Tripura

StateCommission

A/55/2017

Shri. Sujan Shil - Complainant(s)

Versus

Miss. Madhurima Dey - Opp.Party(s)

Mr. S. Chakraborty, Mr. K.L Das

12 Mar 2018

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

 

Case No.A.55.2017

 

1. Sri SujanShil,
   S/o Sri Nehar Chandra Shil,

Proprietor of Sri Sri Laxmi Stores,

P.O. Usha Bazaar, P.S. Airport,
Agartala, West Tripura.

 

… … … … … Appellant/Opposite Party.

 

 

1. Miss Madhurima Dey,

D/o Sri Manik Chandra Dey,

C.I.S.F. Complex, Airport Quarter No. B – 79,

P.O. Usha Bazaar,
Agartala, West Tripura

•  

… … … … … Respondent/Complainant.

 

 

Present

Mr. Justice U.B. Saha,

President,

State Commission, Tripura.

 

Mrs. Sobhana Datta,

Member,

State Commission, Tripura.

 

Mr. Narayan Chandra Sharma,

Member,

State Commission, Tripura.

 

 

 

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

For the Respondent:                                       Mr. Sumit Debnath, Adv.

Date of Hearing & Delivery of Judgment:     12.03.2018.

 

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 10.10.2017 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 (hereinafter referred to as opposite party) to arrange repairing of the mobile phone of the respondent (hereinafter referred to as petitioner) positively as it was damaged within the warranty period and also to pay Rs.5,000/- to the petitioner for deficiency of service and unfair trade practice. The direction is to be followed within two months.

2. Heard Mr. Kanu Lal Das, Ld. Counsel appearing for the appellant-opposite party as well as Mr. Sumit Debnath, Ld. Counsel appearing on behalf of the respondent-petitioner.
3. Brief facts needed to be discussed are as follows:-

The petitioner, Miss Madhurima Dey, had purchased one mobile phone OPPO NEO-7 from the Opposite party 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 in the name of the petitioner 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 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 petitioner 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 petitioner 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 appeared and filed written statement denying the claim. It is stated that the mobile phone in question was purchased by the father of the petitioner in her name and accordingly, the opposite party issued cash memo in the name of the petitioner for the said mobile. Thereafter, opposite party along with the father of the petitioner went to the Authorized Service Centre, namely, Pacetel Systems Private Ltd. at Shanti Para, Agartala wherein the said mobile phone was inspected by the authorized service centre and 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 being the seller of the said mobile phone.
5. Petitioner 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.
6. On the other hand, the opposite party produced reply to 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, Sri Sujan Shil also submitted his statement on affidavit.
7. 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 petitioner for purchasing a new one and also to pay Rs.10,000/- for deficiency of service, in total Rs.19,500/-. Petitioner is to give back 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.
8. Being aggrieved by the aforesaid judgment dated 03.05.2017, the appellant-opposite party 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.
9. 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 Ld. 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 impugned judgment.
10. Being aggrieved by the impugned judgment dated 10.10.2017, the appellant-opposite party filed the instant appeal. 
11. Mr. Das, Ld. Counsel while urging for setting aside the impugned judgment submits that the learned District Forum in Paragraph-5 of the impugned judgment stated that the mobile phone sent to the Guwahati without visiting the local service centre is contrary to the evidence on record. He further submits that neither the O.P.W.1 the appellant-opposite party nor the O.P.W. technician Tapas Roy stated in their evidence that at any point of time, the mobile phone in question was sent to Guwahati. He further submits that this Commission in its judgment dated 17.07.2017 specifically held that the mobile should be sent to an expert by the District Forum on submission of the same by the petitioner or the District Forum may call the technician/expert who examined/inspected the mobile phone in the service centre, but the fact remains that after the case was remanded by this Commission to the District Forum, the mobile was not sent to the expert though he was examined. He further submits that though the petitioner filed an application before the learned District Forum on 24.08.2017 for adding the service centre as one of the party, but the learned District Forum did not pass any order on the said application and held that there is unfair trade practice and deficiency in service by both the service centre and the seller which is improper and unjust. He has finally contended that when the learned District Forum held that both the service centre and the seller committed unfair trade practice and deficiency of service, but the direction was given/award passed only against the seller for which itself the judgment is liable to be set aside.
12. Mr. Debnath, Ld. Counsel appearing for the petitioner fairly submits that though the petitioner filed a specific application for adding the service centre as a party, but the learned District Forum did not consider the said application and even no order was passed regarding the said application on 24.08.2017. Thus it would be proper for this Commission to set aside the impugned judgment and remand the case again before the learned District Forum for adding the service centre as a party and decide the matter afresh after being re-examined the technician Sri Tapas Roy on the basis of his affidavit-in-chief, if any filed.
13. We have gone through the impugned judgment and also the order dated 24.08.2017 passed by the learned District Forum. It appears from the record that admittedly an application was filed by the petitioner for addition of service centre as a party in the case, but the learned District Forum did not pass any order either accepting or rejecting the prayer of the petitioner. It also appears from the order dated 17.08.2017, the learned District Forum asked the petitioner to take step in respect of making manufacturer as party, if considered necessary, but fact remains that the petitioner did not make any prayer for making manufacturer as a party. We have also gone through the impugned judgment. It is not clear to us that on the basis of what evidence, the learned District Forum in Paragraph-5 of its judgment stated that the mobile phone sent to Guwahati without visiting the local service centre.

Considering the above facts and circumstances, we are of the view that the learned District Forum held in the impugned judgment that there is unfair trade practice and deficiency in service by both the service centre and the seller without considering the application of the petitioner dated 24.08.2017 and also without impleading the service centre as a party which itself is unjust and improper. Therefore, we are constrained to set aside the impugned judgment and the matter is remanded back again to the learned District Forum to decide the application of the petitioner dated 24.08.2017 first and 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 petitioner.

In the result, the appeal is partly allowed. No order as to costs.

Office is directed to release the statutory deposit as deposited by the appellant on submission of proper application.

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

 

 

 

MEMBER State Commission Tripura

MEMBER State Commission Tripura

PRESIDENT State Commission Tripura