Orissa

Rayagada

CC/30/2017

Mahesh Patnaik - Complainant(s)

Versus

Gowari Camera World - Opp.Party(s)

Sri Ganga Dhar Padhi

10 Oct 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 30 / 2017.                                Date.     3   .9. 2018.

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                   President

Sri GadadharaSahu, .                               Member.

Smt.  Padmalaya  Mishra,                          Member

Sri Mahesh  Patnaik, Mahesh Studio,  New Colony,  Po/ Dist:Rayagada,State:  Odisha. 765 001.                                                                                                               …….Complainant

Vrs.

1.The Manager, Gowri Camera World, Dondaparty, Visakhapatnam, Andhra Pradesh.

2.The Manager, Micralion Compuiters, Ist. lane, Dwaraka Nagar, Visakhapatnam.

3.The Manager, Canon Indi Pvt. Ltd.,  Inpection, 3^rd. floor, Bangalore, 560042, Karnataka.                                                                                                            .…..Opp.Parties

Counsel for the parties:                         

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

For the O.P No.1 :- Sri Sanapala Karuna, Advocate,Vizag

For the O.P. No.2:- Set  Exparte.

For the O.P. No.3:-Sri S.S.K.Subudi, and Sri V.Avatar, Advocates.

                                J u d g e m e n t.

        The  present disputes arises out of the complaint petition filed by the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for non refund   a sum of  Rs.2,50,000/- towards price of the  Canon Camera  which was defective one  within warranty period.

Upon  Notice, the O.Ps No.1 & 3 put in their appearance and filed  respective written version through their learned counsels in which  they refuting allegation made against them.  The O.P No.1 & 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. 1 & 3. Hence the O.P No.  1 & 3 prays the forum to dismiss the case against  them  to meet the ends of justice.

On being noticed  the O.P  No.2   neither entering in to appear before the forum nor filed their  written version inspite of more than  12 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.P No.3.  Observing lapses of around 1 1/2 years  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  from the complainant set the case  exparte against the O.P. No.2. The action of the O.P No.2  is against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.P. No.2  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.

Heard arguments from the learned counsels for the    O.P  No. 1 & 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.

From the records it reveals that, there is no dispute that the  complainant had purchased a  Canon Digital SLR 5D mark- 111, 24-105 kit  Camera from the O.P. No.1  on payment consideration a sum of Rs.2,08,000/- bearing Invoice No. 128  Dt. 26.5.2015 with  two years warranty (copies of the Tax invoice  and warranty card  is in the file which is marked as Annexure-I & Annexure-2). But unfortunately after  some  months  of its purchase  the above  set found defective and not functioning  i.e. such as   lens of the camera was error iner alia broken  within warranty  period.  The complainant had handed over the  same camera to the O.P. No.2(Service centre of the O.P.No.3) on Dt.04.08.2016 for rectification of the same (copies of the  acknowledgement  is in the file marked as Annexue-3).  The O.P.No.3(Manufacturer) on Dt.15.12.2016  & Dt. 16.1.2017 had sent letters to the complainant mentioning   to collect the above mentioned Lens after payment of applicable repair from our collection centre located in Hyderabad under the terms and condition  mentioned on the job  sheet(copies of the letters  are  in the file marked Annexure -4  & 5).

 

                From the records it is seen that, the complainant has filed Xerox copy of purchase bill which is marked as Annexure-I.  Hence it is abundantly clear that, the complainant had purchased the above set from the O.P.

                This forum further observed  when the complainant  found defective of  the above Camera he immediately  approached the   O.P. No. 2 (Service Centre) on Dt. 04.8.2016 and  handed over the same for  rectification  (copies of the  acknowledgement  is in the file marked as Annexure- 3). The complainant  argued  during the  course of hearing that  within  warranty period the above Camera Lens  was  found defective and the O.P. No.3 charged  repair cost which is  arbitrary and whimsical. Hence this C.C. case. 

                The O.P. No.3 (Manufacturer) has contended  in their written version  that  the O.P. No.3  are sold to the customers either directly or through a network of its authorized dealers  and resellers all over the country.  It is submitted that the relationship  between the O.P. No.3 and  its dealers are on principle to principle basis.

In this context, We are of the opinion that the case  is relating to defective goods  which is covered under section 2(i)(f) of the C.P. Act. The C.P. Act  which provides that  “Defective means any fault, in imperfection or shortcoming in the quality, quantity, potency, purity are standard which is required to be maintained by or under any law for the time being in force”.                                                                  After amendment made by  the C.P. Act   of 2002 wherein it  is made clear that when a complainant  is using the product of the O.P.No. 3(Manufacturer)  purchased from the  O.P.No.1  he is also coming within the definition of consumer and the service provided  or attached to the said  goods in the shape of warranty or guarantee is also available to the users.

On perusal of the record  it is revealed that  the fact of the  purchase  of Camera set    is not denied by the  O.Ps.  It is admitted position the complainant having  purchased   above goods for  consideration  having the warrantee for replacement/refund   is  entitled  to him

It is admitted position of law that when   a  goods sold  by the  manufacturer has under gone  servicing   and even such  servicing  the same defects  persist  it   is deemed  to be a  manufacturing defect.   Hence the complainant is entitled to thoroughly  check up  of the above set   and   to  remove   the defects  of   the above set  with fresh warrantee .

Further this  forum relied citation  It is held and reported  in  CPJ 2005 (2) page No.781 the Hon’ble State  Commission , Chandigarh observed  the dealer is the person who in the market comes in direct contact with the consumer and he assures about the quality   of goods sold and in case  the consumer  had problem with the mobile handset, the dealer was under an obligation to refer the matter  to the manufacturer for necessary  relief, which  in the  instant case was done.

Coming to the merits of the case the complainant had purchased the   Canon Digital SLR 5D mark- 111, 24-105 kit  Camera from the O.P. No.1  on payment consideration a sum of Rs.2,08,000/- bearing Invoice No. 128  Dt. 26.5.2015 with  two years warranty (copies of the  retail  invoice) marked as Annexure-I.  On perusal of the record this  forum  observed  the complainant  after using  some months for rectification of defects on Dt. 04.8.2016  handed over the same to the O.P. No.2 (service centre) but till  date the  complainant had  not received the same  from the O.Ps.  So  the complainant had   purchased another Camera  set from the market.

On perusal of the record we observed that  the complainant made several complaints with the O.Ps pointing out the defects  which goes on to show that  right from  the very beginning  the above set was not performing  well and continued  repeatedly to develop defects  resulting  in  non-performance which was intimated by the complainant.   Further this forum observed that  on repeated complaints made  by the complainant to the O.Ps neither the defects have been removed nor replaced  with a new  set. We observed  inspite of  required  services made  with in the  warranty  period  the above set could not be rectified.  We  hold   at this stage if the above set required frequent servicing then it can be presumed that it has a manufacturing defect. If a defective set  is supplied a consumer he  is entitled to get refund of the price of the  set or to replaced  with a new set and also the consumer concerned is entitled  and has a right to claim compensation and cost to meet the mental agony. In the instant case as it appears that the  above  set which was purchased by the complainant which had developed  defects and the O.Ps were unable to restore its normal functioning during the warranty period free  of cost.

             It appears that the complainant invested a substantial amount and purchased the above  set with an expectation to have the effective benefit of use of the above set. In this case the complainant was deprived of getting beneficial use   of the set and deprived of using the above set for such a long time and the defects were not removed by the O.Ps who could know the defects from time to time from the complainant. In the instant case the O.P No.3 (Manufacturer)  is  liable.           

            Again the O.P. No.3 (Manufacturer) in their written version  relied citation in the case of Ramameshwari Devi  and Ors. VRs. Nirmala Devi and Ors. (Civil  Appeal Nos. 4912-4913 of 2011 decided on July, 2011) the Hon’ble Supreme Court wherein observed   that no one can  take  undue advantage by filing uncalled for and vexatious  litigation. The  Hon’ble Supreme Court  in para-41 of the above cited judgement   observed that   “We are clearly of the view that unless we ensure that wrong  doers are denied  profit  or undue benefit from the frivolous litigation, it would be difficult   to control  frivolous and uncalled for litigations. In order to curb  uncalled for an frivolous litigation, the courts have to ensure that  there  is no incentive or motive for uncalled for litigation.  It  is a matter of common experience that court’s otherwise scarce and valuable time is  consumed or more appropriately wasted in a large number  of uncalled  for cases”.

            Further  the O.P. No.3(Manufacturer) in their letter Dt.15.12.2016, and  Dt. 16.1.2017 had informed  the complainant   to collect the above mentioned lens after payment of applicable repairs from our collection centre located in Hyderabad under the terms and condition mentioned on the job sheet. This forum observed  within  warranty period the above Camera Lens  was  found defective and the O.P. No.3 charged  repair cost which is  arbitrary, whimsical,  illegal and unfair trade practice.  

                  The O.P. No.3 (Manufacturer) should give service free of cost  to the customer   with in warranty  period, but  In the instant case  the O.P. No.3 had charged  service  charges  which is illegal

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. 

                                                                                                O R D E R

                In  resultant the complaint petition  is allowed  on contest against the O.Ps.

                The O.P. No. 3 (Manufacturer)   is directed to replace the Canon Ultra Sonic 24-105 mm Lens Sl. No. 6144173   with a new one inter alia allow  fresh  2   years warranty  on the above Camera without charging any extra amount  besides  to  pay Rs. 10,000/- towards  compensation  for mental agony, unfair trade practice and Rs.2,000/- towards litigation expenses.

                The O.P. No.1  & 2   is ordered to refer the matter to the O.P. No.3  for early compliance  of the above order.

                This forum has  issued “Cease and Desist order“ against  the O.P. No.3  not to repeat the same  type manner to the  consumers   at  large  in  future.

The entire directions shall be carried out with in 45 days from the  date of receipt   of this order.   Copies be served to the parties  free of cost.

Dictated and corrected by me.

                Pronounced in the open forum on     3^rd.        ^t      day of    September, 2018.

 

MEMBER                                              MEMBER                                                                                              PRESIDENT