Ld. Advocate(s)

                                                For Complainant: self

                                                For OP/OPs : Makbul Rahaman

                        Date of filing of the case                       :04.07.2022

                        Date of Disposal  of the case                  :25.07.2024

Final Order / Judgment dtd.25.07.2024

          The concise fact of the case is that complainant Shyamal Karmakar  purchased a mobile phone being model  as Xiaomi 11i  IMEI No. 869406050398014  from OP No. 1 Gita Eanterprise ( Mi- Store)  Krishnagar, Nadia on 19.01.2022 at the price of Rs. 27,499/-. But phone was served as Xiaomi Flipcart, instead of original Xiaomi by the dealing staff Nandakishore Agarwala. After two days of purchasing the complainant found that on the display board a white spot line was appearing through up and down screen and ensure that the phone had some dispute. Thereafter the complainant visited the said

MI Store and informed the Authority about the said defect and also showed the said defect on 09.02.2022. The OP no 2 advised to visit at the service centre at Protima Infotech i.e OP No. 2 at D.L.Roy Road, Bowbazar, Krishnanagar, Dist. Nadia. The complainant also filed one complainant to OP No. 1. The OP took phone details for informing it to the higher Authority and advised the complainant to come another day for non-availability of original parts. On 19.02.2022 the complainant again went to the OP and handed over the phone after repairing.  Even after the repairing the said defect was not cured and finger print bottom was missing. The complainant again visited to the OP No. 2 service centre but they did not entertain. The complainant requested the OP to change the said phone or take proper steps but they ignored it, so the complainant raised his grievance to Kreta Suraksha Authority. The complainant also sent letter of grievance to the OPs on 05.03.2022 but they ignored it.  So the case is filed. The complainant therefore prayed for an award to change the said phone and pay the loss of expense by both the OP for the sum of Rs.60,099/-.

OP contested the case by filing W/V. OP No. 1 changed the case has not maintainability. The positive defence case of the OP No. 1 is that the complainant purchased the mobile hand set being Model Xiaomi 11 i Pacific pearl 8 GB RAM 128 ROM. On 09.01.2022 after proper cheeking the said product is original Xiaomi which the OP  No. 1 purchased from M. Poddar & Co. Pvt. Ltd., the authorised distributor of Xiaomi product of  Nadia district  by tax invoice  dtd 19.01.2022. After 2 days the complainant informed them that he was spotting line through up and down screen. The  OP No. 1 asked him to visit their store  or any other authority MI Service Centre within 7 days of tax invoice as the hand set had 7 days replacement policy. The complainant visited their store on 09.02.2022 after 21 days. The said hand set has no home warranty policy. During visit the complainant told them everything and the OP No. 1 directed him to go to the service centre but the disputed part of the hand set was not in the stock. As per the request of the customer they asked the service centre to arrange for the parts as soon as possible and solved the problem on priority basis. The complainant visited the store again on the next date but they suggested to talk with the service centre. Despite order of Kreta Suraksha Authority to send the letter but the OP No.1 did not receive any letter. The OP No.1 got a call from Kreta Suraksha Authority with a request to visit the office and a meeting was held in the office wherein it was decided that the complainant would submit the phone in the service centre within 7 days and the latter will resolve the dispute. It was also decided that if any further a dispute occurs in the next one year then the amount will be refunded or hand set will be replaced. But the complainant had not submitted the phone or contacted with the OP no 1.

OP No. 2 also contested the case denying the entire allegation. The Positive defence case is that the OP No. 2 is an authorised service centre of Xiamoi Technology India private Limited. On 19.02.2022 the complainant approached the authorised service centre of OP no. 2. The service engineer duly recorded the dispute of the product and requested the complainant to wait until inspection is completed. After examination of the product at the service centre, defects were duly repaired  at free of cost as per warrantee provision  and the product was duly returned  to the complainant in proper working condition as it can be ascertained from service centre job sheet. Other than mere allegation the complainant has not proved that the product is   presently suffering from any manufacturing defect. There was no manufacturing defect in the hand set. It was returned in proper working condition. Since limited warranty is restricted to repair or replace the defective part, the complainant is not entitled to any other remedy. There is not deficiency in service. The complaint is liable to be dismissed with cost.

 Having considered the pleading of the parties the commission considers that the following points should be ascertained for proper adjudication of the case.

Points for Determination

Point No.1.

Whether the present case is maintainable in its present form and prayer.

Point No.2.

          Whether the complainant is entitled to get the relief as prayed for.

Point No.3. To what other relief if any the complainant is entitled to get.

Decision with Reasons

Point No.1.

 The present point relates to question as to maintainability of the case. OP challenged the case as not maintainable on the ground that the complainant is not consumer.

 Although the OP no. 1 took the said plea yet in course of argument Ld. Defence counsel did not advance any argument on that point.

Having perused the pleading of the parties and the evidence in the case record it transpires that it is admitted fact that the complainant purchased the disputed mobile phone from OP no. 1 for Rs. 27,499/- . OP no. 1 is the seller of the product and both the parties are purchaser and seller. Accordingly, relation between the complainant and the OP is covered within the purview of the C.P.Act.

Ld. Defence counsel for the OP no. 1 argued that the complainant claimed that there is manufacturing defect so without making the manufacturer a party to this case, it is bad for defect of party.

 The complainant argued that he purchased the product from OP no. 1 which is Branch MI store, the OP no. 2 is the service centre of the manufacturer, so the complainant rightly made the OP as party to case. Accordingly not making manufacturer as party to this case is not a ground for defect of the party.

Both the parties reside within the territorial jurisdiction of this Commission. The relief claimed also falls within the pecuniary jurisdiction of this commission.

 Accordingly, there is nothing within the four corner of the case record to hold that the case is barred under any provision of law.

 Accordingly point no. 1 is answered in affirmative in favour of the complainant.

Point No.2 and 3

Both the  points 2 and 3 are very closely inter linked with each other and as such  these are taken up together for brevity and convenience of discussion.

 It is the admitted fact that the complainant purchased the disputed mobile phone from OP no. 1. It is the main allegation of the complainant that after purchasing there was a major defect in the said mobile phone which was communicated to the Ops but even after repairing the said defect was not cured. One meeting was held in presence  of the Kreta Suraksha office but the OP did not abide by the decision of the meeting. So the present case is filed.

 Complainant in order to substantiate the case proved the following the documents in course trial.

 NO. 1:- Tax invoice for purchase of Xiaomi 11 i Pacific Pearl mobile phone for a sum of Rs. 27,499/- from the OP no. 1 Gita Enterprise (Mi- Store) D.L.Roy .Road

 NO. 2 service record showing repairing work done by the Protima Infotech  OP no. 2 D.L. Roy Road Boubazar, Krishnagar.

 NO. 3:- Warranty card of Xiaomi mobile phone.

It is the  defence case of the OP no.1 is that just  after detecting the alleged defect they suggested the complainant to contact with the service centre. OP no. 2 being service centre after repairing returned  back the said mobile phone to the complainant. So liability of the OP no. 1 has come to the end and they have no further liability.

After perusing the pleading of the parties it transpires that the OP no.2 admitted in pleading in Para 7 that after examining and reviewing the product at the service centre, defects related to the product was duly repaired at free of cost as per warranty provision by the technician of the respondent no. 2 as per the standard applicable warranty condition and the product was duly returned to the complainant in proper working condition.

 Said specific pleading of the OP no. 2 implies that the disputed mobile phone had manufacturing defect and it was repaired free of cost as per warranty provision. It also means that the complainant deposited the defective mobile to the service centre within the warranty period. So the complainant has not violated the warranty condition. In Para 10 OP no. 2 further contended that there was no manufacturing defect in the hand set. The Said averment of the OP no.2 is not acceptable in as much as had there been no manufacturing defect, then why OP no. 2 repaired it.

 It is further revealed from the averment of OP no. 1 in Para 11 of the W/V of OP no. 1 that after getting a call from the office of Kreta Suraksha Authority all the 3 parties were present at the office. They came to the mutual decision that the complainant will submit the phone in the same service centre within 7 days. The service centre will resolve the dispute. It was also decided that if after any further dispute occurs in the next one year, then the amount will be refunded or hand set will be replaced.

 It is the settled position of law that admitted fact need not be proved. Previously we found that the complainant submitted the defective mobile phone to the OP no. 2 service centre for repairing and after repairing it was handed over to the complainant. But the complainant categorically pleaded and adduced evidence that even after repairing the said defect could not be cured.

There is no cross examination to discard the said specific evidence. As per the said resolution before the Kreta Suraksha Authority by all 3 parties, the complainant is entitled to either replacement of the hand set or refund of the said amount.

It also specific argument of the complainant that he wanted to purchase the said disputed mobile phone from the store of the OP Company and not from online purchase. But the OP no. 1 after purchasing it through online sold it to the complainant as an original product purchased from store.

 The complainant proved the best document in this case. The mobile set was sent to Jadavpur University  for obtaining test report to ascertain whether it is defective  or not

 After perusing the said report of the Jadavpur University dtd. 10.05.2023 it transpires that the said test report was prepared by one professor of Department of Electronics and Telecommunication Engineering of  Jadavpur University. The final report disclosed that the  finger print  sensor is not working and also sound and picture quality is very poor.

 OP could not discard the said test report in the newly purchased mobile phone. If there is such major defect like not working of finger print censor and poor quality of sound and picture, These are clearly  mark of manufacturing defect.

 All the parties in the meeting before Kreta Suraksha Authority unanimously  decided that   if  even after repairing, the said defect are not cured  in the next one year and any dispute arises the amount will be refunded   and hand set will be replaced.

 The Ld. counsel for the OP further argued that if there is no defect, the OP no. 1 has no liability because he purchased it from M. Podder .

 The complainant argued that the OP no. 1 purchased the second hand mobile phone from M.Podder and reselling   it as a new brand.  In this respect he drew the attention of this commission in respect of   definition of unfair trade practice wherein reselling of second hand product   has been considered as unfair trade practice.

 The argument is reasonable force in as such as per section 1(47) CPA the Ops have acted in a manner which tantamount to unfair trade  practice.

Having assessed the entire evidence in the case record, it is evident that the OPs sold the defective mobile phone having manufacturing defect.

In the back drop of the aforesaid discussions and observation made hereinabove the commission comes to the finding that the complainant successfully proved the case up to the hilt.

 Accordingly Points no. 2 and 3 are answered in affirmative in favour of the complainant.

          In the result the complainant case succeeds on contest against  both the parties with cost.

Hence,

It is

Ordered

that the complaint case no.CC/76/2022 be and the same is allowed on contest with cost of Rs. 5,000/- .The complainant do get an award for a sum of Rs. 60,099/-(Rupees sixty) from both the OP no. 1 and 2 , Rs. 5,000/-   towards  unfair trade practice and Rs. 5,000/- towards litigation cost. The Op no. 1 and 2 are jointly severally liable for payment of the award money.

 Both the OP no. 1 and 2 are jointly and severally liable  to pay  Rs. 70,099 /- to the complainant after taking  back the disputed mobile phone handset  as stated in the complaint within the 30 days from the  date of passing the final award failing which the entire award money shall carry an interest @ 8% per annum from the date of passing the final  award till the date of its realisation.

All Interim Applications (I.A) stand disposed of  accordingly.

D.A to note in the trial register.

The case is accordingly disposed of.

Let a copy of this final order be supplied to both the parties at free of costs.   

Dictated & corrected by me

 ............................................

                PRESIDENT

(Shri   HARADHAN MUKHOPADHYAY,)                               ................................................

                                                                                                                          PRESIDENT

                                                                                      (Shri   HARADHAN MUKHOPADHYAY,)

I  concur,

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                      MEMBER                                                                                                                        

(NIROD  BARAN   ROY  CHOWDHURY)