Orissa

Rayagada

CC/74/2018

Manas Kumar Lenka - Complainant(s)

Versus

Health & Happiness Pvt. Ltd., - Opp.Party(s)

Self

30 Apr 2019

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA, Pin No. 765 001.

C.C. Case  No.  74/ 2018.                                              Date.   30     .     4  . 2019

 

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                       President.

Sri   Gadadhara  Sahu,                                          Member.

Smt. Padmalaya  Mishra,                                     Member.

 

Sri Manas Kumar Lenka, S/O: Kelucharan Lenka,  Main Road,  Rayagada,Po/Dist:Rayagada. Cell No. 9040951727.                                                                                                                                                                                                                                                                                                                                                                                       …..Complainant.

Versus.

1.The Manager, Heaalth &  Happiness Pvt. Ltd., Panapakkam Village, Thiruvallur, Tamilnadu- 601266.

2.The Managger, Health & Happiness Pvt. Ltd., Regd. Office, WZ-199/2,Near Shiv Mandir,  New Delhi, West Delhi.                          

3.The Manager, Motorla Mobility India  Pvt .  Ltd., 12^th. Floor, Tower-D, DLF Cyber greens, DLF cyber city, Gurgaon- 122 002, Hariyana .

 …Opposite  party.

Counsel for the parties:                         

For the complainant: - Self.

For the O.Ps 1 ,2 :- Sri Rama Kanta Jena, Advocate, Rayagada.

For the O.P  No.3:- Sri Braja  Sundar Nayak, Advocate, Rayagada.

JUDGEMENT

The  curx of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for  non replacement  of  Motorla mobile  which was found defective within warranty period and not removed the defects    for which  the complainant  sought for redressal of the grievances raised by the complainant.  The brief facts of the case are  summarized here under.

On being noticed the O.P. No.1 & 2 filed written version through their learned counsel and contended   that  the present complaint is not maintainable and liable to be dismissed against the O.P.No.1 & 2..  The O.P.No.1 & 2  are protected  by the provisions of Section-79 of the Information  Technology Act, 2000. The  O.P. No.1 & 2 neither offers  nor provides any assurance and/or offers  warranty   to the     buyers  of the  product..The  O.P. No 1 & .2 are neither  a  ‘trader’ nor a ‘service provider’ and there does not exists any privity of contract   between the complainant and  the O.P. No1 & .2.  The O.P. No.1 & 2  are only  limited  to providing on  line platform  to facilitate the whole transaction of sale and purchase of goods by the respective sellers and buyers on its  website. The O.P No.1 & 2  taking one and other 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 & 2 .The O.P. No.1 & 2  in their written version relied  citations of the apex court. The O.P. No.1 & 2 prayed to dismiss the complaint petition against   O.P. No.1  & 2 for the best  interest   of justice.

 

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

Heard arguments from the learned counsels for the  O.Ps   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.

There  is no dispute that   the  complainant has purchased   Moto E-3 power smart phone  through online portal Flipkart  i.e. O.P. No.1 & 2 on Dt.15.5.2017  bearing  model No. 358224074759196, 358224074759204 on  payment  of amount a sum of Rs.6,999/- vide  Invoice  No. FOYOK03818-00381322. The O.Ps. have   sold  the  said set to the complainant providing  one year warranty period  (copies of the  invoice  is in the file which is marked as Annexure-I ).

            The main grievances of the complainant is that  after using some months the above set found defect and not functioning properly within warranty period. The  following  parts are not functioning  of the above set i.e. Camera, Speaker, Touch screen, charging defects  and the body of mobile phones  temperature is so high.  Due to  non rectification of the above set within warranty period the  complainant  has filed this case before the forum. Hence this C.C. case.

            The O.P.No.3 in their written version contended that  the case is not maintainable  and liable to be dismissed.  There is no cause of action to file this case against the O.Ps.  The real fact is that the complainant has purchased the mobile set  on 15.05.2017 from the O.P  No.3  through the O.P. No. 1 & 2 for a consideration amount of Rs.6,999/- with a warranty period of one year. After purchase the complainant  using the mobile set smoothly some months without any allegation  and  the warranty period was expired on 14.05.2018  prior to expire of the warranty and all of  sudden  without any prior intimation to the any OPs  and without any cause of action the complainant has filed this false petition  against the OPs. The complainant  has not mentioned the cause of action  and has not filed any document or job sheet regarding his visit for repair before the Service centre and no evidence was filed by the complainant regarding the proof of defect arose in his mobile phone and also not filed any expert opinion regarding the inherent defect in his mobile. In oblique motive  and with ill intention the complainant has filed this false  case only to   tarnish the reputation of the OPs and to get the unlawful gains from the OPs.  Neither the mobile set has any inherent manufacturing defect nor the OPs committed any unfair trade practice or any deficiency in service rather the complainant is unnecessarily giving mental  tension and harassment to the OPs by filing this complaint and hence prayed to dismiss the complaint.

            Perused the complaint petition and documents filed by the complainant and we accept the grievance of the complainant. The Complainant  argued that the O.Ps have sold a defective  mobile set  to the complainant and claimed that the O.Ps caused deficiency in service and deprived of the complainant of enjoyment of the mobile set  since the date of  its purchase  which caused mental agony and harassment to the complainant. In reply, the OPs submitted that the complainant  neither mentioned  the date of visiting the service centre  for repair nor  the name of service centre and failed to provide any proof regarding repair of  his mobile phone and the complainant has filed this case  without any cause of action and just prior to expire of the warranty period of the  said mobile phone with false,  baseless and frivolous pleas. 

 

               Now we have to see whether there was any negligence of the OPs  in providing  after sale service  to the complainant as alleged ?

            This forum perused the documents filed by the complainant. It is alleged by the complainant that  the mobile set was  found defective  after  its purchase and he went to Service Centre two to three times but the service centre failed to remove the defects but he has  not  filed any  job sheet of service centre. On verification of  retail invoice it reveals that the  complainant has purchased the mobile on Dt. 15/05/2017  and filed this complaint on 01.05.2018 prior to expiry of warranty. At this stage we hold that  if the mobile set  require  service during its warranty period and  if  OPs fail to provide proper service as per their warranty condition, then it can be  termed as deficiency in service  on the part of the OPs and  the complainant is entitled to  get refund of the price of the article or to replace a new  one or  remove the defects  and also the   complainant is entitled  and has a right to claim compensation and cost to meet his mental agony , financial loss, but in the instant case the   complainant used the mobile without any defect during its warranty period and the complainant  also fails to file the  job  sheet of other service centre though he claims that he has given the mobile set  for service. Since the complainant  fails to establish his case by filing documentary evidence regarding its defect during its warranty period, we do not believe the allegations of the complainant and also  we do not found any fault from the side of the OPs and  as such the complainant is not entitled to get any relief.

 

This forum completely agree with the views taken by the O.P No.3   in their written version. 

Keeping in view all the facts and circumstances, we are of the decisive opinion that the instant case  is devoid  of merit.  Further  this forum do not find any other legal issue involved in the matter. In the circumstances, we do not see any reason which would call  for our interference.

So  to meet the  ends of justice    the following order is passed.

                                                                        O R D E R

            In  resultant the complaint petition  stands  disposed off on contest against the O.Ps. 

The O.P  No.3 (Manufacturer)   is  directed to remove all  the defects  of the above  set including  replacement of defective parts if any free of cost enabling the complainant to use the same in perfect running condition like a new one  if the complainant  approached  the O.Ps  to rectify the defect of his   set  and shall provide all sort of after sale service to the complainant as per the terms and conditions of the  warranty of the afore said   set  with extended  warranty of six months.    Parties are left to bear own cost.

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

Serve the copies of the  above order to the parties as per rule.

            Dictated and corrected by me.

            Pronounced in the open forum on        30 ^th.     day  of    April, 2019.

MEMBER                                 MEMBER                                                         PRESIDENT