Presented by Miss R. Pattnayak, President.
Sri Kamal Jhawar has filed this complaint U/S-12 of the Consumer Protection Act-1986, praying there in that, the Opposite parties be directed :-
To either replace the Nokia Mobile hand set with a new one or refund the money of Rs.4,000/-(Rupees four thousand)only paid by the Complainant towards the value/price of the said mobile set with interest @ 24%(twenty four percent) per annum till the date of actual payment.
To saddle the Opposite Parties with special and extra ordinary costs as deemed fit, so as to deter them from adopting such malpractice in future.
To pay a sum of Rs. 5,000/-(Rupees five thousand)only as compensation for mental agony, physical harassment and financial loss.
To pay litigation cost.
To pass order in favour of the Complainant as deemed fit and proper in the facts and circumstance of the case.
In brief, the case of the Complainant is that, on Dt.24/10/2011, he has purchased a mobile set bearing IMEI No. 357005045287214, model Nokia C2-02 phone from the retailer i.e. M/s Bindal Mobile's, Main Road, Bargarh for Rs. 4,000/-(Rupees four thousand)only for his personal use.
At the time of purchase of the said mobile set, the Bill/Invoice No. 1262 was issued by M/s Bindal Mobile's to the Complainant showing purchase of the Mobile.
According to the Complainant, after using the Mobile set he found that, the set is stopped working and is not functioning properly. So, the Complainant approached the Opposite Party No.1(one) for its repairing but Opposite Party No.1(one) instead of solving the problem advised the Complainant to go to the Nokia care center situated at Bargarh i.e. Opposite Party No.2(two). On being advised by the Opposite Party No.1(one) the Complainant has deposited the said mobile set with the Opposite Party No.2(two) on Dt.21/09/2012, but the Opposite Party No.2(two) instead of solving the problem kept the mobile set till Dt.02/10/2012 in his custody without curing the fault and without providing the requisites service there of and returned the mobile set on the plea that the mobile was completely out of order and it is not repairable which is illegal, because the Mobile is being defective during its warranty period.
It has been pleaded by the Complainant that despite his request to Opposite Party No.1(one) either to repair or to exchange the Mobile set, the Opposite Party No.1(one) pay no heed and threatened him not to come again for the same matter.
Finds no other way the Complainant has filed this case seeking the reliefs mentioned above on the grounds that the Opposite Parties are violating the terms and conditions of the warranty issued by the company. On the other hand, the Complainant suffered loss, mental agony and physical harassment without getting any benefit or utility by this illegal act of the Opposite Parties.
The Complainant has filed the following documents to prove his case along with the written argument and Citation of Hon'ble State Commission ,Cuttack
Xerox copy of Invoice bearing No.1262 Dt.24/10/2011 issued by the Opposite Party No.1(one).
Xerox copy of Warranty Card.
Notice were duly served on the Opposite Parties. SR back from them and the case was posted for appearance and version by them Opposite Parties but Opposite Party No.2(two) did not appeared except Opposite Party No.1(one). Hence on dated 08/01/ 2013, Opposite Party No.2(two) set ex-parte. Opposite Party No.1(one) appeared on Dt.25/02/2013 and submitted his version on Dt.02/04/2013.
In his version, the Opposite Party No.1(one) while denying all the allegation raised by the Complainant has admitted the purchase of the Mobile set from him and the issuance of a bill on Dt.24/10/2011. It also admitted by him that he is the authorized retail dealer of Nokia to sale it's products in Bargarh Town and on Dt.20/09/2012 the mobile set was not functioning and he advised the Complainant to take the Mobile set to Nokia Care center. The sales policy of Nokia company is very clear as would be revealed from the Nokia Manuals book that any defects or non-functioning of a Nokia Mobile Set within the guarantee period can be repaired or get service in nearest authorized Nokia Care center if defects of any Nokia Mobile set will arise. The purchase bill issued by him will also show the same thing as it is very clearly mentioned there in a note that service of the Mobile Set can be avail from nearest service center. He further submitted that at the time of purchase the Opposite Party No.1(one) has also told the Complainant to get the set serviced at Nokia Care center if any defect in the set occurred.
The Opposite Party No.1(one) further submitted that the case is not maintainable due to non-joinder of proper party and he pray for dismissal of the complaint with compensating cost since the complaint petition is seems to be frivolous one as there is no negligence in rendering service to the Complainant.
The Opposite Party filed the Original manual books of Nokia C2-02.
Perused the complaint petition, written version,Argument, Citation and documents available on the record.
Admittedly the Mobile set in question was purchased on Dt.24/10/2011 from the Opposite Party No.1(one) vide bill No.1262. The purchase of Mobile set by the Complainant from Opposite Party No.1(one) also proved by the documentary evidence i.e. copy of retail invoice. Opposite Party No.1(one) also via his version accepted the purchase of Mobile set from him / also the issuance of bill and also non functioning of Mobile Set. Thus the facts admitted need not be proved again.
The Opposite Party No.1(one) during argument submitted before the Forum that, the bill is a forged one and it is not issued by him but in his version he has not mentioned such things. So, the contention of Opposite Party No.1(one) that the bill copy is a forged one will not be taken into consideration as it is beyond his pleading.
Another thing raised by the Opposite Party No.1(one) is that the case is not maintainable due to non-joinder of proper party.
No doubt the plea of the Opposite Party No.1 (one) that the case is bad for non-joinder of proper party who is the manufacturing company is true but for such minor reason we shall not go for dismissal of the case. When the authorized dealer of the company who is already included as parties in this case, non-impleadation of manufacturing company is not so serious in nature when part played by manufacturing company in the context is well disclosed by the present Opposite Parties in their written statement. The Complainant also not raised any allegation in the contents of the complaint petition that there is any manufacturing defect in the mobile set. Strict to the rules and regulations, itself not bad but strong attachment to them and blind attachment to them certainly kills the efficiency of work. A proper party is one in whose absence an effect order can be passed but whose presence is necessary for a complete and final decision on the question involved in the proceeding. There is an essential distinction between a necessary party and a proper party. In absence of a necessary party no decree can be passed while in absence of a proper party, a decree can be passed. His presence however, enable the court to adjudicate more “effectually and completely”. A necessary party is one whose presence is indispensable to the constitution of the case. More over for the non inclusion of a proper party, the consumer/ purchaser can't be debarred from his right. So the Opposite Parties's contention in this regards is not sustainable.
The O.P No. has taken the plea that as he is a dealer of the Nokia company and he is not the manufacturer therefore he has no liability for repairing or exchange of any product sold by him. On this point, the complainant has rely on the decision of Hon'ble State Commission, Cuttack, Odisha reported in 1994(III) CPJ 338 Balchand Chhabria Vrs Sudhansu Bhusan Panda where the Hon'ble court has held that the seller is liable to replace the defective goods.
It is seen from the complaint petition that Complainant has placed his grievance before the Opposite Party requesting him for repair but the Opposite Party No.1(one) instead of solving the problem refused on different pleas. But the Forum feel that it is definitely the responsibility of the Opposite Party No.1(one) from whom the Complainant has purchased the Mobile Set and he has the responsibility to assist the Complainant to proceed with the processes when grievance occur. The seller of any product is liable and accountable to the consumer for sale of any product. Because a purchase occurred with some hope and aspirations which are not fulfill in the case of the Complainant and the purchaser suffered from purchasing from the Opposite Party No.1(one). In the event the consumer/purchaser loose his natural right
It is also found from the document filed by the Complainant that, the set was under warranty period. The Opposite Party No.1(one) in his version para-4(four) has admitted that he has advised the Complainant to go to the NOKIA CARE CENTER i..e. Opposite Party No.2(two) for availing service. The Complainant as per instruction made in the USER's GUIDE appear before the Opposite Party No.2(two) and deposited the faulty mobile set for its rectification but the Opposite Party No.2(two) no way came to the rescue of the Complainant and simply avoided his liability. The Opposite Party No.2(two) neither contested in this case to counter that there is any defect in the said mobile. They have also not filed their version and also failed to adduce any evidence before the Forum, that, there is no defect in the said phone .. This clearly shows that the Opposite Party No.2(two) will fully disobeying the orders of the court. Hence the allegation made against him i.e against O.P. No.2 by the complainant is accepted.
The defects occur in the said Mobile which the Complainant made aware to the Opposite Parties within the warranty period, which was neither replaced nor rectified by the Opposite Parties in due course amounts to utter deficiency in service and unfair trade practice on the part of the Opposite Parties to the customer.
Due to these act and attitude of the Opposite Parties and intentional delay to rectify the defects, the Complainant has not only suffered mentally but also get financial loss and physical harassment and the purpose of purchasing the Mobile Set by him has also been frustrated.
Hence the Opposite Parties are negligent in duty and deficient in providing proper service to the customers. In this circumstance the complaint petition is allowed.
- O R D E R -
The Opposite Parties are directed, jointly and severally, to pay the Complainant Rs.4,000/-(Rupees four thousand)only towards the cost of the Mobile Set and Rs. 1,000/-(Rupees one thousand)only towards compensation for negligence and deficiency in service. This order be complied by the Opposite Parties within one month from the date of Order, failing which the awarded amount shall carry 12%(twelve percent) per annum till the actual payment.
The Complainant is directed, after receiving the awarded amount from the Opposite Parties immediately return the defect Mobile set to the Opposite Parties.
The complaint is allowed and disposed of accordingly.
Typed to my dictation
and corrected by me.
Sd/- Sd/-
I agree, I agree,
( Miss Rajlaxmi Pattnayak) ( Sri Pradeep Kumar Dash)
P r e s i d e n t. M e m b e r.
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