Date of filing :- 13/02/2012
Date of Order :- 27/05/2015
DISTRICT CONSUMER DISPUTES REDRESSAL FOURM(COURT)
B A R G A R H.
Consumer Dispute Case No. 10 of 2012.
Swati Mishra, aged about 21 (twenty one) years, Daughter of Bijaya Krishna Mishra, Occupation- Studentship, Resident of Mohanty Pada Bargarh, P.o/Dist. Bargarh, ..... ..... ..... Complainant.
- V e r s u s -
Bindal Mobiles on Mobile represented through its proprietor namely Main Road, Bargarh At/P.o.- Bargarh, under P.S. Bargarh, Dist. Bargarh.
.... .... .... Opposite Party.
Counsel for the Parties:-
For the Complainant:- Sri. S.P. Mahapatra with other Advocates.
For the Opposite Parties :- Sri. R.P. Singh with other Advocates.
-: P R E S E N T :-
Miss Rajlaxmi Pattnayak ..... ..... ..... ..... ..... ..... ..... P r e s i d e n t.
Mrs Anjali Behera ..... ..... ..... ..... ..... ..... ..... M e m b e r.
Sri Pradeep Kumar Dash ..... ..... ..... ..... ..... ..... ..... M e m b e r.
Dt. 27/05/2015. -: J U D G E M E N T :-
Presented by Miss. Rajlaxmi Pattnayak, President.
Brief facts of the case:- The Complainant Swati Mishra purchased one Nokia C2-02 White Gold model Mobile set from the Opposite Party namely Bindal Mobile's On Mobile, Bargarh, paying an amount of Rs.4,000/- (Rupees four thousand)only on Dt. 23/10/2011 for his personal use. After few days of purchase Petitioner says that the set did not function properly for which he approached the Opposite Party to get the problem taken care off but found no help. After failure of the grievance not been settled by the Opposite Party the Complainant filed this complaint before this Forum with a prayer either for replacement of Mobile with new one or refund of the price of the Mobile set along with Rs.50,000/-(Rupees fifty thousand)only towards deficiency in service and sufferings.
Notice was duly served upon the Opposite Party. The Opposite Party appeared and filed his version on Dt.02/04/2013 denying the allegation levelled against him. While Admitting that the Complainant has purchased the Mobile set from him submitted that this Complainant case should be dismissed due to non joinder of proper party. It is submitted the Opposite Party is not the manufacturer of the mobile set nor he is authorized service center rather he is only a authorized retail dealer of Nokia Company to sale the Nokia Mobile set in Bargarh Town. If the Nokia set of the Complainant shown any defects, she should have contacted the Nokia care center of Bargarh as the Opposite Party is only authorized to sale the Nokia set but not to repair or service of the set. It is further submitted that the Complainant has never approached him about the defect occurred. Besides when the bill it self along with Nokia Manual books in clear and categorical terms shows about the service of Nokia Mobiles set to be done at the authorized Nokia care center, the Complainant should have approached the nearest Nokia care center which she has not done and now making this malicious complaint before the Forum is nothing but a crocodile's tear in order to defame the Opposite Party. Hence prayed for dismissal of the case in the interest of justice.
Points to decide:-
Whether any deficiency of service occurred ?
Whether the case is bad for non-joinder of necessary party?
To what compensation ? The Complainant is entitled for the problem ?
Heard the advocate for the Petitioner/Complainant as well as advocate for Opposite Party. Perused the record for information about the Complaint.
Answered to Points No.1(one), No.2(two) and No.3(three)
Purchase of the mobile phone is admitted by both the parties, proved further via the money receipt filed with the case record and version of the Opposite Party. The point whether the Complainant approached the Opposite Party and got denied the services of Opposite Party is under question. Opposite Party says that he is not responsible for the deficiency of service as he is not the authorized service provider,as he is only the dealer. But even though the Forum feels that he is the one to assist to purchaser to proceed with the processes when grievance occur. On the whole, it is well understood that a purchase occurred with some hope and aspirations which are not full filled and the purchaser suffered from the transaction to an amount frustrating the whole purpose of the transaction.
The problems cited by the Complainant are covered under the warranty services as it is seen from the Nokia Guide book filed with the record which clearly shows that the set is covered for a whole year. Hence gross negligence and deficiency of service lies with the opposite party and they are liable jointly and severally to compensate the Complainant from what he suffered. Regarding the Opposite Party's contention about the Non-joinder of manufacturing company as a necessary party, the Forum views that in a transaction of purchase the basic privity of contract is between the consumer who has bought the goods for consideration and the seller who has sold the foods to him either as a seller or a distributor thereof. As in the context of the present case, the primal grievance of the Complainant here-in would be against the seller only on the ground that the goods supplied by him suffer from one or on more defects. Indeed one can visualize a situation where the purchaser of goods may not even be aware of who the original manufacturer thereof. The seller alone is thus the primal and necessary party in a Complaint of this nature against whom in indeed the relief may be claimed. It then deserves Notice that the '' Manufacturer '' of goods has been defined separately by the statute in clause (j) of subsection (1) of Section-2 which includes the person who makes or manufacturers any goods or part thereof. It is no where laid down either in the act or the rule framed there under that when ever a seller is proceeded against under the statute, original manufacturer of the good must be traced and necessarily made a party along with him. Counsel could not draw our attention to any provisions which expressly mandated such a procedure in the Consumer Protection Act nor any precedent could be cited in support of his stand for holding that a complaint can not be proceeded against the seller alone. We can not accept the contention of learned counsel for Opposite Party on this point because a registered dealer is always supposed to act as an agent of the manufacturer. When a merchantile transaction takes place between a seller and a buyer, it is obligatory on the part of the seller to supply the articles goods without any defect and in case any defect is so brought to its notice by the customer, which is legitimately and legally required to be rectified, it is the first obligation on the part of the dealer to take up the matter himself and satisfy the customer with regard to service and in case of any deficiency, the dealer is primarily held responsible for this. In the present case since the manufactures is not made as a party and it is too much to expect from a customer that after purchase of the mobile from the dealer for any repair/replacement etc one should be asked to run to manufacturer and send notice to manufacture to made as party who reside in a foreign country. A part from this, the Consumer Protection Act is a beneficent statute enacted for the better promotion of the interests of the consumers. It is not to be shackled with the technicalities of Civil Procedure. The higher technicalities of who is a necessary, proper or possible party are not things easily interacted in to the proceedings under this Act. The concept of the dismissal of the Complaint because of a non-jonder of party against the spirit to this beneficent Act. We therefore conclude that in the instant case the original manufacturer is need not be a necessary party against the dealer for the supply of defective goods. The submission of the learned counsel for the Opposite Party in this regard therefore is here by rejected and all the points are answered accordingly in favour of the Complainant.
-: O R D E R :-
The Opposite Party is directed to compensate the Complainant either with a new mobile set of same model Nokia C2-02 or pay the original purchase price of the mobile set i.e. Rs.4000/- (Rupees four thousand)only along with compensation of Rs.2000/-(Rupees two thousand)only towards litigation cost and sufferings to the complainant within one months from date of order, failing which interest @12%(Twelve percent) per annum will be charged on the awarded amount till final realization of the award.
Complainant is directed to deposit the defective Nokia C2-02 mobile phone to Opposite Party with proper receipt and acknowledgment at the time of receiving the mobile set and monetary compensation.
The Case is disposed off accordingly.
Typed to my dictation
and corrected by me.
(Miss Rajlaxmi Pattnayak)
P r e s i d e n t.
I agree, I agree,
( Smt. Anjali Behera ) (Sri Pradeep Kumar Dash)
M e m b e r. M e m b e r.
