West Bengal

Birbhum

CC/149/2016

Priyatosh Das, S/O KalipadaDas - Complainant(s)

Versus

Manager, Reliance Jio Info - Opp.Party(s)

Self

31 Jul 2018

ORDER

Shri Biswa Nath Konar, President.

            The case of the complainant Priyatosh Das, in brief, is that he purchased one mobile set LYF WIND 4 by paying Rs. 7000/- to the authorize seller of O.P No.1 and O.P No.3 i.e. O.P No.2 Tara Maa Enterprise on proper receipt on 17.08.2016 with 2 years warranty.

            It is further case of the complainant that since purchased on 17.08.2016 he began to use the same but unfortunately since beginning said mobile set has not been charging properly, even after changing of charger. He reported the matter to the O.P No.2, who examined the same opined that the charging head has not been functioning and asked him to meet with O.P No.1 Customer care centre of O.P No.3, Reliance retail limited.

            It is the further case of the complainant that he went to O.P No.3, who after examination of the set opined that charging head of the set is broken and cannot be repaired without payment of Rs. 5500/- by the complainant. then the complainant has drawn attention of the O.P No.1 to two years warranty card but inspite of that he refused to repair the same.

            It is the further case of the complainant that the mobile set in question has manufacturing defect and the o.ps sold the defective set to him by practicing fraud upon him and concealing inbuilt defect of the set and illegally claimed Rs. 5500/- for repair of the set within warranty period and thereby committed deficiency in service and illegal trade practice.

            Hence this case for directing the O.Ps to replace the defective mobile set by new one or to refund the price of the same i.e. Rs. 7000/- with compensation of Rs. 10000/-.

            The O.P No.1 Reliance Jio Info, Birbhum has contested the case by filing written version denying all material allegation of the complaint, contending inter alia, that the case is not maintainable and the present complainant has no locus standi to file the present case.

            It is the specific case of the O.P No.1 that the complainant is not consumer under them. The complainant did not hire / avail any service from them against consideration.

            It is the further case of the O.P No.1 that the complainant did not raise any allegation regarding the telecom services provided by the O.P No.1 and the O.P No.1 is not the manufacturer of the LYF Mobile set. And not empowered to issue any warranty in favour of the complainant.

            It is the further case of the O.P No.1 that the complainant for illegal gain impleaded O.P No.1 in the present case whereas the O.P No.1 is only providing telecom services and the O.P No.1 in no way liable to pay any compensation to the complainant and the case is liable to be dismissed with cost.

            O.P No.3 Reliance Retail Ltd. Mumbai has contest the case by filing written version denying all material allegation of the complainant contending inter alia that the present case is not maintainable and the complainant has no cause of action to bring this case.

            It is the specific of the o.pno.3 that the complainant purchased the mobile set in question from O.P No.2 and within warranty period approached the o.pno.3 with complaint of non-charging of the mobile set.

            It is the further case of the O.P No.3 that at the time of inspection it transpired that the complainant damaged the charging point at his own use duration. The charger point of the mobile phone cannot be replaced in isolation and the entire mother board needs to be replaced. As per LYF warranty norms if any portion of the mobile hand set is damaged by external way that would not be covered under warranty terms and accordingly estimate raised for repairing cost of Rs. 5354/-. The complainant received the copy of estimate but thereafter did not turn up.

            It is the further case of the O.P No.3 that the complainant raised an allegation of manufacturing defect of the mobile set but failed to submit any expert opinion to prove such allegation. Damage of charging jack cannot be considered to be manufacturing defect.

            So, O.P No.3 is not liable to replace the mobile set or refund the amount to the complainant. Ultimately the O.P No.3 prayed for dismissal of the case with cost.

            O.P No.2 Tara Maa Enterprise, Suri has not turned up inspite of due service of notice. The case was heard ex parte against them.

Point for determination.

1.  Whether the complainant is a consumer under Sec. 2(1)(d)(ii) of the C.P. Act.?
2. Whether this Forum has jurisdiction to try this case?
3. Whether there is any deficiency in service on the part of the O.P.?
4. Whether the complainant is entitled to get any other relief or reliefs as prayed for?

DECISION WITH REASONS

During the trial the complainant Priyatosh Das has been examined as PW1, cross examined by the O.Ps and also filed some documents.

The O.P No.1 and 3 have not adduced any oral evidence but filed some documents.

Heard argument both sides.

Point No.1:: Evidently the complainant purchased one mobile set LYF WIND 4 by paying Rs. 7000/-from the O.P No. 2.

            So, the complainant is a consumer U/s 2(1)(d)(ii) of the C.P. Act.

Point No.2:: O.Ps 1 and 2 have their office cum shop within jurisdiction of this Forum.

The total valuation of the case is Rs. 22,000/- which is far less than maximum limit of the pecuniary jurisdiction of the Forum i.e. Rs. 20,00,000/-.

So, this Forum has pecuniary and territorial jurisdiction to try this case.

Point No. 3 and 4:: Both points are taken up together for convenience of discussion as they are related to each other.

The complainant in his complaint and evidence stated that he purchased one mobile set LYF WIND 4 by paying Rs. 7000/- to the authorize seller of O.P No.1 and O.P No.3 i.e. O.P No.2 Tara Maa Enterprise on proper receipt on 17.08.2016 with 2 years warranty.

Copy of the challan dated 17.08.2016 issued by the O.P No.2 Tara Maa Enterprise shows that the complainant Priyatosh Das purchased LYF mobile set at price of Rs. 7000/-.

Copy of warranty card shows that valid warranty was issued in favour of the complainant in respect of mobile set in question.

It also appears that the set was purchased on 17.08.2016. So, the set in question was within valid warranty period.

The complainant further stated that since purchased on 17.08.2016 he began to use the same but unfortunately since beginning said mobile set has not been charging properly, even after changing of charger. He reported the matter to the O.P No.2, who examined the same opined that the charging head has not been functioning and asked him to meet with O.P No.1 Customer care centre of O.P No.3, Reliance retail limited. The complainant also stated that he went to O.P No.3, who after examination of the set opined that charging head of the set is broken and cannot be repaired without payment of Rs. 5500/- by the complainant. then the complainant has drawn attention of the O.P No.1 to two years warranty card but inspite of that he refused to repair the same. The complainant also stated that the mobile set in question has manufacturing defect and the o.ps sold the defective set to him by practicing fraud upon him and concealing inbuilt defect of the set and illegally claimed Rs. 5500/- for repair of the set within warranty period and thereby committed deficiency in service and illegal trade practice.

Copy of the application dated 04.11.2016 and notice dated 16.11.2016 show that the complainant lodged complaint before the Consumer Affairs and Fair Business Practice, Suri, Birbhum.

On the other hand it is the specific case of the O.Ps that at the time of inspection it transpired that the complainant damaged the charging point at his own use duration. The charger point of the mobile phone cannot be replaced in isolation and the entire mother board needs to be replaced. As per LYF warranty norms if any portion of the mobile hand set is damaged by external way that would not be covered under warranty terms and accordingly estimate raised for repairing cost of Rs. 5354/-. The complainant received the copy of estimate but thereafter did not turn up.

So, admittedly the complainant purchased a mobile set at a price of Rs. 7000/- from the O.Ps and he is facing problem that the battery of the said set has not been charging properly.

We find that it is the case of the complainant that the set has manufacturing defect and from very beginning the set has not been charging properly.

But in his cross examination the complainant Priyotosh Das was PW1 admitted that the mobile set was charged properly upto 24.09.2016 from 17.08.2016. But later it could not take charge.

So, it can be safely concluded that there was no such problem in the mobile set since beginning but cropped up later on during his use.

Copy of the customer information slip and job card show that on 24.09.2016 the complainant had been to O.P No.1 with problem of breakage of connection point of the mobile and received the same in working condition.

We find that it is the allegation of the O.Ps that the complainant damaged the charging point of the mobile set at his own use duration.

We have already stated that as per customer information slip the set was taken to service centre with breaking connection point of the mobile.

More so, we find that it is the main allegation of the complainant the set in question has manufacturing defect and the O.Ps practice fraud upon him by selling defective set with inbuilt problem.

But PW1 Priyotosh Das in his cross examination clearly admitted that he cannot say whether the defect of mobile was manufacture defect or not and he is not expert of mobile set.

He also admitted that he has not filed any expert report.

During hearing of the argument Ld. Advocate/Agent of the O.Ps submit that without obtaining any expert report the complainant cannot claim that there was any manufacturing defect in the mobile set.

In support of his contention he cited a ruling reported in 2015(II)CPJ 715(NC), where in a case of motor vehicle, the complainant had not proved that the vehicle was a manufacturing defect by cogent evidence from any authorized expert or Govt. Laboratory as per Sec. 13(1)(C) C.P Act.

Hon’ble National Commission pleased to hold that so manufacturing defect has not been proved by the complainant.

Considering overall matter into consideration, materials on record and relying upon the ruling cited above we are constrained to hold that there was no deficiency in service on the part of the O.Ps and the complainant has failed to prove his case and the case is liable to be dismissed.

Hence, both the points are decided against the complainant. Accordingly the case fails.

Proper fees have been paid.

Hence,

O R D E R E D

that C.F case No. 149/2016 be and the same is dismissed on contest against O.P No.1and 3 and ex parte against the O.P No.2 without any order as to cost.

Copy of this order be supplied to the parties each free of cost.