This is an application under Section 12 of C.P. Act, 1986 filed by one Sri Balaram Roy against the opposite parties for repair of mobile hand set or refund, of Rs-4499/- plus interest, compensation of Rs.30,000/- for unfair trade-practice, mental pain, agony, harassment & litigation cost.
The brief fact of the case is that, the complainant had purchased one mobile handset, from the OP-1 by using the electronic platform of OP-3. The mobile phone was manufactured by OP-4. OP-3 and 4 also support this through their version, Evidence and B.N.A. After purchasing the mobile phone by the complainant, the alleged mobile phone was continuously giving disturbance. After 27 days of purchase, the complainant went to the customer care centre of OP-4, which was situated in Jalpaiguri, Beguntary. Thereafter the complainant repaired, the mobile phone in the same customer care centre on several occasions. On dated 27/12/2018, when the complainant visited the customer care centre at Jalpaiguri, he found that the shop was closed. Then the complainant rush to the OP-2 shop, at Mayanagari. OP-2 is directly not a service centre rather a third party service provider. Till date the mobile phone is lying with the custody of the OP-2. Due to such activities of the O.Ps the Complainant has been suffering from mental pain & agony, harassment and financial loss and file the case in this forum.
The documents filed by the Complainant are as follows:
Annex 1: (1) Photographs of Invoice.
Annex 2: (2) Catch cover of the Mobile phone packed by the O.p- 4.
Annex 3 : (3) Job card.
Summon upon the O.P. No.1 was duly served but the O.P. No.1 did not turn up to contest this case. Accordingly, the case was heard ex-parte against the O.P. No.1.
OP - 2 contested the matter,by filing W.V, Evidence on affidavit,and also took part in the hearing of argument by filing B.N.A. According to the written version of OP-2 the complainant handed over his alleged mobile phone to OP-2 for repair after several times of repair in the service centre of Beguntary,Jalpaiguri. OP-2 received the “TECHNICALLY DEAD” mobile phone, from the complainant and sent it to a third party repairer, who is not a party in this case. On dated 27/12/2018 the complainant deposited his technically dead mobile phone, to the OP-2 and on 06/06/2019 complainant, filed a complaint in this forum by making OP-2 as a party.After receiving a new mobile handset from the third party repairer, on several occasion OP-2 try to give the new mobile phone handset to the compliment, through this forum. But, the compliment refused to receive the same as he has already purchased another mobile phone for his use.
Opposite party number 3, Naaptol Online Shopping Pvt.Ltd., is a platform which is used by the op number 1, for sale of their products. OP-3 contested the matter, by filing WV, Evidence on affidavit,and also took part in the hearing of argument by filing BNA. They also denied all the allegation made by the complainant against them. Their version, was that they are only working as an online platform for various sellers & brands. No Consumer and seller relationship arose between the complainant and them.
Opposite party number 4 is the manufacturer, whereas, the opposite party number 1 purchased the mobile phone for selling.OP-4 also contested the matter by filing WV, Evidence on affidavit,and also took part in the hearing of argument by filing BNA. They also denied all the allegation made by the complainant against them. But, they were/are ready to replace the defective product.
POINTS FOR CONSIDERATION
- Is the Complainant a Consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986?
- Has this Forum jurisdiction to entertain the instant complaint?
- Have the Opposite Parties any deficiency in service and are they liable in any way?
- Whether the Complainant is entitled to get relief/reliefs as prayed for?
DECISION WITH REASONS
Point No.1.
The Complainant purchased the I-Kall mobile set, through O.P-1, Chirag Appliances Pvt.Ltd vide Invoice No. 848150S000172819, from his present address i.e. within the jurisdiction of this commission. The said mobile set was found defective within six months from its purchase and for that reason he visited the local service centre.The Complainant purchased the mobile set for his own use. As such he is a consumer as per Section 2(1)(d)(ii) of the C.P. Act, 1986. Thus, this point is decided in favour of the Complainant.
Point No.2.
The Complainant purchased, the alleged mobile set through Naaptol Online Shoping Pvt.Ltd.,vide proper Invoice. The office of the OP-2 is situated within the jurisdiction of this Forum. The Complainant is also, ordinarily, the resident of Jalpaiguri District. The claim amount of the Complainant is below Rs.20,00,000/-. Hence, this Forum has territorial as well as pecuniary jurisdiction to try this case. This point is disposed of accordingly.
Point No.3&4
In this case the interrelation between the opposite party number 1,3 and 4 is established, but the relation between OP-2 with the other OPs in this case are not established. Complainant purchased the mobile phone from the OP-1. The purchased amount was distributed between O.p number 1,3 and 4. There was no monitory transaction between the complainant and the OP-2. OP-2 rendered the service to the complainant, free of cost. Complainant purchased the mobile phone from OP-1. OP-1 purchase the mobile phone from OP-4. OP-1 sold, the mobile phone by using the window or platform of OP-3 This interrelation between the seller manufacturer and the supplier is established in this case. Section 2(1)(f) in the Consumer Protection Act, 1986 clearly describe the meaning of “trader” in relation to any goods means a person who sells or distributes any goods for sale and includes the manufacturer thereof, and where such goods are sold or distributed in package form, includes the packer thereof;
“manufacturer” means a person who—
(i) makes or manufactures any goods or parts thereof; or
(ii) does not make or manufacture any goods but assembles parts thereof made or manufactured by others; or
(iii) puts or causes to be put his own mark on any goods made or manufactured by any other manufacturer;] OP number 1,3,4 cannot refuse their responsibility in this case.
The alleged mobile phone start to giving problem within 27 days of purchase and the complainant rushed to the service centre or to the third party repairer on several occasion, within the warranty period. Section 2(1)(f) in the Consumer Protection Act, 1986 clearly describe the meaning of defects.
“defect” means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or standard which is required to be maintained by or under any law for the time being in force or 15 [under any contract, express or implied, or] as is claimed by the trader in any manner whatsoever in relation to any goods;
The Consumer Protection Act 1986 has laws surrounding a manufacturer’s and supplier’s liability for defective products. For the purpose of this Act, a supplier of services who applies, supplies, installs or provides access to any goods, will be regarded as a supplier of those goods to a consumer. If more than one person is liable to a consumer, their liability is joint and several. The Consumer Protection Act, 1986, defines Right to Information as 'the right to be informed about the quality, quantity, potency, purity, standard and price of goods so as to protect the consumer against unfair trade practices. In the law of products liability, a manufacturing defect is a defect in a product that was not intended. This kind of defect occurs when a product departs from its intended design and is more dangerous than consumers expect the product to be.
The prayer of the Complainant is to return, the total purchased amount of the disputed hand set with compensation by the O.Ps. In this juncture, it is also pertinent to mention that only being the 3rd party service provider, the O.P. No.2 has no liability to return the cost of the mobile phone . Only the manufacturer/Company or the inter related business group is liable to return, the price of the set with compensation to the Complainant. It is established from the record that the OP-2 tried to give the new mobile phone handset to the complainant, through this Commission. But, the complainant, refused to receive the same, as he had already purchased another mobile phone for his use. From the date of submission of evidence on affidavit, to the date of final hearing the O.P-2, brought the new mobile phone in this commission, but the complainant refused to take it.
Be that as it may, the foregoing discussion, circumstances to the case, together with the attitude and thoughts of the parties in litigation we have reason to believe that the mobile hand set is defective and the O.P number 1,3 and 4 is liable to sort out the problem. In the light of the foregoing discussion we are of the considered view, that only refund of the cost of the mobile hand set will meet the justice, as and when it is already decided in a case reported in 2009 CTJ 180 (CP) (SCDRC) that- in a dispute of a defective goods, the cost of such goods be refunded to end the dispute. Replacement of goods is not a solution, as such goods may not be up to the satisfaction of the consumer.
As it is already proved that the O.P number 1, 3 and 4 have deficiency in service, the Complainant is entitled to get relief with compensation against those OP’s only.
Thus, the case succeeds against the O.P-1,3 and 4. .
Hence,
it is,
ORDERED
that the complaint is allowed Ex-parte against the O.P. No. 1 and on contest against OP-3 and 4 with cost of Rs.2,000/- each of the opposite party and dismissed on contest against O.P. No. 2. The O.P. No. 1 is directed to refund the amount of Rs. 4,999/-, as cost of the said Mobile Hand Set .The Opposite Party No. 1,3 and 4 is hereby directed to pay Rs.3000/- each to the complainant as litigation cost. OP-2 is directed to hand over the new mobile hand set to the O.P-1. The Opposite Party No. 1,3 and 4 is hereby directed to comply with the order within 30 days.In default of payment of the awarded amount within the stipulated period as stated above, the petitioner would be at liberty to execute the same as per law.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
