DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: BHADRAK
Dated the 28th day of August, 2019
C.D Case No. 34 of 2017
Present 1. Shri Raghunath Kar, President
2. Shri Basanta Kumar Mallick, Member
3. Afsara Begum, Member
Sri Prasanta Kumar Mahapatra
At: Santhia (Nilakanthapur),
Po/Ps: Bhadrak (T),
Dist: Bhadrak
……………………. Complainant
(Versus)
1. The Concerned Authority, M/S New Lokapriya Telecom
At: Nayabazar,
Po/Ps: Bhadrak (T),
Dist: Bhadrak
2. The Concerned Authority,
Samsung India Electronics Pvt. Ltd.,
At: 25 Ground Floor, Front Tower,
Mohan Co-operative Industrial Estate,
New Delhi
3. YMS Mobitech Pvt. Ltd.
278, 7th Floor, Block- A, Corenthum Towers,
Sector- 62, Noida- 201301
4. Cell World, (Authorized Samsung Service Center)
At: Matha Sahi, Naya Bazar,
Po/Ps: Bhadark (T),
Dist: Bhadrak …………………………..Opp. Parties
Counsel For Complainant: Sri S. Tripathy & Others, Adv
Counsel For the OP No. 1: Sri S. Nayak & Others, Adv
Counsel For the OP No. 2: Sri M. N. Sharma, Adv
Counsel For the OP No. 3 & 4: Set Ex-parte
Date of hearing: 31.08.2018
Date of order: 28.08.2019
RAGHUNATH KAR, PRESIDENT
This dispute arises out of the complaint filed by the complainant alleging deficiency of service and unfair trade practice against the O.Ps. The complainant purchased a Samsung J5 G4 Mobile phone from the OP No. 1 bearing IMEI No. 359593074134272, Battery No. AA2H513hs/2-B, Charger No. R37H69M63242RC3 for Rs 11,390/- on dt. 05.08.2016. At the time of purchasing of the said mobile the complainant obtained warranty card from the OP No. 1 for one year but after lapse of three months the display board was blocked. The complainant made the OP No. 1 and informed him about the said matter the OP No. 1. He assured the complainant to take the defective mobile phone and promised to give a new Samsung mobile phone within a month but after lapse of one month the OP No. 1 denied to give a new mobile phone to the complainant on 29.09.2016. The OP No. 1 sent the defective mobile phone to the OP No. 3 for repairing. The OP No. 3 dispatched the said mobile phone to the complainant. The complainant received the said mobile and paid Rs 500/- towards the defective mobile phone when the complainant found the said mobile, he found that the said mobile set was remaining as usual. The O.Ps have not repaired the same. It was still in defective position. The complainant once again went to the OP No. 1 and requested to repair the same. The OP No. 1 assured him repaired the said mobile phone in the Samsung service center. The complainant also met the staff of the OP No. 2 seeking for the redressal of his grievance. The OP No. 2 avoided the complainant and had taken false please. Subsequently the complainant obtained no relief from the OP No. 1 & 2 and sustained mental panic. The complainant also went to the OP No. 4 for the repairing of said mobile set. The OP No. 4 received Rs 7,300/- from the complainant for repairing charges on 04.02.2017. The OP No. 4 also cheated the complainant. The cause of action of this case arose on 03.11.2016. Hence the complainant has sought for the reliefs, such as follows.
1. The O.Ps be directed to hand over the complainant a new Samsung J5 4G Mobile phone.
2. The O.Ps be directed to refund back Rs 7,300/- which was received by the OP No. 4 to the complainant.
3. The O.Ps be directed to refund Rs 500/- to the complainant.
4. The O.Ps also be directed to refund Rs 50,000/- to the complainant for deficiency of service and cost of the litigation.
The following documents have been filed by the complainant (Xerox copies).
1. Retail invoice on 05.08.2016 vide No. 307 in favour of Prasanta Kumar Mohapatra issued by OP No. 1.
2. Vat invoice.
All the O.Ps appeared in this Forum but the OP No. 3 & 4 have been set ex-parte and filed no written version. The OP No. 1 & 2 have filed their respective written versions. According to the OP No. 2 this complaint is not maintainable and liable to be dismissed because the complainant is not a consumer according to the CP Act. According to him the present complaint is concocted, frivolous and vexatious and is liable to be dismissed as per Section- 26 of CP Act. The complainant is wholly misconceived, baseless, false and unsustainable in law. The OP No. 1 has denied all the allegations made by the complainant in his complaint. According to him the fact is that the OP No. 1 is authorized dealer of Samsung, Nokia, Motorola, Glonu, Vivo and Appo mobiles and used to sell those mobiles to the customers having its show room at Bhadrak which is named & styled as M/S New Lokpriya Communication situated at Nayabazar, Bhadrak. This OP used to purchase the same from the distributor. The complainant purchased a Samsung JR 4G mobile phone from this OP bearing IMEI No. 359593074134272, Battery No. AA 2H513hs/2-B, Charger from this OP knowing well that the product is of a reputed company like Samsung. This OP has also supplied the warranty card to the complainant. Where in details of term and conditions have been mentioned. At no point of time this OP neglected to provide proper service to the complainant. To provide proper service i.e. repair, replacement, etc. the company has set up different customer care centers through the OP No. 4. So, if any problem occurs in the mobile after sale, then it is to be repaired by OP No. 4 as per warranty condition. This OP is no way concerned with the repair, replacement of the same. It is also learnt by this OP from the complainant that he has insured his mobile with OP No. 3. So this OP also advised the complainant to lodge claim as per insurance policy before OP No. 3 and also to repair or replace the mobile by OP No. 4 who is the authorized service center. That this OP has provided proper service to the complainant and no way deficient in his service to a valued customer like complainant. Hence the OP No. 1 has prayed for dismissal of this complaint.
In the same way the OP No. 2 has filed his written version as follows that. Answering OP No. 2 has denied all the allegations made by the complainant contained in the complaint. Except those, which are specifically admitted herein after in this written statement, and nothing stated in the complaint should be deemed to be admitted merely because the same is not specifically traversed. It is also submitted that, anything stated in the complaint contrary to or inconsistent with what is stated in the present written statement be deemed to be expressly denied. The present complaint, filed by the complainant is an abuse of process of law and is not maintainable as the complainant has suppressed the material facts. This OP herein relies on the judgment of the Hon’ble National Commission in the case K. L. Arora Vs. Groovy Communications (2002) 3 CPF 92 (NC) for the necessity of expert evidence to prove the submissions of manufacturing defects in the mobile made in the complaint. The OP craves leave to file an affidavit of the service engineer, being the expert to prove that the complainant allegations are baseless and unjustified. In this case absence of an export report the complainant cannot prove his case. It is submitted that by the OP No. 2 the complaint makes out no ground for relief under the provisions of Section- 14 of the CP Act 1986. The onus lies on the complainant to show that the reliefs as contemplated under Section- 14 can be given for the defect in goods supplied or deficiency in service provided to the complainant. In the present case, it is crystal clear that there has been no manufacturing defect in the goods purchased by the complainant and/or deficiency in service on the part of the answering OP. The answering OP has no control or interfere in the business of the complainant. Therefore, the OP No. 1 may right respond on the contents of Para No. 1 & 2. It is further submitted that the answering OP role is limited up to the product quality and warranty benefits of the mobile in question. This mobile is well know product in market and carries a warranty against any malfunction in mobile which means product (MOBILE) shall be repaired free of cost up to one year from the date of purchase if any trouble crops up. This warranty is provided by manufacture under some terms and conditions which must be followed by the customers.
OBSERVATION
We have already perused the complaint and written versions filed by the complainant and the O.Ps as well as the documents filed by them. The OP No. 3 & 4 have been set ex-parte. The complainant has failed to file any document with regard to the cause of action. He has also failed to file any documents supporting to the manufacturing defects as well as he had failed to file any expert report. So the instant complaint is miserable failed. The complainant has filed only two sheets of documents is retail invoice & tax invoice. He has failed to file the export report which could have established with the case of manufacturing defects. The instant complaint makes out no ground for relief under the provisions of Section- 14 of the CP Act. The onus lies on the complainant to show that the reliefs as contemplated under Section- 14 can be given for the defect in goods supplied or deficiency in service provided to the complainant. The answering OP do business of selling products with its dealers on principal to principal basis. The answering OP has no control or interfere in the business of the complainant. The answering O.Ps have not render any deficient services. The complainant ahs not stated that which clause of terms and condition O.Ps have violated or where the deficiency in service lies on the part of O.Ps. The answering OP relies on MS VIDEOCON INTERNATIONAL LTD VS K VIYHAYAN & OTHERS 1999 (I) CPR 20 wherein it has been held by the Commission that for replacement of product the defect must be manufacturing and for providing manufacturing defects EXPERT REPORT is essential. The complainant could not file any document regarding the deficiency of service caused by the OP No. 1 & 2. He has failed to make out a primafacie case against the answering OP No. 2.
FINDINGS
1. The complainant has failed to file any document with regard to defective mobile.
2. He also could not file any document as the evidence regarding the deficiency of service and dishonest trade practice of the O.Ps. Hence it is ordered;
- ORDER
The complaint be and the same is dismissed without any merit & cost against the OP No. 1 & 2 on contest and OP No. 3 & 4 ex-parte.
This order is pronounced in the open Forum on this day of 28th August, 2019 under my hand and seal of the Forum.
