Tripura

StateCommission

A/2/2019

Shri Sujan Shil - Complainant(s)

Versus

Miss Madhurima Dey - Opp.Party(s)

Mr. Kanu lal Das, Mr. Sanjib Ghosh, Mr. Suryabrata Chakraborty

01 Apr 2019

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

 

Case No.A.2.2019

 

1. Sri Sujan Shil,

C/o Sri Nehar Chandra Shil,

Proprietor of Sri Sri Laxmi Stores,

P.O. Usha Bazaar,

P.S. Airport, Agartala,

District: West Tripura,

Pin: 799009.

… … … … … Appellant/Opposite Party No.1.

Vs

 

1. Miss Madhurima Dey,

D/o Sri Manik Chandra Dey,

CISF Complex, Airport Quarter No.B-79,

P.S. Airport, P.O. Usha Bazar,

Agartala, District: West Tripura,

Pin: 799009.

… … … … … Respondent/Complainant.

2. OPPO Service Centre,

Jackson Road, 1^st Gate,

3.  

P.O. Agartala, West Tripura,

Pin: 799001.

… … … … … Respondent/Opposite party No.2.  

 

Present

Hon’ble Mr. Justice U.B. Saha

President,

State Commission

 

 

Mr. Narayan Ch. Sharma,

Member,

State Commission

 

Dr. Chhanda Bhattacharyya,

Member,

State Commission

 

For the Appellant:                                           Mr. Kanu Lal Das, Adv.

For the Respondent/Complainant:               Mr. Sumit Debnath, Adv.

For the Respondent No.2:                              Absent.

Date of Hearing & Delivery of Judgment:     01.04.2019.

J U D G M E N T [O R A L]

 

U.B. Saha, J,

The instant appeal is filed by the appellant, Sri Sujan Shil, Proprietor of Sri Sri Laxmi Stores, P.O. Usha Bazaar, P.S. Airport P.S., Agartala, West Tripura under Section 15 of the Consumer Protection Act, 1986 challenging the judgment dated 10.12.2018 passed by the learned District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in case No. C.C.18 of 2017 whereby and whereunder the learned District Forum directed the appellant, Sri Sujan Shil (hereinafter referred to as opposite party no.1), the Proprietor of Sri Sri Laxmi Stores and the Dealer of OPPO Mobile Company as well as the respondent no.2 (hereinafter referred to as opposite party no.2), OPPO Service Centre to pay an amount of Rs.5,000/- as compensation for mental agony and Rs.3,000/- as cost of litigation, in total Rs.8,000/- jointly and severally to the complainant, the respondent no.1 herein, within 45 days failing which, the amount will carry interest @9% per annum till payment is made and also directed both the opposite parties to arrange for repairing of the mobile set to the satisfaction of the complainant within three weeks on producing the mobile set by the complainant before the opposite party no.1, failing which the opposite party no.1 shall provide the complainant a new set of similar price and that if he fails to do so, he shall return the price of the mobile set to the complainant.  

2. Heard Mr. Kanu Lal Das, Ld. Counsel appearing for the appellant-opposite party no.1, Sri Sujan Shil as well as Mr. Sumit Debnath, Ld. Counsel appearing on behalf of the respondent no.1 (hereinafter referred to as complainant). None appears for the respondent no.2, OPPO Service Centre (hereinafter referred to as opposite party no.2/ Service Centre) even after receipt of the notice.
3. Brief facts needed to be discussed are as follows:-

The complainant, Miss Madhurima Dey, had purchased one mobile phone OPPO NEO-7 from the appellant-opposite party no.1 on payment of Rs.9,500/-. A warranty card dated 19.10.2016 bearing No. IMEI1: 861227039811515 and Black IMEI2:861227039811507 was given by the opposite party no.1 in the name of the complainant against purchase of the said phone and it was said that warranty period would be for one year from the date of purchase of the said mobile phone. After few days of purchase, the mobile phone was not working. So she went to the opposite party no.1 on 23.11.2016 after 33 days. As advised by the opposite party, the mobile phone was charged for 24 hours, but it was not in working condition. Ultimately, the mobile phone was handed over to the opposite party. Again, she visited the shop of the opposite party. Then the opposite party, Proprietor of Laxmi Stores, told her that the mobile is to be sent to Guwahati for repairing for which the opposite party kept the said mobile phone with him without providing any receipt and he also told that the phone has to be sent to the Service Centre for repairing as it was within the warranty period. After a week when the complainant visited the said shop of the opposite party, she was informed that the repair was under process and it would take some time. Again after about 15 days, she along with her mother visited the shop of the opposite party. On 30.12.2016, the opposite party returned the said mobile phone stating that Rs.3,000/- would be required for repairing of the said mobile as the mobile phone was damaged due to immersion in water. The mobile was ultimately handed over to the complainant after a month. Thereafter, she served a lawyer notice to the opposite party and finally filed a complaint petition before the Ld. District Forum claiming Rs.50,000/- as compensation.

4. Opposite party no.1 appeared and filed his written statement denying the claim. It is stated that the mobile phone in question was purchased by the father of the complainant in her name and accordingly, the opposite party no.1 issued cash memo in the name of the complainant for the said mobile and he also issued the warranty card. Thereafter, the opposite party along with the father of the complainant went to the Authorised Oppo Service Centre, namely, Pacetel Systems Private Ltd. i.e. the opposite party no.2 wherein the said mobile phone was inspected by the Authorized Oppo Service Centre and it was found that the mobile was damaged due to immersion in the water and it can only be repaired on payment of Rs.2,700/-. It is further stated that the complaint petition was not maintainable being the Company who manufactured the said mobile was not made party and there was no deficiency in service by the opposite party no.1, being the seller of the said mobile phone.
5. The opposite party no.2 did not file any written statement, though one Sri Tapas Roy, Authorised Signatory and Technician of the opposite party no.2, Service Centre was examined and cross-examined as O.P.W.2.
6. Complainant produced the cash memo, notice, warranty card of the mobile phone and also submitted her statement on affidavit and the statement on affidavit of her father, Sri Manik Chandra Dey.
7. On the other hand, the opposite party produced reply to the demand notice, postal receipt, copy of opinion/report of Sri Tapas Roy of Pacetel Systems Private Ltd. dated 27.12.2016, three photographs of the mobile set. Opposite party no.1, Sri Sujan Shil also submitted his statement on affidavit.
8. The learned District Forum considering the documents exhibited as well as the evidence on record passed the judgment on 03.05.2017 in the aforesaid complaint case wherein the learned District Forum directed the opposite party to pay the price of the mobile phone of Rs.9,500/- to the complainant for purchasing a new one and also to pay Rs.10,000/- for deficiency of service, in total Rs.19,500/-. Complainant is to give back the damaged mobile to the opposite party, if it is under her custody. Payment is to be made within one month, if it is not paid, it will carry interest @9% per annum.
9. Being aggrieved by the aforesaid judgment dated 03.05.2017, the appellant-opposite party no.1 filed an appeal before this Commission being Appeal Case No.A/28/2017. This Commission after hearing the parties and considering the judgment dated 03.05.2017 as well as the order sheet of the learned District Forum and evidence on record, set aside the judgment dated 03.05.2017 and remanded back the case to the learned District Forum to decide the case afresh, disposing of the application dated 03.04.2017 and also to call Sri Tapas Roy as O.P.W. and consider as to whether the Company who manufactured the mobile is a necessary party or not as raised by the opposite party in their written statement vide judgment dated 17.07.2017 of this Commission in Appeal Case No.A/28/2017.
10. After receipt of the case on remand, the learned District Forum examined Sri Tapas Roy as one of the O.P.W. and held that no manufacturing defect was detected in the mobile phone and thus the Company is not liable. The learned District Forum also held that unfair trade practice and deficiency of service was made by both the Service Centre and the Seller though the Service Centre was not made party in the case and finally passed the judgment.
11. Being aggrieved by the impugned judgment dated 10.10.2017, the appellant-opposite party no.1 filed again an appeal being Appeal Case No.A/55/2017.
12. After hearing of the aforesaid appeal, this Commission set aside the aforesaid judgment and the case was remanded back again to the learned District Forum to decide the application of the complainant dated 24.08.2017 first and then decide the case providing opportunity to the Service Centre to adduce their evidence subject to the Service Centre is added as a party by the Forum on the basis of the application of the complainant.
13. Upon receipt of the case on remand, the learned District Forum made the Service Centre, the opposite party no.2 as a party and after recording the evidence of Sri Tapas Roy, Authorised Signatory and Technician of opposite party no.2 passed the impugned judgment.
14. Being aggrieved by the impugned judgment the appellant-opposite party no.1 filed the instant appeal.
15. Mr. Das, Ld. Counsel while urging for setting aside the impugned judgment would contend that the learned District Forum failed to consider that the dealer of a manufacturing company cannot be held liable for deficiency in service in case of manufacturing defects in a particular consumer product unless it was shown that the manufacturer had sold the product to the dealer on principal to principal basis. He further submits that the appellant-opposite party no.1 is only an intermediary between consumer and the manufacturing company thus the responsibility for the manufacturing defect would only be fixed either on the manufacturing company or to its service centre who represent the company. In support of his aforesaid contention he has placed reliance on a decision of the Hon’ble National Consumer Disputes Redressal Commission passed in Classic Automobiles Vs. Lila Nand Mishra & Anr., (2010)  1 CPJ 235 (NC) particularly, paragraph-18. He has also relied upon another judgment of the Hon’ble National Consumer Disputes Redressal Commission in Krishanpal Singh Vs. Tata Motors Ltd. & Ors., (2014) 2 CPJ 731.
16. On the other hand, Mr. Debnath, Ld. Counsel appearing for the complainant submits that admittedly, the complainant had purchased the mobile phone from the shop of the opposite party no.1 on payment of Rs.9,500/-. According to him, it is also admitted position that after few days use of the mobile set, the complainant found problems with the mobile and she approached to the opposite party no.1 several times for solving the problems in her mobile set and that as per advise of the opposite party no.1, the mobile set was given to the opposite party no.2 i.e. the Service Centre for repairing and the Service Centre without solving the problems in her mobile contended that the mobile was emerged in the water. He has finally contended that neither the opposite party no.1 nor the opposite party no.2 proved their case that the mobile set in question was emerged in the water. Therefore, the learned District Forum rightly passed the impugned judgment.   
17. We have gone through the evidence on record as well as the impugned judgment. From the evidence it appears that the complainant had purchased the mobile from the shop of the opposite party no.1 on payment of Rs.9,500/- and as the mobile was not functioning properly she approached the opposite party no.1 either to solve the problems of the mobile or to give her a new set of mobile, but fact remains that the opposite party no.1 took her to the Service Centre, i.e. the opposite party no.2 for repairing of the mobile. The opposite party no.2 did not contest the case by way of filing written statement though one Sri Tapash Roy, Technician of the Authroised Service Centre of OPPO Mobile appeared upon receipt of the notice from the learned District Forum and deposed before the learned District Forum as O.P.W.2 who was also cross-examined. In his evidence he has stated that he is a Technician of the OPPO Mobile and he has given his report as he had examined the mobile. According to him, there was water inside the mobile. In his cross-examination, he has stated that CCTV camera was not there at the time of examination of the mobile and he cannot say who took the snap for photograph. On perusal of the inspection report of the said witness, it is found that the mobile set got damaged due to water, but there is no evidence on record tendered by the opposite parties to prove that the mobile set was immersed in water as alleged by the opposite party no.1 in his written statement. Even the representative of the Service Centre i.e. the O.P.W.2 in his evidence did not support the allegations of the opposite party no.1 in this respect. It is found that the Technician on inspection of the mobile set opined that the mobile set was affected by water. The said witness did not state that the mobile set cannot be ever repaired. Admittedly, the defects of the mobile set had arisen during the subsistence of the warranty period. According to us, the learned District Forum rightly held that “There is no evidence on record to indicate that mobile set had manufacturing defect. It is a matter of great concern that the complainant could not use her mobile set more than 15 days though she had spent hand some amount of Rs.9,500/- for it. The O.P. No.1 being the dealer in our opinion aught to have taken proper care and provide appropriate relief to the Complainant. But instead of it he had taken a baseless stand in his written statement at page-5 stating that the mobile set had been immersed in water, whereas the O.P. No.2 who is representing the service centre in his evidence has not stated that the mobile set got immersed in water.” In the instant case, according to us, as the mobile set was not functioning within the warranty period, it is the duty of the Company to rectify the defect of the mobile through its Service Centre or the Company should replace the mobile through its Dealer. A dealer cannot take a plea that he is not in any way responsible for removing the defect and replacing the mobile and shift the burden to the customer like complainant. Considering the submission of Mr. Das, Ld. Counsel that the Dealer is not responsible for manufacturing defect, we are of the opinion that the Dealer should not be directed to pay the compensation, but Dealer is to replace the mobile, if the mobile cannot be repaired by the Service Centre.
18. In view of the above, we are modifying the impugned judgment so far the compensation and litigation cost imposed by the learned District Forum and directing the opposite party no.2, Service Centre to pay an amount of Rs.5,000/- as compensation for the deficiency in service and mental agony and Rs.3,000/- towards cost of litigation, in total Rs.8,000/- to the respondent no.1-complainant within a period of 45 days, failing which, the amount will carry interest @9% per annum till the payment is made. We also direct the opposite party no.1 for making arrangement to repair the mobile set to the satisfaction of the complainant within three weeks on production of the mobile set by the complainant and the opposite party no.1 shall place the mobile to the opposite party no.2 for repairing the said mobile set and handed over the same to the respondent no.1-complainant and if the mobile phone cannot be repaired, then the opposite party no.1 shall provide a new set of mobile of similar price to the respondent no.1-complainant and that if he fails to do so, he shall return the price of the mobile set to her within 30 days from the date of handing over of the mobile set by the Service Centre. The appellant is at liberty to take up the matter either with the Company dealing with OPPO mobile or with the Service Centre, if so desire. With the aforesaid modification the appeal is party allowed.

Send down the records to the Ld. District Forum, West Tripura, Agartala.