Date of Filing: 24.06.2014 Date of Final Order: 12.09.2014
The case of the complainant Mr. Roshan Pradhan is that on 06-02-2014 he purchased a LAVA IRIS 455 Model mobile set of Rs.7,800/- from Saha Stores, Rajen Tepothi, Cooch Behar. After three months of purchase the said set the problem cropped up as to the battery backup and warm of hand set. Facing the said problem the Complainant rushed towards Service Centre, “Mahamaya Enterprise” for sort out the problem of the Hand Set. The Opposite Party advice the Complainant to submit the battery and they returned after one week after repairing the defect. As per advice of the O.P the Complainant handed over the set to the O.P but the O.P did not return the set till date. The main allegation of the Complainant is that the O.P harassed the Complainant by giving false assurance and as the Complainant has no mobile set he is facing a lot of problem and his daily work hampered. Finding no other alternative, he has filed the present case for proper redress.
It appears that the sole O.P. in this case did not appear despite receiving the notice and the case declared Ex-parte on 22.07.2014. Besides, on 12-08-2014 for the O.P. “Mahamaya Enterprise,” Represented by Mr. Abhijit Saha, Proprietor of “Mahamaya Enterprise,” entered his appearance through his appointed Ld. Adv. Mr. Himadri Shekhar Roy and took time to file his written version with a prayer of vacating Ex-parte order. On 26.08.2014 the Ld. Agent for the O.P has filed W/V, Evidence on Affidavit, W/Ar. Along with Agentnama. Considering all, the Ex-parte orders dated 12.08.2014 is vacated.
Now, let us discuss the written version of the O.P dated 26-08-2014, wherein it has been stated that the case is not maintainable, complainant has no right to file the case, no cause of action arose, mis-joinder/non-joinder of necessary parties etc as a matter of denial of the entitlement of claims of the complainant and denying/ admitting the matters on record. Complainant has brought such false, wild allegations against him to squeeze money.
It has been admitted that the petitioner purchased a mobile hand set on 06.02.2014 from the Saha Stores and after a long time use of the set, the Complainant brought the set to the O.P complaining “battery backup problem”. The O.P. instantly received the same by issuing a Customer Job Card on 02.05.2014 and repairing the defect the O.P requested the Complainant over phone to take back the said battery but the Complainant did not come to receive the set and after a long time has filed the present case before this Forum for illegal gain. This answering O.P. further contended that the problems in the mobile hand set of the Complainant may arise due to mis-handling. Excessive net surfing etc., auto off may caused due to excessive charge.
He further assailed that for malafide intention & harassment, the complainant has brought such false, baseless allegations and even after repeated calls, he did not receive back the said hand set from the Opposite As such, the complaint petition should be dismissed with sufficient cost.
From the discussion herein before, we transparently find that O.P. in his written versions admitted the prime points of purchase of the mobile set by the complainant from the Saha Stores, who has not been made party in this case and vehemently argued that this case is bad for non- joinder and mis-joinder of necessary parties. On perusal Annexure 1 it appears that the said shop is a mobile repairing center, not the dealer /authorized seller of the said mobile hand set. The Complainant has failed to make party to the Company and the seller of the mobile hand set. In view of Civil Procedure Case, no suit shall be defeated by reason of the mis-joinder or non-joinder of parties and the Court may in every suit deal with the matter in controversy so far as regards the right and interests of the parties actually before it. Firstly, in this proceeding Civil Procedure Code is not applicable and at best it can be said that due to non-implement of the company and the seller of the said mobile hand set the complainant will not get any remedy against them and in our view the present case is well maintainable against the present O.P regarding allegation leveled against him.
We find that, said set was received by the O.P. being the Service Centre of the Company is not in dispute. The battery of the mobile set required repairing and it was to be done by the authorized Service Centre i.e., “Mahamaya Enterprise,” also has been admitted by it. The O.P. received the said hand set and issued a JOB CARD in favour of the Complainant on 02.05.2014. Here in the instant case, the prime contention of the O.P is that, the problems cropped up due to allege mishandling of the set & using the same without following the Users’ Guide/Manual. The burden of proof also lies on the above O.P. who has claimed as above but has not proved that the problems were due to mishandling/not following the user manual etc. by getting it tested from the concerned competent authority/Laboratory but remained sitting idle.
We do not find any documents as to the warranty of the said hand set but it is fact that the set was faced problem within 3 months that is also admitted and it can be reasonably presume that the dispute cropped up within the warranty period and as such the Complainant is entitled to get proper service from the service provider.
We also perused the evidence on affidavit by the Complainant which speaks that the Complainant handed over the disputed mobile hand set to the Opposite Party intend to return back the set in working condition. He on several occasions went to the shop/office of the Opposite Party to get the mobile hand set but all are in vain. Besides, the O.P. contended that after repairing the battery this O.P. over phone requested the Complainant to receive the set but the Complainant did not do for which it has no deficiency in service though no evidence on record. It is the duty of the service provider to render proper service to the customer free of cost within the warranty period as per warranty conditions.
Be that as it may, on foregoing discussion, circumstances to the case, together with the attitude and thoughts of the parties in litigation we have reason to believe that the mobile hand set is with the Complainant and the battery is lying in the custody of the O.P. after repairing the same.
The prayer of the Complainant is to return back the total purchased amount of the disputed hand set with compensation by the O.P. In this juncture it is also pertinent to mention that only being the service provider the O.P. has no liability to return back the cost of the Mobile. No manufacturing defect of the said hand set established. Moreover, the Complainant has failed to made party the Company and the seller of the mobile hand set.
Hence, we are also not inclined to frame any separate Issue/Point for discussion in the instant case for the brevity of just decision holding only the O.P is liable for negligence/deficiency in service by not returning back the battery in question to the Complainant in due time.
ORDER
Therefore, it is Ordered that the complaint/case do succeed in part, directing the O.P. “Mahamaya Enterprise,” to return the battery of the mobile hand set, after necessary repairing to the complainant Mr. Roshan Pradhan, within 7 days from this date of order with a compensation of Rs.1000/-, failure of which the O.P. shall have to pay @ Rs.50/- for each days delay by depositing the accrued amount if any in this regard, in the State Consumer Welfare Fund, West Bengal after the expiry of the stipulated period above. No award of cost.
Let a plain copy of this Order be supplied to the concerned party by hand/by Registered Post with A/D forthwith, free of cost, for information & necessary action as per rule.
