Orissa

Rayagada

CC/168/2017

Amit Kumar Mallick - Complainant(s)

Versus

Kapilas Cyber Solutions, - Opp.Party(s)

Self

08 Mar 2019

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA, PIN NO.765001.

C.C. Case  No. 168  / 2017.                                      Date. 8      .    3   . 2019.

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                                      President

Sri  Gadadhara  Sahu,                                                       Member.

Smt.Padmalaya  Mishra,.                                                Member

 

Sri  Amit  Kumar Mallick,  Raniguda  Farm, Rayagada,  Po/Dist. Rayagada, Odisha.                                                                                                                                    ……Complainant

                                                            Vrs.

1. The  Propritor, Kapilas  Cyber Solutions,Rayagada-765001,Odisha.
2. The Manager, Samsung India Electronic Pvt. Ltd., Gurgaon, Hariyana.

.…...Opp.   Parties

Counsel for the parties:

For the complainant: Sri Gangadhar  Padhi, Advocate, Rayagada.

For the O.P No. 2:  Sri  K.C.Mohapatra and Associates  Advocate, Bhubaneswar.

 

JUDGEMENT

          The  factual matrix of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for non rectification of  defects towards Samsung mobile   within the warranty period  free of charges for which  the complainant  sought for redressal of the grievances raised by the complainant.  The brief facts of the case  are summarised here under.

            The facts of the complaint  in brief is that,  the complainant has purchased  a   Samsung Mobile bearing model No. Samsung Galaxy A-9-PRO  from O.P. No.1 with a  consideration of Rs.32,000/- on 19/12/2016   and during    its  warranty period the set  was found  some defect and it was given for service to the authorised service  centre and even such service  the defects persist in the mobile set  and the authorised person has asked to move the matter to the company for replacement or refund of the price .The OP manufacturing company has paid deaf ear to the genuine complaint .Hence, the complainant   finding no other option approached this forum for relief  and prays the forum  to direct the O.Ps  to   refund the  cost of the mobile  Rs.32,000/- with interest    cost and   compensation. Hence, this complaint.

Upon  Notice,  the O.P No.1  neither entering in to appear before the forum nor filed their  written version inspite of more than  11 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.Ps.  Observing lapses of around 1 year  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  the  counsel for the complainant set the case  exparte against the O.P No.1. The action of the O.P No.1  is against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.P No.1  was  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.

Upon  Notice, the O.P No.2  put in their appearance and filed written version through their learned counsel  in which  they refuting allegation made against them.  The O.P No.2  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.2 prays the forum to dismiss the case against  them  to meet the ends of justice.

Heard arguments from the O.P No.2  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 had  purchased  the  Samsung Mobile bearing model No. Samsung Galaxy A-9-PRO  from O.P. No.1 on payment of   consideration a sum of  Rs.32,000/- on 19/12/2016 /- (copies of the  Retail invoice No. 1412 Dt.19.12.2016    inter  alia   one year warranty  card  is in the file which is marked as Annexure-I).

            The main grievances of the complainant is that due to non  rectification of the  above  set perfectly  within warranty period   he wants  refund  of price of the above set. Hence this C.C. case.

            The O.P.No.2 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 19.12.2016 from the OP 1 for a consideration amount of Rs.32,000 with a warranty period of one year. After purchase the complainant  using the mobile set smoothly till today without any allegation  and  the warranty period was expired on 18.12.2017  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 19/12/2016  and filed this complaint on 28.11.2017 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.2   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.2 (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 is directed to refer the matter to the O.P. No.2 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      8^th.     day  of    March, 2019.

MEMBER                               MEMBER                                                       PRESIDENT