Orissa

Rayagada

CC/29/2017

Kishor Panigrahi - Complainant(s)

Versus

Bright Infocom Lenovo & Motorala Mobile Service - Opp.Party(s)

Sri Ganga Dhar Padhi

29 Nov 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

                                      PO/DIST; RAYAGADA,   STATE:  ODISHA ,Pin No. 765001

C.C. Case  No.   29 / 2017.                             Date.    29        11   . 2018.

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                                                   President

Sri GadadharaSahu,                                                                        Member.

Smt.Padmalaya  Mishra,.                                                              Member

 

Sri Kishore Panigrahi, S/O: Late  Rama Krishna Panigrahi, At:Goutam Nagar,  Po/  Dist:    Rayagada, State:  Odisha.                                                                                …….Complainant

Vrs.

1.The   Manager, Bright Infocom Lenove & Motorla Mobile  service centre, Door No. 10-50-11/1, Ist. floor, Near care hospital, Nehru Nagar, Ram Nagar, Visakahapatnam(AP).

2.The Manager, Cornor point (mobile sales & service), Plot No.256, Bapuji  Nagar, Bhubaneswr.

3.The Manager,  Lenovo   India Pvt. Ltd., Ferns Icon, Level-2, Doddenakundi  Village, Marathahalli Outer Ring Road, K.R. Puram Habli, Bangalore, 560037, Karnataka(India).                                                                           .…..Opp.Parties

Counsel for the parties:                                 

For the complainant: - Sri Gangadhar Padhy, Advocate, Rayagada

For the O.P No.1  :- Set exparte.

For the O.P. No.2:- Sri Nihar Kanta Patra, Advocate,

For the O.P.No.3:- Sri Braja Sundar Nayak, Advocate, Rayagada.

                                                JUDGEMENT.

The  curx of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for  non refund of price of the mobile set a sum of Rs.11,500/- towards found defective during warranty period     for which  the complainant  sought for redressal of the grievances raised by the complainant.

Upon  Notice, the O.P No.  1  neither entering in to appear before the forum nor filed their  written version inspite of more than  10 adjournments has been given  to them. Substitute  L.R. of complainant consequently filed his memo and prayer to set exparte of the O.P No. 1 .  Observing lapses of around 1 year  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  the  counsel for the complainant set the case  exparte against the O.Ps 1. The action of the O.P No. 1  are against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.P No.  1  was 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.

Upon  Notice, the O.P No.2 & 3   put in their appearance and filed  written version through their learned counsel in which  they refuting allegation made against them.  The O.P No.2 & 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.2  & 3 .   Hence the O.P  No.2 & 3 prays the forum to dismiss the case against  them  to meet the ends of justice.

Heard arguments from the learned counsel for the    O.P No. 2 & 3    and from 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.

                Undisputedly the complainant had  purchased  the Lenovo brand namely    model No. K 50a40 (T) bearing IMEI No. 869071025846594  and  869071025846602 on payment of consideration   a sum   for Rs.11,500/- to the  O.P. No.1 (copies of the  Retail invoice No. 14616 Dt.13.04.2016  is in the file which is marked as Annexure-I).

                The main grievance of the complainant  is that   the above set is giving  various problems  such as  programmes (APPS) in built and download  are not working  well and having  battery, Camera  problem inter alia   said  set is not at all in working condition  totally damaged. The  complainant  in their petition  mentioned that  he had   complained   to the  O.P. No.1`(Service centre of the O.P. No.3)  inter alia  handed over the same to the service centre for   running  perfect condition.    Inspite of repairing the set  it is not at all in working  condition. So the  complainant  had requested    the O.P. No.1   to replace or refund purchase  price of the above set but the O.P. No.1     turned deaf ear. Hence this C.C. case.

                The O.P. No.3 in their written version contended that  the complainant was logged with the Authorised    Service  provider i.e. O.P. No.1   on Dt.  10.2.2017  for the issue of Ringer/speaker phone and charging  of battery    issue   and the same  was duly looked in to by the engineer of the O.P. 1  and found that there was liquid logged in the Charging   Section and Ringing section of the smart phone of the complainant which caused  damage and was identified as ‘Customer Induced Damage, physical  damage and   hence not  covered under the statement of Lenovo limited warranty for providing  Free cost of service.   The complainant was  duly informed that no warranty claim would be entertained as the warranty terms explicity   states that   damage  resulting from misuse or improper maintenance   are not  covered  under the warranty.  However, it was informed to the complainant  the service  is assured on chargeable  payable basis  which was not accepted by the complainant and hence the engineer  of the authorized  service provider  was constrained to  return  the  above phone   without repair on Dt. 13.2.2017.   It is submitted that indisputably the warranty document part-I, specifically provides the contingencies which the “Warranty does not cover”. It provides that in  event of failure or damage resulting from misuse, abuse, accident, modification, unsuitable physical  or operating environment, natural  disaster, power  surges, improper maintenance, or use not in accordance  with the product information materials. The service  under warranty can not be extended to the smart phone in question which prima-facie was found to be  damaged  condition and its repair/replacement was rightly denied by the    Service centre for “Free of Cost” for repair under warranty. However, the service centre of the authorized service provider  of Lenovo was  willing to provide  the required  services on chargeable basis which  was denied  availing the services on chargeable    which was denied availing the services on chargeable  by the complainant for the reasons best known to him.

                The O.P. No.3 contended that   the O.Ps registered office is located t Bangalore, Karnataka and the O.Ps registered office  is located  at Bangalore, Karnataka State and the O.P.No.1  are located at Visakhaptanam and O.P. No.2 is located at Bhubaneswar. Hence the case is per se not maintainable  and liable to be dismissed on this ground.

As per Sec.11(2) of the Consumer Protection Act “ A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,-

1.             The opposite party or each of the opposite parties, where there are           more    than     one, at the time of the institution of the complaint,          actually           and      voluntarily       resides or carries on business or has a   branch             office or           personally works for gain       ,or
2.             Any of the opposite parties, where there are more than one, at the time    of the institution of the complaint, actually and voluntarily resides         or carries on business or has a branch office, or personally works         for        gain, provided that in such case either the permission of the             District Forum is given, or the opposite parties who do        not reside or    carry on business or have a branch office   or personally   work    for        gain, as the case may be, acquiesce in  such institution; or
3.             The cause of action, wholly or in part, arises”.

                       

 

It is  submitted by the O.P No.3  in  its written version contended  that  the O.P. No.1  as well as O.P. No.2  & 3  are not having any shops/ office  at Rayagada district  as such the complaint is not at all maintainable before this forum. But no where they have stated that they are not doing any business in the district of  Rayagada  for their gain.   It is well known  to all that the Lenovo   Company  is doing their business for gain all over  India. Hence, in the instant case, it is clear that the opposite parties  at the time of the institution of the complaint voluntarily carries on business  at Rayagada though there is no branch office  and personally works for gain  and  the  deflects in the mobile set  also pointed  out  at Rayagada , hence the cause of action partly arose in the district of Rayagada. Hence, this Forum has territorial jurisdiction to  entertain the present complaint.

 

In this connection  it is held and reported  in   CLT- volume – 81  ( 1996 ) Page No. 34  the hon’ble State C.D.R.Commission, Cuttack  where in  observed   “Complainant of Kendrapada purchased picture tube from the O.P. at Cuttack- picture tube did not function properly at Kendrapada- held –Kendrapara   Dist. Consume Forum has territorial jurisdiction and complaint maintainable.   After careful consideration  of all the  facts  Section – 11(2)© of the C.P.Act the petition of the O.P No.  3  regarding territorial  jurisdiction is  dismissed.        

 

Further the  O.P. No.3 in their written version contended that the complaint  is not maintainable

Admittedly the  purchase of the mobile hand set   by the complainant is not denied.  The O.Ps have given an undertaking in the warranty card  that they are  ready to  give the free  service as per the conditions of the warranty given to the said  set.  The complainant submitted that  as  per the  warranty condition  he approached  from pillar to post but the complainant has   not get any  fruitful  result  till  date from any   the  O.Ps.

It is well settled principle of law that  no consumer will make any such complaint if there is no such deficiency. Hence the action of the O.Ps for not giving the required service  to the complainant is a deficiency in service  on the part of the O.Ps.

The main question  before  us is that, whether the  O.Ps   substantiated the allegation with  sufficient materials and documentary  prove or it is a vague allegation  to avoid the repair.

In view of the allegation of the complainant the O.Ps Service centre  did not attend to repair of   the  above set  inspite  of several request by the complainant . it is  the duty of the O.Ps to repudiate the allegation with reliable documentary evidence. The O.Ps did not produce any  srap  of paper  to establish that the mechanic   or technician  of the O.P. on DT. 13.2.2017 had  informed the  complainant  that service is assured on chargeable basis which was not accepted by the  complainant.   It is   the duty of the O.Ps  to obtain the signature  of  complainant or any  paper available  during check and repair.  In the check report prepared   by the    technician or mechanic of the O.Ps.  it is also proper procedure to obtain  a certificate  satisfaction  from the complainant  after checking of the  above set.

But the O.Ps had not filed any such document to established that the mechanic has attended  to repair the above set so the  stand  taken by  the O.P. No.3  is very  hard to believe.   The complainant  as a consumer had every right to got proper and prompt service from the O.Ps. In our opinion the O.Ps. should  have immediate  repaired the above set  and then should have   submitted a bill to the  consumer  since the  Ist.  Priority  of the  complaint is to get the benefit of the   mobile set    which he had purchased by paying a lot  of  money.

So in absence of any   material to believe the plea  of the  O.P. No.3  we are of the  considerable opinion that the O.P. No.3  is deficient  in providing service in time.

Further the estimate  towards  the cost of the  damaged     is very high and not supported by any  approved  price list.

The  above set  had been purchased by the complainant on Dt. 13.4.2016  and have  1(one) years warranty and becomes non function able with  in  one year of the purchase.

For better appreciation this forum relied citation which  is mentioned below.

   It is held and reported in CPR- 2009 (2) Page No. 42  where in  the Himachal Pradesh  State Commission  observed “ we may mention here that it is by now well settled that the C.P. Act, 1986 is a welfare  legislation  meant to give  speedy  in expensive and timely justice to the parties. Similarly it is also well know that where  two views are possible, one favourable to the consumer needs to be followed.”

 

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.                                                                                                      

ORDER.

            In  resultant the complaint petition  stands allowed  in part  against the O.Ps.

                The O.P  No.. 3 (Manufacturer) is  directed to return back the defective product from the complainant  by paying the price of the  above mobile set  a sum of Rs. 11,500/- besides to pay an amount of Rs.1,000/- towards cost of  litigation.

          The O.Ps 1 & 2  are directed to refer the matter to the O.P No. 3  for early compliance  of the above order.

 

The OPs     ordered to make compliance the aforesaid Order within  45 days from the  date of  receipt  of this order      .

   Serve the copies of above order to the parties free of cost.

 

Dictated and corrected by me

Pronounced on this      29^th.   Day of   November,   2018.

 

 Member.                                                            Member.                                                             President