged contradicts its own admission that we give warranty as per terms and condition of the manufacturer etc. Such declaration and non application of the rule is grossly illegal under Consumer Protection Act and other laws of land. Thus it is no more warranted to be encrypted in cash memo. It needs immediate remove, being a principle of unfair trade practice and willful negligence that attracts penalty.
12. The O.P.3 Gopanjali Tele Sales is the approved authorized service centre and not appeared or responded either. We have observed in numbers of cases, the service centre employs such ignoring tactics and consumers suffer much in quality, quantity, shortcoming and in manner of performance. In the instant case, the petitioner has deposited the mobile and received job card and the shop neither refunding or removing the defect on substituting, rather even daring not to respond call of the forum and disregards laws of the land in malicious way and this is not an isolated case, orders passed and willfully defied such
actions proves entire non co-operation exercise is collusive and defrauding one.
13. The petitioner purchased the handset Canvas model No. A-104, on dated 20.02-.2015. Repeated defects intimated and respond is insignificant as to the dates communicated in personal approach and defects removed are too poor to note. But on dt.05.10.2015, the defect became serious and in deposit Job sheet issued. As the petitioner submitted, the entire registration to deliver is managed with on-line. In reference we quote one message;- TEXT-(1) DM- MMXSER: Dear Customer, your device deposited with us under job sheet No.E010305- 0815-18298522 has been repaired. Please collect it from the service centre. Regards, Micromax Service, Received -5.27 P.M, Sept 09, 2015.
(ii)Unlike other SMS, this proves that the authorized service Centre is within the knowledge and so also the manufacturer. And it is ample evidential the defect is persistent and not removed. It is settle principle full refund of price of the product is permissible in case of persistent defect .Even the defects surfaced during warranty period and so also it is observed Dealer is bound to repair the product during period of warranty and there is no document in the record, the authorized service centre and dealer either has communicated have taken steps in removal or refund or substitution made within a time frame. In our opinion, O.Ps contribute enormous negligence in institution of this case and materials on record shows none of the O.P discharge their obligations under the warranty provision and in case of Premnath Motors- “ the Delhi High Court observed that while a breach of condition give rise to right to treat contract as repudiated, while a breach of condition give rise to right to treat contract as repudiated, while breach of warranty give rise to a claim for damages, but not to a right to reject the goods and treat the contract as repudiated”….”such warranty becomes essential because the consumer of the product is stationed in far off distance from that of manufacturers place of business and such clause offer a kind of quality assurance to the customers that in the event of failure of the product and parts, he is insulated from any loss or damage, resulting from the purchase and use of the product”.
14. In the present case the non appearance, omission and ignoring the notice of the forum, the O.P.1 cannot absolve his statutory obligation. Our same opinion observed in the case: Susil Kumar Vs Tata Motors Ltd & Others in which it is held- Manufacturer can not wash off its hands after selling a defective vehicle- 2011(3) 73 H.P and in Krishna Kumar Sahoo Vs Manager, Jaishri Electronics- Held- It is the duty of Manufacturer/dealer to repair defects in product during warranty period within a reasonable time.-2010 (1) CPR 149 (Chhatisgarh)..
15. So on the above made discussion, it made conclusive that O.Ps contribute negligence and shortcoming in non adhering the rules that they framed in under warranty besides it, revealed the O.Ps do not care the laws of land, ignoring notices and opportunities. Thus O.Ps are jointly and severally contributory negligence, faults and intentionally denial amounts to gross negligence, unfair trade practice coupled with deficiency of service within the provision of the consumer protection Act. Failed in all fronts of rendering service derail the remedy available to the complainant in deliberate for which he sustained unsurpassed mental agony, this we ordered.
ORDER.
The O.Ps are jointly and severally liable to pay the petitioner a sum of Rs 5,700/- the original cost price along with Rs 1,000/- towards compensation and inclusive of cost or in alternative a new brand handset of such Micromax brand models, name, design and specification as therein, within 20 days, failing Rs 10/- per day penalty will accrue on entire amount from the date of application till realization without fail.
(ii) Further the O.P.1 will also pay a penalty of Rs 1,000/- (Rupees One thousand) only to the petitioner for non adhering to the call of the forum. Non compliance within the above time limit will attract in accrual a sum of Rs 01/- per day furtherance from the date of order till realization.
(iii) The O.P.3 is happened to be a habitual defaulter to the call of the forum in several cases, thus will also pay a sum of Rs 1,000/- to the petitioner instantly failing which a penalty of Rs 01/- per day will accrue till realization.
We also warned O.P.3 not to ignore the forum in either way such further ignorance or deliberate omission will attract heavy penalization along with direction to disconnect the electricity line from WESCO in other source to the shop or workshop instantly near future.
(iv) The O.P.1 is also review the authorization of Micro-Max Service Centre at Bolangir of O.P.3 as the manner of performance is too poor, in ordinate delay. Non instant responsive and callous in willful way is vivid which is not warranted in any way. Otherwise steps will be taken to cease the sales, promotion display and advertisement of the Micro Max Branch products in the entire district and transaction of bank account as it requires.
(v) The Executive Engineer, WESCO is directed to disconnect the electricity connection given to “Gopanjali Tele Sales, Clubpara, Bolangir, Authorized Service Centre of Micromax branch products forthwith in intimating to the Forum, on application by the petitioner.
(vi), We hereby direct all the banks in Bolangir town and its periphery to cease the account/accounts of Gopanjali Tele Sales Clubpara, Bolangir and make it inoperative till further order.
ORDER PRONOUNCED IN OPEN FORUM THIS THE 29TH DAY OF JUNE’ 2016.
(S.RATH) (G.K.RATH) (P.SAMANTARA)
MEMBER MEMBER. PRESIDENT.
