This appeal is directed against the final order dated 22/4/2019 delivered by the Ld. DCDRF, Siliguri in reference to consumer case no. 64/S/2018. The fact of the case in brief is that the appellant/compl9annt A Poddar has purchased a Nokia N8 Mobile Set through his friend one Biswajit Dutta on 13/11/2017 by paying consideration price rupees 36,990 from respondent no. 1 M/S DK Enterprise. During the warranty period, the mobile set started dis-functioning with various problems. Then the complainant Amrit Poddar rushed to said seller of the Mobile set M/s Dk Enterprise and brought his knowledge about the defects of the said mobile set. Then the owner of DK Enterprise advised the complainant to handover the handset to the OP no. 2 M/s The planet at Siliguri vide Job Sheet no. 596504886/1805040/004. The OP no. 2 after received the said handset form the complainant for repairment. But the said service centre could not properly repair the defects of the said handset and for that reason the complainant claimed damages from the OP no. 1 & 2 for not repairing the handset in due manner on 24/5/2018. But no response was there on the part of OP no. 2 and OP no. 1. So, he was compelled to register a consumer complaint Under Section 12 against the seller and service provider of the said handset and wanted the relieves as enunciated in the consumer Protection Act, 1986. The consumer complaint was registered before the Ld. DCDRF, Siliguri and notice was issued upon OP no 1 and OP no.2. Neither the OP No. 1 nor the OP no. 2 has contested the case by filing their version and as such the Ld. Forum has taken up the case for ex-parte hearing. After hearing the complainant Ld. Forum has held that the original purchaser of the mobile set was one Biswajit Dutta and not the complainant and for that reason, the complainant was not a consumer as per defination of consumer Protection Act and for that reason, the consumer complaint was dismissed. Being aggrieved with this order, this appeal follows on the ground that the Ld. Forum has mis appreciated the facts and circumstances of the case and the findings of the Ld. Forum is defective, irregular and not vested with law. The appeal was registered in due time and it was admitted on its own merit and the notice was issued against the OP no. 1 and OP no. 2 who were the seller and service centre of the said Mobile Set. The OP NO. 1 seller of the said handset DK Enterprise has recorded the presence through Ld. Advocate and contested the appeal. The service of notice of appeal could not be secured as the Postal Authority found “Address Left”. So, the appeal was heard in presence of the Ld. Advocate of the appellant as well as Ld. Advocate of respondent no. 1.
Decision with reasons,
Admitted position is that one Biswajit Dutta purchased the said mobile set through the money of Complainant Amrit Poddar who has actually purchased the mobile set through Biswajit Dutta and the Tax Invoice was issued in the name of Biswajit Dutta who practically and physically purchased the said Mobile Set from DK Enterprise on behalf of complainant.
Subsequently, said Biswajit Dutta has issued a declaration that he has purchased the said mobile set on behalf of his friend Amrit Poddar who has paid the said money to him for purchasing the said mobile set. Ld. Advocate of the respondent during the course of argument submits that the Ld. Forum has rightly observed that Biswajit Dutta was the actual consumer who has purchased the said mobile set from the respondent no. 1 while Biswajit Dutta did not come before the Ld. Forum to prove that he has purchased the said Mobile set on behalf of the Complainant Amrit Poddar. So according to him the order of Ld. Forum dose not suffer from any irregularity. Ld. Advocate of the appellant counters this argument to the score that the actual user of the said Mobile set is the complainant and while the Mobile set was started dis-functioning the complainant himself has approached the saler for remove the defects and he deposited the said mobile set to OP no. 2 at the instance of the respondent no 1 who issued the Job Sheet bearing no. 596504886-180504-004 dated 4/5/2018 in the name of customer Amrit Poddar and this document (Annexure-C) which was overlooked by the Ld. Forum during the adjunction of the instant consumer dispute.
After hearing both side it comes to the knowledge of the Commission, that the definition Consumer enunciated in Section 2 (1)(d) of CP Act, 1986, the following persons are to be read as consumers.
- Person buying any goods for consideration and consideration has been paid in full or promised or partly paid or partly promised.
- Person buying any goods under any system of deferred payment.
- Any user of such goods which have been purchased by the person referred in clause (1) or (2) when such use is made with the approval of the buyer.
So, here in this case, according to the appellant he was the actual buyer who has purchased the same through Biswajit Dutta and Biswajit Dutta has clearly established the matter by executing a document called as declaration (Annexure-B). Rather the complainant/appellant is the user of the said mobile set which is clearly established from the job sheet executed by the respondent no. 1(Annexure-C).
Therefore, there is no hesitation to hold that Amrit Poddar is a genuine consumer as per provisions of Section 2 (1)(d) of Consumer Protection Act, 1986 and in any way, his right accrued by the provisions of the Act, cannot be curtailed. On the other hand, the entire adjudication process was held in absence of respondent no. 1 who has contested the appeal before this Commission. So, he should also get an opportunity of hearing in the process of adjuration. So the order of Ld. Forum appears to be irregular and liable to be set aside.
Hence, it is,
Ordered,
That the appeal be and the same is allowed on contest against respondent no.1 and ex-parte against respondent no. 2. The final order delivered by the Ld. DCDRF, Siliguri dated 22/4/2019 in C case no. 64/S/2018 stands set aside.
The case is remanded back to the Ld. DCDRF, Siliguri to re-hear the case after giving the opportunity to respondent no. 1 to contest the case by filing WV within 30 days from the date of receiving the copy of this order of appeal by him.
The liberty also to be provided to the complainant to adduce the evidence of Biswajit Dutta who has executed the Annexure-B and the Ld. DCDRF, Siliguri also shall has to adjudicate the case in accordance with law after giving full opportunity to both parties to place their respective cases before the Ld. Forum and the entire process of adjudication should be completed within 3 months.
Let a copy of this order be communicated to the Ld. DCDRF, Siliguri and also to be supplied to the parties free of cost.
