Orissa

Rayagada

CC/263/2015

M.Bhargav Kumar - Complainant(s)

Versus

D. Divakar, Newgen Technology, Rayagada - Opp.Party(s)

S.R. Kumar

04 Nov 2015

ORDER

DISTRICT   CONSUMER  DISPUTES  REDRESSAL FORUM, RAYAGADA,

 

C.C. Case No.263/ 2015.

P R E S E N T .

Sri Pradeep Kumar Dash, LL.B                                     President

                    And

Smt.Ch.Nirmala Kumari Raju,LL.B                                  Member

            M.Bhargav Kumar,S/o Sri M.Mutyala Rao, Resident of Mahaviar      Lane,   (Pujariput) Koaraput, Po/Ps Dist. Koraput, Odisha.

                                                                                                            …………..Complainant

                                    Vrs.

 

1. Sri D.Divakar, Managiang Partner, Newgen Technologies, New Colony,1^st Lane,At/Po/Dist.Rayagada.

 

 

2. Sony  Mobile Communication (India) Pvt. Ltd.,A-31,2^nd Floor,Mohan Co-operative Industrial Estate, Mathura Road, New Delhi-110044.

                                                                                                            ………….Opp.Parties

Counsel for the parties:

For the Complainant:  Sri S.Ramesh Kumar,Advocate,aRayagada.

For the  O.Ps: Sri S.S.Mishra,  Advocate, Jeypore.

                                                            JUDGMENT

                        The facts of the complaint  is that  the complainant  has purchased a Sony Xperia M2 Mobile Set from the Opp.Party No.1  on  dt.12/05/2014with one year warrant  but after few days of its purchase the set  found defective  which is  a inherent manufacturing defect  for which the complainant  informed the O.p 1  and  the O.p 1  sent the same to the Sony Service center for removal of the defects.  After use of the repair set again the defect arose in the set for which the complainant again knocked the services of the O.p 1 but the O.p 1 failed to remove the defects and even  refused to replace the same  .The complainant finding no other option prays before this forum  to direct the O.ps to  give a new  set or refund the cost of mobile set Rs.20,150/-    and  award compensation of Rs.20,000/-   along with cost  for litigation . Hence this complaint.

                        On being notice, the Opp.Partie No.2  appeared through  their advocate Sri S.S.Mishra and files written version denying the allegations on all its material particulars . The O.p No.1 neither appeared nor filed written version, as such the O.p 1 was set exparte.

                         It is submitted  by the O.P 2 that the complainant  has purchased a Sony Xperia M2 on 12.05.14  from O.p 1  and the O.p 2 provides  warranty of one year on its products from the time of its original purchase  and  the liability strictly lies in accordance with the terms and conditions of the warranty provided by it  and cannot be held liable for the claims falling outside the scope of warranty. The handset was received by the Authorised Service Centre of Opposite Party No.2 on 13.08.14 with the issue of Display not proper  and the service engineer of the  O.P 2 after thorough inspection of the handset and keeping the handset under observation found that the handset has no issue at all and the same was  delivered to the O.p 1 on 5.09.14. Thereafter the complainant never approached the Opposite Party and filed the consumer complaint  with the malafide intention to earn wrongfully from the opposite party. There was no manufacturing  defect in the mobile  as alleged or there has been any deficiency in services on the part of the opposite party or unfair trade practice . The instant case is false, malicious, vexatious and incorrect and is nothing but an abuse of the process of law  and the complaint is filed just to avail undue advantage  and to earn wrongful gains   and thus the complaint is liable to be dismissed.                     On the basis of the pleadings, the following  points  are  need to be answered  for determination  of this case.

(i)         Whether the mobile set  is having  any   manufacturing defect ?

(ii)        Whether there is any deficiency in service  on the part of the opposite parties , if            so, is he liable for compensation and to what extent ?

 Point No.1

                         It is the case of the complainant that  immediately after its  purchase , the mobile hand set   found defective  and the service centre  failed to remove the defects . If the defect in the mobile set is not  a manufacturing one , the service centre could have able to remove it  and  at least within the warranty period there would be   no further defect  in the set but in the instant case, the defects could not be removed .  After repair by the service centre  the mobile set  again  defect was detected for which the complainant was not able to use it  and ultimately took the shelter of this forum.       Hence, it is clear that  the defects in the mobile set  was not rectified  at  the  service centre  and the set  was returned to the complainant with the existing problem and  the O.Ps  totally failed to repair the  set  as the defects in the mobile set is a manufacturing one.

                        Word ‘defect’ as defined under Section 2(1)(f) of the Consumer Protection Act 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 under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to  any goods.

                        Hence, in the Issue  No.1 is answered   in favour of complainant.

 

Point No.2

                        As the Point No.1 is answered in favour of the complainant , it is concluded  that the opposite parties are deficient in their service .Sec.2(1)(g) ‘ Deficiency in Service means  “ any fault, imperfection, shortcoming or inadequacy in the  quality , nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance  of a contract or otherwise in relation to any service”.  Since the date of purchase , the mobile set  given problem for which complainant   went to the service   centre  for repair  for two times  but the defects could not be rectified , and when the complainant went for third time the O.P Service centre refused  give any service ,which amount to deficiency in service on the part of the O.ps. Therefore, the O.Ps are liable to refund the amount of the mobile set and  also they are liable to pay compensation for mental agony   along with  cost of litigation  for filing this dispute. Accordingly, the Point No. 2 is answered  in favour of the complainant. . Hence, we  allowed the complaint   partly and  dispose of the matter with the following directions.

                                                            ORDER

                        The Opp.Party No. 1 & 2 - being the dealer &  manufacturer are  directed to refund the purchase amount of Rs.20,150/-  with 9% interest from the date of purchase i.e. 12.05.2014 to the complainant and take  back the defective set from the complainant and  pay compensation of Rs.5,000/- towards mental agony and cost of Rs.1000/- towards litigation expenses. The matter is disposed of with  the direction to the O.P. No. 1 & 2  to make the payment to the complainant within one month, failing which complainant is at liberty to file Criminal Proceeding U/s 27 of the C.P.Act,1986 for realization  of the amount.                  

                        Pronounced in the open forum today on this 5^th day of December,2015 under the seal and signature of this forum.

                        A copy of this order  as per the statutory requirements, be forwarded to the parities free of charge.

 

Member                                                                                               President

Documents relief  upon;

For the complainant:

1. Copy of advocate notice
2. Copy of Bill No.2323 dt.12.5.14
3. Copy of Warranty card
4. Copy of Regd. Post receipt
5. Copy of A.D

 

For the Opp.Parties: Nil

 

                                                                                                            President