Counsel for the parties:
For the complainant: Self
For the O.P1: Not appeared
For the O.P.2 & 3: Sri Sailesh Kumar Behera,Advocate,Bhawanipatna.
JUDGMENT
- This Complaint is presented by the complainant named above alleging manufacturing defect in the product /mobile hand set purchased from the OP No.1 and further he has alleged unfair trade practice & deficiency in rendering service on the part of OPs as the OPs have failed to repair the defect arose during the period of warranty.
- The complainant has prayed for the following relief:-
(i)The Opposite party may be directed to refund the sale price of Rs.13,990/- of the product with interest,(ii) Compensation to the tune of Rws.1,00,000/- on account of mental agony, harassment and emotional distress suffered by the complainant due to the negligent and unprofessional conduct & working of the officials of the opposite party,(iii)any other relief which this Commission deeds just and proper.
3. The facts of the complaint in brief is that:- on dt.29.11.2020 ,the complainant has purchased one OPPO mobile hand set vide Model No.A52(6GB) ,IMEI/SN-862719046691392 from the O.P. No.1 for a consideration price of Rs.13,990/- with warranty period of one year. It is alleged that, in the course of time the said handset mobile automatically came switch off and did not function at all for which the complainant approached to the OPPO Care Centre at Bhawanipatna for repairing of the defects arose before the warranty period. He received back the said mobile handset after five days i.e. on 29.11.2021 but it did not function properly. On the very same day the complainant went to the local Care Centre with the same problem but they were unable to repair it for which the said product was sent to Bhubaneswar for repairing .Then, after 13(thirteen) days, the OPs Company sent a message to the complainant to collect the said mobile handset from the local service centre but found it not functioning. This time the complainant approached the OPPO Corporate Office, Delhi but the Head Office of the OPs did not respond for which the complainant suffered a lot in earning of his livelihood as the complainant could not go to his work field. It is further alleged that, there is negligence & deficiency in service on the part of ops as they failed to provide proper service to the complainant for which the Ops are liable to refund the price of mobile set with interest and also liable to compensate to the complainant for harassment & mental agony suffered. Hence, this complaint.
4. On being notice, the Opposite Party No.1 neither appeared nor filed their written version. The OP No 2 & 3 appeared and filed their written version after stipulated period of time as prescribed under C.P.Act, 2019 as such it is not considered in view of order dt.4.3.2020 of the Apex Court passed in New India Assurance Co. Ltd. Vrs. Hilli Multi Purpose Cold Storage Pvt.Ltd. However, we have given opportunity to the Ops to take part in the further proceeding of the case without written version. Accordingly the Ld.Counsel for the Op 2 & 3 filed their notes of argument which we have perused for proper adjudication of this complaint.
5. To substantiate his claim the complainant has filed the invoice vide No.1802 dt.29.11.2020 issued by City Communication, Bhawanipatna/OP 1 towards purchase of the alleged mobile set i.e. OPPO A52 for an amount of Rs.13,990/- and a job card dt.27.11.2021 preparing for repairing of the alleged Mobile handset . The averment of the complaint petition is supported by an affidavit of the complainant. No evidence is adduced by the Ops.
6. The Ld. Counsel for the OP 2 & 3 argued that, fault in the product was occurred due to misuse of the handset by the complainant and the alleged defect was raised after period of warranty. It is further argued that, even after the period of warranty, the service station of Ops have provided their free service to the complainant on 27.11.2021 and on 13.12.2021 to the satisfaction of the complainant and that the complainant has accepted the repaired mobile set with working condition without any remark in the job card rather to his full satisfaction as such there is no negligence or deficient service on the part of the Ops. We have our thoughtful consideration on the argument of the Learned Counsel for the OP 2 & 3 but we are unable to accept it in absence of any specific pleadings or evidence in this regard since written version filed beyond the stipulated time period has not been accepted . By way of affidavit the complainant has proved all his contention.
7. Here the doctrine of non –traverse will rightly applicable as non of the allegation made by the complainant are ever disputed or traversed by the O.P in any manner .The opposite party have neither disputed nor have produce any evidence contrary to the averment of the complainant which in terms is a clear admission of facts of the complaint and the same need not proved as per Sec 58 of Indian evidence Act. Law is well settled that every allegation of facts in the complaint if not denied specifically or by necessary implication , or stated to be admitted in the pleading of the O.P shall be taken to be admitted accept as against a person disability . Where the O.p has not filed a pleading it shall be law full for the court to pronounced judgment on the basic of the fact contend in the plaint except as against the person under a disability (Reliance placed upon the judgment of the Hon’ble Supreme Court passed in M.Venkataramana Hebbar Vs M. Rajagopal Hebbar & Others, Lohia Properties (P) Ltd Vs. Atmaram Kumar).
8. After careful perusal of the case record, this Commission finds that the OPPO A52 Mobile hand set purchased from the Op.1 found defective within a period of warranty for which the complainant approached the Opposite Parties for but the OPs failed to rectify the defects to restore its normal functioning for which the complainant suffered mental agony and finding no other option the complainant approached the Commission for his grievance. It is the bounden duty of the OPs to rectify the defects which arose within the warranty period but the alleged mobile handset was neither repaired nor replaced by the Ops .The complainant purchased the mobile handset for his day to day use but it found defective and as the OPs failed to rectify the defects completely which amounts to deficiency in service on the part of the Ops certainly caused sufferings to the complainant.
10. In the light of above said discussion and settled principle of law, It , therefore, stand proved that, the Opposite Party has committed “unfair trade practices” & deficient service causing injuries & harassment to the complainant .
11. The OP 2/ manufacturer of the mobile set and the OP No.1 /seller who introduced the defective product to the complainant assuring false warranty of the product for one year shall be jointly liable to replace the alleged mobile handset and to pay compensation for the financial loss & mental agony caused to the complainant due to such negligence & deficient service on the part of the OPs
12. Hence, we are of the opinion that, a new mobile handset of the same model free form defect & with fresh warranty be replaced to the complainant without charging any extra amount or in alternative refund the purchase amount of Rs.13,990/- with 9% interest from the date filling of this complaint i.e 10.11.2022 subject to production of the alleged mobile handset to the O.P No.1 and to pay cost of this litigation . In the result, this complaint is allowed in part with the following directions:-
ORDER
The Opposite Party No.1 is directed to replace the
OPPO mobile hand set vide Model No.A52(6GB) ,IMEI/SN-862719046691392V with a new one of the same model free form defects with fresh warranty to the complainant without charging any extra amount or in alternative refund the sale price of Rs.13,990/- with 9% interest from the date filling of this complaint i.e 10.11.2022 subject to production of the alleged mobile handset to the O.P No.1 and further to pay litigation cost of Rs.1000/- to the complainant on receipt of this order . After compliance of this order the Opp. Party No.1 is at liberty to reimburse the said amount from the Opp.Party No.2.
This order is to be complied within four weeks from the date of receipt of this order falling which the Opposite Party shall be liable to pay compensation of Rs. 200/- per day to the complainant till compliance of this order .
Pending application if any is also stands disposed off accordingly.
Dictated and corrected by me.
Sd/-
President
I agree.
Sd-
Member
Pronounced in open Commission today on this 15th day of March 2023 under the seal and signature of this Commission.
The judgment be uploaded forthwith in the website of the Commission and free copy of this order be supplied to the respective parties or they may download the same from the Confonet to treat the same as copy of the order received from this Commission
Sd/- Sd/-
Member President
