Orissa

Rayagada

CC/83/2018

Ananta Paleswar Behera - Complainant(s)

Versus

Manager cum Propritor My Zone Mobile - Opp.Party(s)

Self

04 Sep 2020

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    COMMISSION, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 83/ 2018.                                          Date.     4. 9. . 2020.

P R E S E N T .                

Dr. Aswini  Kumar Mohapatra,                                      President

Sri  Gadadhara  Sahu,                                                       Member.

Smt. Padmalaya  Mishra,.                                                Member

 

Sri Ananta Palweswar Behera,  Po/  Dist: Rayagada, State:  Odisha.                                                                                                                         …….Complainant

Vrs.

1.The Propritor,  My  Zone  mobile service, Rayagada(Odisha).

2.The Manager, Samsung Service Centre, New Colony, Rayagada(Odisha

3.The Manager, Samsung India Electronics Pvt. Ltd., A-25, Ground Floor, Front Tower, Mohan co-operative Industrial Estate, New Delhi- 110044.

                                                                           …  Opposite Parties.

For the Complainant:- Self.

For the O.Ps  No.1 :-.Set  Exparte.

For the O.P No.2 & 3  :- Sri K. C. Mohapatra and associates, Bhubaneswar.

 

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 mobile  price  a sum  of Rs. 22,000/- which was found  defective   during warranty period.

On being noticed  the O.P  No. 1   neither entering in to appear before the forum nor filed their  written version inspite of more than  09 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.P No.1.  Observing lapses of around 2 years  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 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.

On being noticed the O.P  No. 2 & 3  appeared through their learned counsel and filed joint  written version 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 learned counsel for the    O.Ps  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. Samsung  J-7 pro gold   bearing IMEI No.35867408102067901 from the O.P.  No.1  by paying a sum of Rs. 22,000/-  with Retail Invoice dt.22.8.2017 with  one year warranty (Copies of the invoice is in the file which is marked as Annexure-I). But unfortunately within two months  of its use  the above  set found defective and not functioning  i.e Not showing  the numbers properly, sound system not clear  screen problem Net work problem,  most of the time dead. The complainant complained to  the O.P No.2 (service centre)  for necessary repair on Dt. 2.2.2018 (Copies of the  service request is in the file which marked as Annexure-2).  Even such service  the above defects were persisting in the said set. So the complainant  intimated the same to the O.P. No.2 for replacement or refund of the price of the mobile set   in turn the OPs paid deaf ear.   The complainant further approached the O.Ps for return the money which he spent but for no use.  Hence this case.

            On perusal of the record  it is revealed that  the fact of the  purchase  of Mobile set    is not denied by the  O.Ps.  It is admitted position the complainant having  purchased   above goods for  consideration  having the warrantee for one year.

It is admitted position of law that when   a  goods sold  by the  manufacturer has under gone  servicing   the complainant is entitled to thoroughly  check up  of the mobile set   and   to  remove   the defects  of   the above set  with fresh warrantee .

Coming to the merits of the case the complainant had purchased the Mobile set  from the O.P No. 1   on payment of consideration  an amount of Rs. 22,000/- on Dt. 22.8.2017 (copies of the  retail  invoice marked as Annexure-I).  On perusal of the record we observed  the complainant  after using  some months for rectification of defects handed over the same to the O.P. No.2 (service centre) for repair.

The  O.P. No.2 & 3   in their written version   contended that the complaint  is not maintainable since it is based upon false, frivolous and vexatious pleas. The complainant  has neither adduced any evidence nor submitted  any material particulars so as the mobile phone of the  complainant has defect or regarding the manufacturing  defect of his mobile phone or regarding the deficiency in service and unfair trade practice committed by the parties.  Hence the complaint of the complainant liable to be dismissed.  

Again  the  O.P. No. 2 & 3  in their written version   contended that it is clearly reflects from the face  of the complaint  of the complainant  that, the complainant  has not come  with clean hands to the forum. He has suppressed all the real  & true facts regarding  his mobile phone. The complainant has  falsely  made the peculiar allegations  against the O.Ps without any proof.   The complainant has better known, what type of defect arose in his mobile phone. It is quite impossible to believe  on simple submission of the complainant. The complainant  has not mentioned the type of defect and the date of defect appeared in his mobile phone. The burden of proof lies with the complainant, he has to prove his case beyond  all reasonable doubt.  Hence all the allegations &facts  are balled lie.  The complainant has to strict proof of the same.

Further the  O.P. No. 2 & 3  in their written version   contended that in the present case the complainant has purchased the Samsung  mobile phone from the O.P. No.1 on Dt. 22.8.2017 with one  year warranty   from the date of purchase. After  using the mobile  phone the complainant has made allegation on Dt. 2.2.2018   to the O.P. No.2 for rectification the defect of the set hand.  So the  O.P. NO.2 has received the above set from the complainant and there after Service Engineer  immediately verified the same and observed that there was no defect in  above set . But all of sudden the complainant  has filed this frivolous and  vexatious case before forum without any reason  against O.Ps on 7.6.2018 just prior to expire of the warranty.

Again the  O.P. No. 2 & 3  in their written version   contended that the complainant has suppressed all the real facts  of his mobile phone. It is quite  impossible  and misconceived fact  that, the O.P. No.3 has unable to  remove the defect of the mobile phone of the complainant and stated that the above set  has inherent manufacturing defect.  The complainant has neither  narrated, in which process or on which way he sustained and suffered the same nor produced any evidence regarding  the  same.   It cannot possible to admit the same only simple submission of the complainant.  All  the allegations  of the complainant are balled lie.  If he has no proof whatsoever of the claims made by  him. Hence the complaint is liable to be rejected on this ground alone.

The  O.Ps 1 & 3  in their written version  mentioned citations of the Apex commissions & Hon’ble  Supreme Court  which are  mentioned  here under.

 

It is held   in the case of Bajaj Tempo Ltd Vrs. Shri  Ajwant Singh & Another reported in  2014(3) CPR- 724  N.C where in   the  Hon’ble National Commission opined that “Manufacturing defect must be proved by expert opinion”.

Further  it is held  in the case of   Maruti  Udyog Ltd. Vrs. Susheel  Kumar Gabgotra and others reported in  (AIR-2006)S.C 1586 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”.

Again it is held   in the case  of   Stero  Craft   Vrs.   Monotype India  Ltd., New Delhi reported in 2000 NCJ 59(SC) where in the Hon’ble Supreme Court observed  that when terms of warranty does not cover refund or replacement, then consumer can not claim either  replacement or refund during  or after the lapse of warranty period. The terms and conditions of the warranty  of the O.Ps  are reflected in the warranty  card.  The warranty conditions refers to replacement of spare if the defective spare  satisfy the terms and conditions of the warranty. Therefore the prayer of the complainant can not be granted in favour of the complainant. 

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.

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 22/8/2017  and filed this complaint on 7.6.2018 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.2 & 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  are 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        4 ^th.     day  of    September,  2020.

 

MEMBER                               MEMBER                                                       PRESIDENT