Orissa

Rayagada

CC/36/2017

Sri Yeswant Raju - Complainant(s)

Versus

M/s Kapilas Cyber Solutions - Opp.Party(s)

Self

28 Jun 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 36 / 2017.                                         Date.   28    .    6   . 2018.

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                                      President

Sri GadadharaSahu,                                                          Member.

Smt.PadmalayaMishra,.                                                  Member

 

Sri Yeswant Raju, C/O: Kiran Kumar, Indira Nagar, 3^rd. lane, Po/ Dist: Rayagada, State:  Odisha.                                                                                                                             …….Complainant

Vrs.

1. The Manager, M/S. Kapilas Cyber solutions,   Rayagada (Odisha). 765  001.
2. The Manager, Samsung Service Centre, New Colony, Rayagada(Odisha).
3. The Manager, Samsung India Electronics Pvt. Ltd., A-25, Ground Floor, Front Tower, Mohan co-oprative Industrial Estate, New Delhi- 110044.
4. The  Manager, Samsung India Electronics Pvt. Ltd., B-1, Sector-81, Phase-2, Nodia Dist, Gautam Budha Nagar, Utter Pradesh.     …  Opposite Parties.

For the Complainant:- Self.

For the O.P No.1:- Set exparte.

For the O.Ps 2 to 4 :- Sri K. C. Mohapatra and associates, Bhubaneswar.

JUDGMENT

The  present disputes emerges out of the grievance raised in the  complaint petition filed by the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for  non refund of mobile  price  a sum  of Rs. 56,000/- which was found  defective   during warranty period.

 

On being noticed  the O.P  No.1   neither entering in to appear before the forum nor filed their  written version inspite of more than  05 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.P No.1.  Observing lapses of around 1 year  for which the objectives  of the legislature of the C.P. Act going to be destroyed to the prejudice of the interest of the complainant.  Hence after hearing  the  counsel for the complainant set the case  exparte against the O.P. No.1. The action of the O.P No.1  is against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.P. No.1  set exparte  as the statutory period  for filing of  written version was over to close the case with in the time frame permitted by the C.P. Act.

On being noticed the O.Ps  2 to  4 appeared through their learned counsel and filed joint  written version refuting allegation made against them.  The O.Ps 2 to  4 taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.Ps 2 to  4. Hence the O.Ps 2 to  4 prays the forum to dismiss the case against  them  to meet the ends of justice.

 

 Heard arguments from the learned counsel for the    O.Ps and from the complainant.    Perused the record, documents, written version  filed by the parties. 

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties touching the points both on the facts  as well as on  law.

                                                                    FINDINGS.

From the records it reveals that, there is no dispute that the  complainant had purchased a mobile set Model No. Samsung  Galxy S 7 edge bearing IMEI No.357327/07/035592/6, 357328/07/035592/4 from the O.P.  No.1  by paying a sum of Rs. 56,000/-  with Retail Invoice No. 9511   dt. 30.03.2016 with  one year warranty( Copies of the invoice is in the file which is marked as Annexure-I). But unfortunately after  few months  of its use  the above  set found defective and not functioning  i.e. such as  touch screen not working properly and hanging problem, battery is discharging automatically and giving heat to the product and also to  the charger   along with other problems. The complainant complained to  the O.P No.2 (service centre)  for necessary repair. Even such service  the above defects were persisting in the said set. So the complainant  intimated the same to the O.P. No.2 for replacement or refund of the price of the mobile set   in turn the OPs paid deaf ear.   The complainant further approached the O.Ps for return the money which he spent but for no use.  Hence this case.

            On perusal of the record  it is revealed that  the fact of the  purchase  of Mobile set    is not denied by the  O.Ps.  It is admitted position the complainant having  purchased   above goods for  consideration  having the warrantee for one year.

It is admitted position of law that when   a  goods sold  by the  manufacturer has under gone  servicing   the complainant is entitled to thoroughly  check up  of the mobile set   and   to  remove   the defects  of   the above set  with fresh warrantee .

Coming to the merits of the case the complainant had purchased the Mobile set  from the O.P No. 1   on payment of consideration  an amount of Rs. 56,000/- on Dt. 30.03.2016 (copies of the  retail  invoice) marked as Annexure-I.  On perusal of the record we observed  the complainant  after using  some months for rectification of defects handed over the same to the O.P. No.2 (service centre) for repair.

The  O.P. 2 to 4  in their written version  para-2 contended that the complaint  is not maintainable since it is based upon false, frivolous and vexatious pleas. The complainant  has neither adduced any evidence nor submitted  any material particulars so as the mobile phone of the  complainant has defect or regarding the manufacturing  defect of his mobile phone or regarding the deficiency in service and unfair trade practice committed by the parties.  Hence the complaint of the complainant liable to be dismissed.  

The  O.P. 2 to 4  in their written version  para-7 contended that it is clearly reflects from the face  of the complaint  of the complainant  that, the complainant  has not come  with clean hands to the forum. He has suppressed all the real  & true facts regarding  his mobile phone. The complainant has  falsely  made the peculiar allegations  against the O.Ps without any proof. The complainant  better knows, what type of defect arose  in his mobile phone and why he has produced his mobile  phone before the O.P. No.2 for two times for its repair? If the O.P. No.2 has unable to remove the defect from the alleged mobile phone  and also the  O.P. No.2 has submitted that the alleged mobile phone  has inherent  manufacturing  defect, they why the complainant has paid Rs.14,135/- to  O.P.  No.2  on Dt. 6.2.2017?  Further if the complainant has admitted  that due to defect, his mobile phone was referred to the O.P. No.2 for two times, they why he has not mentioned the date of the refer? And why he has  not filed  those two job sheets before the forum regarding repair?  He has  only  mentioned on Sl. No.2 of the document  relied upon  of the complaint but filed the two customer information slips. Hence it is crystal clear that, the complainant has knowingly avoid to filed the job  sheets before forum because of which clearly reflects the real defects and the repair history of the mobile phone.  So it is not possible to  believe the complainant only  basing upon  simple submission of facts on the complaint. All the facts  on the complaint are suspicious, unbelievable and quite impossible. The law well settled that, the burden  burden of proof lies with the complainant, he has to prove his case beyond all  reasonable doubt, otherwise  the complaint will treated as false, misconceived, frivolous and vexatious. Thus the complaint  is liable to dismissed on this ground only. 

The  O.P. 2 to 4  in their written version  para-8 contended that in the present case the complainant has purchased the Samsung Galaxy S-7 edge mobile phone from the O.P. No.1 on Dt. 30.3.2016 with one  year warranty   from the date of purchase. After purchase the complainant has approached the  O.P.No.2 (Authorised service centre of O.P. No. 3 & 4) on Dt. 22.6.2016 for defect of his mobile phone.  Thereafter the Service Engineer verified the mobile phone  and rectified the defect by replacing the  A/A Tape back glass of said mobile  set on same day, then  one Ajaya Kumar has received  the mobile phone  of the complainant on 23.6.2016   in good  running condition  form the O.P. No.2.  Thereafter  one month prior  to expire  of the warranty of said mobile phone, one K.Kiran Kumar  has again approached  the O.P. No.2 on Dt. 6.2.2017 for the broken  of the touch screen  of his mobile phone.  So the O.P. No.2 has received the damage mobile phone  in out of warranty and delivered the   mobile phone  in good running condition  on same day after replacing  the broken touch screen and A/S Tape Back Glass in subject to payment of cost  of the said spares. Hence the complainant has paid Rs. 14,135/- towards  replace of the damage spares. After receive of said 2^nd. Repair, the complainant has neither made any allegation before  the O.P. NO.2 nor before the O.P. No. 2 & 3 regarding any problem/defect of his mobile phone till today. Hence how the complainanthas filed  this complaint before hon’ble forum against the O.Ps without any unfair trade  practice or any deficiency  of service committed by them? These O.Ps have no knowledge regarding any further defect of said mobile  phone of the  complainant.  Then how the complainant has suffered mental agony and financial loss.  Therefore the complaint case is liable to be dismissed on this ground alone.

The  O.P. 2 to 4  in their written version  para-9 contended that the complainant has suppressed all the real facts  of his mobile phone. It is quite  impossible  and misconceived fact  that, the O.P. NO.2 has unable to  remove the defect of the mobile phone of the complainant and stated that the above set  has inherent manufacturing defect.  The complainant has neither  narrated, in which process or on which way he sustained and suffered the same nor produced any evidence regarding  the  same.   It cannot possible to admit the same only simple submission of the complainant.  All  the allegations  of the complainant are balled lie.  If he has no proof whatsoever of the claims made by  him. Hence the complaint is liable to be rejected on this ground alone.

 

The  O.P. 2 to 4  in their written version  para-10   has  mentioned  another citation  in the case of Bajaj Tempo Ltd Vrs. Shri  Ajwant Singh & Another reported in  2014(3) CPR- 724  N.C.,  the  Hon’ble National Commission opined that “Manufacturing defect must be proved by expert opinion”.

The  O.P.  2 to 4  in their written version  para-11   has  mentioned citation i.e. Maruti Udyog Ltd. Vrs. Susheel  Kumar Gabgotra and others (AIR-2006)S.C 1586 where in the Hon’ble Supreme Court observed “Warranty conditions clearly refers to replacement of defective part not the  car – Not a case of silence of a contract of sale of warranty”. The O.P. No. 1 & 2  vehemently contended that in this case there is no defect in the  mobile set of the complainant, but the complainant has filed this fabricated complaint only to  tarnish the reputation of the O.Ps 2 to 4   and to secure the unlawful gains from the O.Ps.

 The  O.P.  2 to 4  in their written version  para-12   has  mentioned citation in the case  of   Stero  Craft   Vrs.   Monotype India  Ltd., New Delhi reported in 2000 NCJ 59(SC) it was held that when terms of warranty does not cover refund or replacement, then consumer can not claim either  replacement or refund during  or after the lapse of warranty period. The terms and conditions of the warranty  of the O.P No.3 are reflected in the warranty  card.  The warranty conditions refers to replacement of spare if the defective spare  satisfy the terms and conditions of the warranty. Therefore the prayer of the complainant can not be granted in favour of the complainant. 

            On the basis of the pleadings of the parties, the sole question of determination is  Whether  the complainant is entitled  relief    made by him ?

On perusal of the documents it is revealed that despite several adjournments taken  by the complainant for the purpose of filing relevant papers, the complainant failed to produce any documents in support of his claim.  When material  facts  pleaded by the complainant in support of his claim have been denied by the  O.P. No.2 to 4  the complainant is duty bound   to substantiate his claim by producing relevant documents there for, but he has failed to do so.  On the basis of mere pleadings of the complainant, which is no evidence, no positive finding can be recorded in regard to his claim. Hence, we are constrained to hold that the petition made by the complainant vis-à-vis  non satisfaction of his relief  is  devoid of any merit.

This forum observed  evidence on record it is concluded that the  complainant miserably  failed to establish his claim before the forum  and hence  the petition is dismissed against the O.Ps. 

In the present case there is no material placed on record to show negligence from the part of this answering O.P.  Here in the instant case the complainant has  not even proved the losses suffered by him

This forum completely agreed with views taken  and the documents filed by the O.Ps in  the present case. Hence  this forum  feel the complainant is not entitled for  any  relief sought for  from this forum and  shall   liable to be dismissed. However the O.Ps are directed to rectify the defects  of the above mobile set free of cost  if the complainant  approached. to the O.Ps  to rectify the defect of his mobile  set  and shall provide all sort of after sale service to the complainant as per the terms and conditions of the  warranty of the afore said  mobile set.

Thus,  it    becomes clear that even on merits, complainant is  not entitled to  any claim.

Hence  to  meet the  ends of justice, the following order is passed.   

                                                                        O R D E R

            In  resultant the complaint petition  stands  disposed off on contest against the O.Ps.

            There is  no order as to cost and compensation.

                       

Dictated and corrected by me.

            Pronounced in the open forum on       28th.       day  of    June, 2018.

 

MEMBER                                               MEMBER                                                                                              PRESIDENT