Orissa

Rayagada

CC/179/2016

P. Bijaya Kumar Patra - Complainant(s)

Versus

Biswanath Senapati - Opp.Party(s)

Self

23 Jul 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 179 / 2016.                                       Date.    23   .    7   . 2018.

P R E S E N T .                

Dr. Aswini  Kumar Mohapatra,                                      President

Sri  Gadadhara Sahu,                                                        Member.

Smt.Padmalaya Mishra,.                                                 Member

 

Sri P.Bijaya Kumar Patra,  S/O : Late P.Sriranga Patra, At/Po: Bissamcuttack,  Dist: Rayagada, State:  Odisha.                                                                                           …….Complainant

Vrs.

1. The Manager, Biswanath Senapati,  Proprietor,  Sonu Enterprises, Ramanaguda, Dist: Rayagada.
2. The Propritor, Vijaya Sales Corporation,  Berhampur, Dist: Rayagada.
3. Sri Rajesh Gupta, Propritor, MTEK Power D-7, Udyog Nagar, New Delhi-110041.

                                                                           …  Opposite Parties.

For the Complainant:- Sri Sitaram Panda, Advocate, Rayagada.

For the O.P No.1 & 2 :- Set exparte.

For the O.P  No. 3 :- In person.

JUDGEMENT

The  present disputes emerges out of the grievance raised in the  complaint petition filed by the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for  non replacement of  Battery  which was found  defective   during warranty period.

         On being noticed the O.Ps No.1  & 2 neither entering in to appear before the forum nor filed their  written version though availing  of more than  15  adjournments. Complainant consequently filed his memo and prayed to set exparte of the O.Ps No. 1 & 2.  Observing lapses of around two years  for which the objectives  of the legislature of the C.P. Act going to be destroyed to the prejudice of the interest of the complainant.  Hence after hearing from  the   complainant set the case  exparte against the O.Ps No.1 & 2 . The action of the O.Ps No.1 & 2  are against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.Ps  No.1 & 2  were  set exparte  as the statutory period  for filing of  written version was over to close the case with in the time frame permitted by the C.P. Act.     

On being noticed the O.P No.3 appeared in person  and filed written version refuting allegation made against them.  The O.P No.3  taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.P No.3. Hence the O.P No.3   prays the forum to dismiss the case against  them  to meet the ends of justice.

  Heard arguments from the O.P  No.3  and from the learned counsel for the  complainant.    Perused the record, documents, written version  filed by the parties. 

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.

                                                         FINDINGS.

        From the records it reveals that, there is no dispute that the  complainant had purchased an Inverter along with Battery of MTEK Company bearing Model  No. 48 MTT 3050 inter alia  Sl. No. GQWB031501152315 from the O.P. No.1     by paying a sum of Rs. 13,500/-  with Sales retail Invoice   Bill  No. 462 dt. 20.01.2014 with  30 months  warranty (Copies of the  bill is in the file marked as Annexure-I).  But unfortunately after  some  months  of its purchase  the above  set found defective and not functioning  from  Dt. 12.4.2016  and handed over the same to the O.P. No.1  for replacement. The repair battery  was  handed over to the complainant by the  O.Ps on Dt. 5.5.2016.  Inspite of repair the above battery did  not  given  back up. So the complainant prays the O.Ps for replacement of the said battery.  Even after approaching   the  O.Ps  they could  not  replaced the above  battery. Hence this C.C. case.

            The O.P. No.3  in their written version para No.2 clearly mentioned  between  o to 30 months   free repair or replacement subject to conditions mentioned in warranty period.

            In the present case in hand it is revealed that  the above battery  was found defective  on Dt. 12.4.2016 . But the O.Ps did not  made   perfect running condition in spite of  repair of the same  by the O.Ps  within  warranty period.

            The O.P. No.3  in their written version para No.3  contended that  this forum  have  no jurisdiction to adjudicate the present complaint as in accordance  to one of the warranty condition, it was mutually decided   between the consumer  and company that disputes, if any,  related to battery sale, performance and any other purpose  related to battery will be subject to the jurisdiction of the Delhi  Court only. Therefore, the present complaint is liable to be dismissed on account of lack of jurisdiction. As per Section-3  of the C.P. Act, the provisions of this Act, shall be in addition to and not in derogation of the provisions of any other law for the time being in force”. Hence, this  forum can entertain the complaint.

 

            The O.P. No.3   vehemently argued that the present complaint is not maintainable  before the forum. We are of the opinion that the case  is relating to defective goods  which is covered under section 2(i)(f) of the C.P. Act. The C.P. Act  which provides that  “Defective means any fault, in imperfection or shortcoming in the quality, quantity, potency, purity are standard which is required to be maintained by or under any law for the time being in force”.   After amendment made by  the C.P. Act   of 2002 wherein it  is made clear that when a complainant  is using the product of the O.P.No.3  purchased from the  O.P.No.1 & 2  he is also coming within the definition of consumer and the service provided  or attached to the said  goods in the shape of warranty or guarantee is also available to the users.

On perusal of the record  it is revealed that  the fact of the  purchase  of  Battery    is not denied by the  O.Ps.  It is admitted position the complainant having  purchased   above goods for  consideration  having the warrantee for replacement   is  entitled  to him.

It is admitted position of law that when   a  goods sold  by the  manufacturer has under gone  servicing   and even such  servicing  the same defects  persist  it   is deemed  to be a  manufacturing defect.   Hence the complainant is entitled to thoroughly  check up  of the above set   and   to  remove   the defects  of   the above set  with fresh warrantee .

It is held and reported  in  CPJ 2005 (2) page No.781 the Hon’ble State  Commission , Chandigarh observed  the dealer is the person who in the market comes in direct contact with the consumer and he assures about the quality   of goods sold and in case  the consumer  had problem with the above  set, the dealer was under an obligation to refer the matter  to the manufacturer for necessary  relief, which  in the  instant case was done.

Coming to the merits of the case the complainant had purchased the Battery   from the O.P No. 1   on payment of consideration  an amount of Rs. 13,500/- on Dt. 20.01.2014 (copies of the  retail  invoice) marked as Annexure-I.  On perusal of the record we observed  the complainant  after using  some months for rectification of defects on Dt. 12.4.2016 and   handed over the same to the O.P. No.1  but till  date the  O.Ps  have  not rectified the above set perfectly running condition.  On perusal of the record we observed that  the complainant made several complaints with the O.Ps pointing out the defects  which goes on to show that  right from  the very beginning  the above set was not performing  well and continued  repeatedly to develop defects  resulting  in  non-performance which was intimated by the complainant.   Further we observed that  on repeated complaints made  by the complainant to the O.Ps neither the defects have been removed nor replaced  with a new  set. We observed  inspite of  required  services made  with in the  warranty  period  the above set could not be rectified.  We  hold   at this stage if the above set required frequent servicing then it can be presumed that it has a manufacturing defect. If a defective set  is supplied a consumer he  is entitled to get refund of the price of the  set or to replaced  with a new set and also the consumer concerned is entitled  and has a right to claim compensation and cost to meet the mental agony. In the instant case as it appears that the  above  set which was purchased by the complainant  had developed  defects and the O.Ps were unable to restore its normal functioning during the warranty period.

             It appears that the complainant invested a substantial amount and purchased the above  set with an expectation to have the effective benefit of use of the mobile set. In this case the complainant was deprived of getting beneficial use   of the set and deprived of using the above set for such a long time and the defects were not removed by the O.Ps who could know the defects from time to time from the complainant. In the instant case the O.P No.3  is  liable. 

In view of the above discussion relating to the above case and  In Res-IPSA-Loquiture  as well as  in the light of the settled legal position  discussed  as above referring citations the plea of the  O.Ps to avoid the claim  which is  Aliane Juris.  Hence  we allow the above complaint petition  in part.

Hence  to  meet the  ends of justice, the following order is passed.      

                                                                        O R D E R

            In  resultant the complaint petition  is allowed  on contest against the O.Ps.

The O.P. No. 3   is directed to return back the defective product from the complainant  inter alia  replace the Battery  with a new one with fresh warranty without charging any extra amount.    The  O.P. No.3  is further   directed to pay Rs.1,000/- to the complainant towards cost of litigation.  

            The O.P. No.1 & 2   are  ordered to refer the matter to the O.P. No.3  for early compliance.

            The entire directions shall be carried out with in 45 days from the  date of receipt   of this order.   Copies be served to the parties  free of cost.

Dictated and corrected by me.

                Pronounced in the open forum on      23th.           day  of    july, 2018.

 

MEMBER                                               MEMBER                                                                                              PRESIDENT