Orissa

Rayagada

CC/101/2018

K.Nageswar Rao - Complainant(s)

Versus

Majhi Gouri Cell Point - Opp.Party(s)

Self

20 Aug 2019

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 101 / 2018.                             Date.   20 .8 . 2019.

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                                      President

Sri Gadadhara  Sahu,                                                        Member.

Smt.  Padmalaya  Mishra,.                                              Member

 

Sri K.Nageswar Rao, S/O: K.Dharma Rao, Hatipathar Road, Raniguda farm,Po/Dist: Rayagada, State:Odisha.  Cell No.9437721117.                                                                                                                                                                                                                                                                                                                     …….Complainant

Vrs.

1.The  Propritor, Majhigouri Cell point,  New colony,  Rayagada (Odisha).

         2. The Manager, LAVA  care centre , M/S.  Sreevani   Traders,Rayagada.

3.The Manager, Lava International   Ltd. Noida, 201301, Utterpradesh.

                                                                        … Opposite parties.

For the Complainant:- Sri   M.R.Rath, Advocate, Rayagada

For the O.P. No.1:- Set exparte.

For the O.P No.2  :- In person.

For the O.P. No.3:- Sri Rama Prasad Patra, Advocate, Rayagada(Odisha).

JUDGEMENT

The  present disputes emerges out of the grievance raised in the  complaint petition filed by the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for  non refund of price towards   LAVA  mobile set  which was found  defective   during warranty period. The brief facts of the case   are summarised here under.

The factual matrix of the complaint in brief is that, the Complainant had purchased a Mobile set Make LAVA Z—25   bearing IMEI.No.. 911555350277746 and IMEI No.911555350277753 on dated.10/10/2017  from O.P.No-01  by paying the considerable amount of Rs.16.000/-. After purchase of just completion of   some months the said mobile hand set became hang and automatically shut down, and  the said set became shown various problems like, hang, automatic switch on/off,  non function of internet & other software problems inter alia battery back up. The complainant during the month of  12^th  June, 2018 approached the OPs  service centre situated at Rayagada(Odisha)   and obtained the Job card by depositing the defective set to rectify the defects. But though the service centre  tried to repair the set but returned the same without rectifying the defects arising in the set, and advised to contact the company i.e. OP  No.3(Manufacturer), thus the complainant contact the OP.No.3 through phone but for no result. Further the complainant requested the OP.3 to rectify the defect but the OP.3 avoided him in one pretext or the other. Hence the complainant came to a conclusion that, the said set has some inherent defect which could not be repaired by the OPs. For the above act of the OPs the complainant harassed a lot. The complainant being a busy in their work internet is highly required for his profession. Hence the complainant craves the leave of the forum for such illegal action of the OPs, and he inflicted to great humility, financial hardship and mental agony. So he prayed the Forum to direct the OPs to refund the price of the above mobile set a sum of Rs.16,000/- along with cost,   compensation and for such negligent and deficiency in service on the part of the OPs and any other relief as the forum deem fit and proper in the interest of justice.

        On being noticed the O.P No.1  neither entering in to appear before the forum nor filed their  written version though availing  of more than  07  adjournments. Complainant consequently filed his memo and prayed to set exparte of the O.P No.1.  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 from  the   complainant set the case  exparte against the O.P No.1. The action of the O.PNo.1  is against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.PNo.1  were  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.Ps No.2 & 3 put in their appearance and filed joint written version through their in which  they refuting allegation made against them.  The O.P No.2 & 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. 2 & 3. Hence the O.P No.  2 & 3 prays the forum to dismiss the case against  them  to meet the ends of justice.

Heard arguments from the O.P  No. 2 & 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 mobile set Model No. LAVA z-25  inter alia bearing IMEI.No.. 911555350277746 and IMEI No.911555350277753 from the O.P. No.1    by paying a sum of Rs. 16,000/-  vide invoice bill No.631 Dt.10.10.2017 with  two year warranty(copies of the  invoice is in the file which is marked as Annexure-I). After purchase of just completion of   some months the said mobile hand set became hang and automatically shut down, and  the said set became shown various problems like, hang, automatic switch on/off,  non function of internet & other software problems inter alia lack of battery back up . The complainant complained the O.Ps service centre   for necessary repair in turn the service centre could not make perfect running condition with in warranty period  (Copies of the  service report DT.16.6.2018  is in the file which is marked as Annexure-2).   The complainant further approached the O.Ps for return the money which he spent but for no use.

The O.P No. 2  in their written version  submitted that the complainant has not  handed over the hand set to the service centre 2^nd. time, but the company  is ready to rectify the defect of the consumer’s mobile, if  not rectified  then also the O.Ps are ready to replace  with a new one mobile.

                The O.P.  No.3 in their  written version   contended that it is pertinent  to mention that the O.P No.3 aims at customer satisfaction as its utmost priority.  The  O.P. No.3 cited citation   in Ravneet Singh  Bagga Vrs. KLM  Royal Dutch  Airlines and Another, it was held “The burden  of proving the  deficiency  in service  is upon the person who alleges it”. Again the O.P. No.3  contended that the complainant has failed to prove and place on record, any evidence in support of his allegation of deficiency in service.

 

To answer the above question the complainant submitted that after  some months  of its purchase  the above  set found defective and not functioning  i.e. such as hanging, switching off automatically, switching on automatically, non working of  Camera along  with  other problems. 

 

The  O.P. No.3 in their written version clearly mentioned that refund  shall be provided only if the product is neither repairable nor replaceable.

 

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 favorable to the consumer needs to be followed.”

            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.

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

 

We perused the documents filed by the complainant.  Since the mobile set found defective after its purchase    and   the complainant  informed the OPs regarding the defect but the  Ops  failed to remove  the defect . At this stage we hold that  if the mobile set  require  servicing since  the date of its purchase, then it can be presumed that it is defective one and if the defective mobile set  is sold to the complainant , 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.  In the instant case  as it is appears that the mobile set  which was purchased by the complainant had developed  defects 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 the mobile set  with an expectation to have the effective benefit of use of the article. In this case, the complainant was deprived of getting beneficial use of the article and deprived of using the mobile set  for such  and the defects were not removed by the O.Ps who  know the defects from time to time from the complainant.

 

           On appreciation of the evidences adduce before it, the forum is inclined to allow the complaint against the O.P No.3.

To meet the ends of justice the following  order is passed.

O R D E R

            In  resultant the complaint petition  stands allowed  in part  against the O.Ps.

            The O.P  No.. 3 (Manufacturer)  directed to return back the defective product from the complainant  by paying the price of the  above mobile set  a sum of Rs. 16,000/- besides to pay an amount of Rs.1,000/- towards mental agony and  cost of  litigation.

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

            The entire directions shall be carried out with in 60 days from the  date of receipt   of this order.    Service the copies of the order to the parties free of cost.

Dictated and corrected by me

Pronounced on this            20^th.      day  of   August, 2019.

 

MEMBER                                                         MEMBER                                       PRESIDENT