Mrs. Karunakar Sirla filed a consumer case on 08 Apr 2021 against Kapilash Cyber Solutions in the Rayagada Consumer Court. The case no is CC/1/2019 and the judgment uploaded on 30 Jul 2021.
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,
POST / DIST: Rayagada, STATE: ODISHA, Pin No. 765001.
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C.C.case No. 01 / 2019. Date. 8.4. 2021
P R E S E N T .
Sri Gadadhara Sahu, President.
Smt.Padmalaya Mishra,. Member
Sri Karunakar Sirla, S/O: S./Nallayya, Indira Nagar, , Po/Dist:Rayagada (Odisha). 765 001,
Cell No. 7377398588 / 9692921072. …. Complainant.
Versus.
1.The Manager, Kapilas Cyber solutions, Dealer, Rayagada(Odisha)
2.SRNo.322/2, Gala No.-17 Malegaon 423203, Malegaon city palace hotel Malegaon Nasik-27, Maharashtra- 423203IN.
3.The Manager, Samsung India Electronics Pvt. Ltd., Plot No 28/29, Tower D Noida SECtor-62, Noida 2201309 ..…..Opp.Parties
Counsel for the parties:
For the complainant: - Self.
For the O.Ps 1 & 2 :- Set exparte.
For the O.P. 3:- Sri K..Ch.Mohapatra, Advocate, Bhubaneswar.
JUDGEMENT
The crux of the case is that the above named complainant alleging deficiency in service against afore mentioned O.Ps for non rectification of Samsung C900F C9 pro black 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.
Inspite of notice the O.Ps 1 & 2 had not attended. Hence the O.Ps 1 & 2 were set exparte.
Upon Notice, the O.Ps No.3 put in their appearance and filed written version through their learned counsel in which they refuting allegation made against them. The O.Ps taking one and another pleas in the written version sought to dismiss the complaint as it is not maintainable under the C.P. Act, The facts which are not specifically admitted may be treated as denial of the O.P No.3. Hence the O.Ps No.3 prays the forum to dismiss the case against them to meet the ends of justice.
Heard arguments from the learned counsel 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 Samsung C900F C9 Pro having its IMEI No. 356368083374356 on Dt. 10.1.2018 from the O.P. No.1 bearing invoice No.95 on Dt.10.01.2018 on payment of consideration a sum of Rs.29,900/-. The O.Ps. have sold the said set to the complainant providing one year warranty period. (copies of the bill is in the file which is marked as Annexure-I ).
After using some months i.e with in the warranty period the complainant has shown defective in the above set i.e. it became net working problem, camera, data missing found and was not functioning properly. Hence the complainant approached the service centre situated at Rayagada(Odisha) for its rectification. But the Service centre has not rectified the same within the warranty period.
The main grievances of the complainant is that due to non rectification of the above set perfectly within warranty period he wants refund of purchase price of the above set. Hence this C.C. case.
The O.Ps in their written version contended that as per the request of the complainant the Service Engineer had updated the software of the phone for work properly. Thereafter the Service centre verified and observed no defect in the hand set only the software was corrupt. Thereafter the service centre immediately updated the software of the said alleged mobile phone and returned the same with defect free to the complainant. Since this date the complainant has been smoothly using the mobile phone till now without caused any defect and without any allegation made before the O.P. Also no allegation was made by the complainant before any O.Ps or any service centre regarding the defect of the above set before filing of the said case. All of sudden at the end of warranty period of the said alleged set the complainant has filed this frivolous and vexatious complaint before forum without any cause of action against the O.Ps by suppressed all the real facts not only to secure the illegal and unlawful gains from the O.Ps but also to tarnish the reputation of the O.Ps. The complainant is not entitled to get any relief claimed therein and this complaint is liable to be dismissed for this ground alone.
The O.Ps in their written version relied citations which are mentioned here:-
It is held and reported in CPJ – 1997(2) page No. 81 in the case of Punjab Tractors Ltd. Vrs. VirPratap where in the Hon’ble National Commission observed “Where the complaints of the complainant were duly and promptly attended by the O.P. and no reliable evidence was produced by the complainant in support of his case that he suffered a loss due to inconvenience caused to him, the complainant in this case is not entitled to any relief. In the present case the OPs have duly attended the complaints of the complainant and have therefore never been deficient in providing the services to the complainant.”
Further it is held and reported in CPJ 1992 (1) page No. 97 in the case of Sabeena Cycle emporium chennakhaadaVrs. ThajesRavi M.R. Pancha Villa VedarEzkhone P.O. where in the Hon’ble State CDR Commision, Kerala observed “Where the complainant alleges defects in the goods, the forum is bound to determine this fact on the basis of clear evidence by way of expert opinion. The aforesaid proposition of law has also been reaffirmed by the Hon’ble State Commission,West Bengal in the case of Sri Keshab Ram MahtoVrs. Hero Honda Motors Ltd and Anrs. 2003(2) page No. 244.
Again it is held and reported in AIR-2006 S.C 1586 in the case of i.e. MarutiUdyog Ltd. Vrs. Susheel Kumar Gabgotra and others where in the Hon’ble Supreme Court observed “Warranty conditions clearly refers to replacement of defective part not the car – Not a case of silence of a contract of sale of warranty”. The O.Ps vehemently contended that in this case there is no defect in the mobile set of the complainant, but the complainant has filed this fabricated complaint only to tarnish the reputation of the O.Ps and to secure the unlawful gains from the O.Ps.
Further is it held and reported 2014(3) CPR- 724 in the case of Bajaj Tempo Ltd Vrs. Shri Ajwant Singh & Another where in the Hon’ble National Commission opined that “Manufacturing defect must be proved by expert opinion”.
For better appreciation this District Commission has relied citations which are mentioned here under:-
It is held and reported in Current Consumer Case 2005 Page No. 527 (NS) in the case of Meera&Co Ltd. Vrs. ChinarSyntex Ltd where in the Hon’ble National Commission observed “Consumer- Generating set purchased - defects developed during warranty period - repairs done on payment - dealer can not be absolved from his liability because manufacturer has not been impleaded- dealer deficient in service- order to dealer refund amount with interest to the complainant.”
Again It is held and reported in CTJ-2005, Page No. 1208 where in the hon’ble National Commission observed “Both the dealer & manufacturer of the product having defects in it, are jointly and severally liable to the purchaser, because he knows only the dealer from whom he purchased that product and not its manufacturer”.
Further It is held and reported in CPR- 2009 (2) Page No. 42 where in the Himachal Pradesh State Commission observed “ we may mention here that it is by now well settled that the C.P. Act, 1986 is a welfare legislation meant to give speedy in expensive and timely justice to the parties. Similarly it is also well know that where two views are possible, one favourable to the consumer needs to be followed.”
Again it is held and reported in Consumer Law today 2014(1) page No. 153 where in the Hon’ble Goa State Commission observed “The tax invoice duly signed by dealer can be considered to be an agreement between the parties subject to which the sale was made to the consumer – liability for defect in article sold both the dealer and manufacturer are jointly and severally.
Further It is held and reported in C.P.R-2012(1) PAGE No. 303 in the case of LogaPrabhuVrs. Adonis Electronics Pvt. Ltd and ors the Hon’ble State CDR Commission, Chennai where in observed “Consumer is entitled to free service/replacement during warranty period”.
Again It is held and reported in NC & SC on consumer cases (Part-VI) 1986 to 2005 page No. 9089(NS) the Hon’ble National Commission, New Delhi where in observed “ Motor Vehicle- dealer’s responsibility- vehicle sold by dealer after receiving payment- manufacturing defect- dealer can not be absolved from his liability in refund the price or replacement- jointy liable with manufacture”.
Now we have to see whether there was any negligence on the part of the O.Ps in treating the complainant as alleged ?
We perused the documents filed by the complainant and it proves that the complainant has purchased a mobile set from the O.P. No.1 and after its purchase when the mobile set was found defective the O.P failed to rectify the defect.The complainant has approached the service from time to time but the defects were not removed by the service centre. At the time of selling their products the O.Ps should ensure that they would provide after sale service to the customer but in this case the O.Ps sold their produce and failed to give after sale service which is a clear deficiency in service on the part of the O.Ps. At this stage we hold that if the mobile set require service immediately after its purchase then it can be presumed that it is manufacturing defective and if a defective mobile is supplied, the consumer is entitled to get refund of the price of the product/article or to replace a new one. In the instant case as it appears that the mobile set which was purchased by the complainant had developed defects after using some months and the O.Ps were unable to restore its normal functioning during the warranty period.
It appears that the complainant invested a substantial amount and purchased a mobile set with an exception to have the effective benefit of use of the product but in this case the complainant was deprived of getting beneficial use of the article and deprived of in using the mobile set for such a long time and the defects were not removed by the O.Ps .
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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 ordered to issue Cupon in favour of the complainant for Rs.29,900/- towards purchase price of Samsung C900F C9 Pro black mobile set which was purchased by the complainant on Dt. 10.1.2018 for purchase of higher model from the Samsung company. It is clarified that, if the new up-to-date model is above Rs.29,900/- the complainant will pay the differential price to the O.Ps after deducting the original price. Parties are left to bear their own cost.
The O.Ps 1 &2 are directed to refer the matter to the O.P No. 3(Manufacturer) for early compliance of the above order and co-operate the complainant for better co-ordination with the O.P. No. 3 to provide satisfying service for which he is entitled.
The O.P No.3 (Manufacturer) is ordered to comply the above direction within one month from the date of receipt of this order. Service the copies of the order to the parties.
Dictated and corrected by me. Pronounced on this 8th. Day of April, 2021.
Member President
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