MR LAXMI NARAYAN PADHI, PRESIDENT… The story of the case is that, the complainant had purchased a Nokia mobile from Nokia India Pvt. Ltd., through it’s dealer on dt.18.02.2013, paying Rs. 4200/- and the set being defective, she had filed a complaint before this forum as recorded in C.C.No.94/2014. But Nokia India Pvt.Ltd., got the defective set replaced by Nokia Lumia 530 bearing IMEI No.356473065502345 on dt.05.01.2015, with a fresh warranty of 6 months from the date. But the replaced set being also on old set, soon after it also shooted troubles of battery heating, call drops, hanging etc. Hence she approached the OP.2 for repair on dt.29.01.15, dt.11.03.15 and on 07.04.15 vide his job sheet no.6115, 6234 & 6394 respectively, but the troubles in the mobile set continued, hence she aggrieved, filed this complaint against the present OP.s with prayers to allow the complaint with cost & compensation of Rs.5,000/- & Rs.10,000/- respectively. Nokia India, as the manufacturing company of the set, is taken over by the present OP.1, hence, Microsoft corporation is made OP.1, being the responsible for the liabilities.
The complainant has filed the copies of job sheet, etc, inter alia affidavit in support of her complaint.
2. The OP.s through their counsel entered appearance and filed the counter contending that, the handset had only software problems, which were resolved by the OP.s. further overheating of battery, it is due to opening of so many systems at a time and due to lack of knowledge of the operator, they further added that, the complainant is a member of this forum and on the same cause of action and against the OP parties, a complaint as in CC 94/14 has already been disposed on dt.06.01.14, as the defective set was replaced with new handset, hence the complaint is not maintainable.
3. Before we delve into detail adjudication, we first concentrate, on the facts that, the complainant is a member of this forum, hence the complaint is not maintainable, as the OP. contends.
4. On receipt of a complaint, the District Forum may either allow or reject it. But only because of a technical plea of the OP.s, the District forum cannot transfer a meritous complaint to another forum, only on application, the Hon’ble State Commission has the inherent power to transfer a complaint from one foras to another. Further, the consumer foras established and deriving it’s authority through legislated statutes, except the President, under no rule these impediments, that the members cannot file a complaint or they are not to be treated as consumers against deficiency in service by the supplies or service provider.
5. Mere presumption or possible apprehension should not be a basis for transferring a case from one forum to another or simply reject a meritous complaint filed by an aggrieved consumer, leave alone he is a member of the forum. At best so called complainant shall be precluded from adjudicating the complaint, and for no reason, the complaint adjudication by the President and at least one another member, shall be vitiated, by reason that one of the member of the two is precluded as such.
6. Sec.14 (2) of C.P.Act 1986, provides that every proceeding shall be conducted by the President and at least one member thereof sitting together, where a member for reasons, is unable to conduct a proceeding till it is completed, the President and the other member shall continue the proceeding.
7. Every President of a district forum is appointed by virtue of Sec.10 (a) of the C.P.Act 1986 who is as has been, or is qualified to be a District Judge. The President inter alia is qualified to have ability, integrity and standing, have adequate knowledge of law and experience in judicial proceedings. Casting of doubts of bias and prejudice on him, adjudicating a complaint, only became the complainant is member casts an indirect doubt on integrity or competence of presiding officer of the forum.
8. “Actus curiae neminem gravabit” a well known legal maxim which means the Court prejudices no man and the proceeding before a district forum is a judicial proceeding and the forum being a quasi judicial body performs a judicial duty, hence is a court. The Presiding Officer, shall stand remote from any prejudices, and justice should not only be done but manifestly and undoubtedly seen to be done. It is essential that presiding officer of forums to ensure to instill confidence in minds of people and command respect.
9. Hence the apprehensions of the OP of prejudices being baseless, the complaint is admitted, with instructions to the complainant member, to refrain from adjudication of the present dispute, and hearing was conducted by the President and the other member Dr Mohapatra.
10. Now, looking into the contention of the OP.s that the present lis arises of the same cause of action as in CC 94/14, disposed off by this forum. It is observed that, the dispute arising in CC 94/14 was relating to the Nokia mobile cellular phone model 305 with IMEI no. 355213059680629 which turn out to be defective, and complaint was filed. But before it’s adjudication, the OP.1, formerly Nokia India Pvt Ltd, settled the dispute, replaced the present hand set of Nokia Lumia 530, and an affidavit was taken by OP.s from complainant which was filed in CC 94/14. For closure of the dispute in CC 94/14, the parties these to had submitted, that, the claims of the complainant in relation to Nokia Cellular model 305 being IMEI no. 355213059680629 is hereby extinguished but fresh warranty of 06 months to the present handset Nokia Lumia 530 bearing IMEI no. 356473065502345, shall continue till expiry of 06 months from dt.05.01.15. The para no.4 and 5 of the affidavit executed by complainant, filed by OP, in CC 94/14 praying for disposal of the case refers to closure of liability of OP against the old Nokia 305 and revival of warranty for Nokia lumia 530 describes respectively. As the case was of a compromised disposal, and dispute in CC 94/14 was for the defects of an another handset, the present dispute being on a fresh cause of action in relation to a new handset different from the one in CC 94/14, the contention of the OP.s hereto, does not hold any water, seems frivolously made, to dissolve their liability as the cost of the interest of the complainant.
11. The OP contends that, the Nokia Lumia 530 is an android operated mobile and owing to lack of knowledge of the mobile over, gets the battery heated. On this ground also the OP fails to appraise their cause, as Nokia Lumia 530 is a window 8.1 system operated handset, and has limited appliances provided by the OP.1, the Microsoft Corporation, which restricts its operations to get the product protected from vulnerable software. And mobile operation generally does not require any specific technical knowledge except some preliminary knowledge of operation, moreover, the complainant is an user of smart phones since years.
12. With these discussions, we are brushed of any doubts, that the OP.1, have deliberately and capriciously defrauded the complainant, provided a old & defective handset to absolve their liability in CC 94/14, and present liability of providing proper service within the warranty period to the present handset Nokia Lumia 530, the defects being incorrigible and inherent, as is glared, that even though three times it went to the service center, within a period of 3 months of it’s procurement. The OP.s are deficient in service.
Hence the complaint is allowed.
O R D E R
i. The opposite parties supra are jointly & severally directed to pay a sum of Rs.10,000/- (Ten thousand) as compensation, inter alia to pay Rs.2,000/-(Two thousand) towards the cost of litigation to the complainant.
ii. All the above directions shall be complied with in 30 days of this order, failing which, the total sum will bear 12% interest per annum till its realization.
Pronounced in the open forum on this the 28th day of Nov'2015.
Sd/- Sd/-
MEMBER PRESIDENT, DCDRF,
NABARANGPUR.
