Orissa

Rayagada

CC/26/2020

Biswanath Panda - Complainant(s)

Versus

M/s Manasa Mobile - Opp.Party(s)

Self

28 Jan 2021

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    COMMISSION, RAYAGADA,

STATE:  ODISHA.

 

C.C. Case  No.  26 / 2020.                                 Date.   28. 1 . 2021

P R E S E N T .

Sri   Gadadhara   Sahu,                                         President

Smt. Padmalaya  Mishra,                                     Member.

 

Sri  Biswanath  Panda, S/O: Late Gouranga  Panda, Vill: Kolnara, PS: Chandili,   Dist:Rayagada   (Odisha). 765 001,  Cell No.9437071602.                                                                              …. Complainant.

Versus.

1.The   Manager, Manas Mobile, G.K.Padhi complex, Po/Dist: Rayagada(Odisha).

2. The  Manager, Samsung  India Electronics Pvt. Ltd., Regd. Office, A-25, Ground Floor, New Delhi- 110044.                                      

3.The Manager, Samsung Service centre, Rayagada(Odisha)..…..Opp.Parties

.

Counsel for the parties:                         

For the complainant: - Sri Jagannath Dora and associates, Rayagada.

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

For the O.Ps :- Sri  K..Ch.Mohapatra, Advocate, Bhubaneswar.

 

JUDGEMENT

The  crux of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for  non rectification of Samsung A 50 mobile   which was found defective within warranty period and not removed the defects  for which  the complainant  sought for redressal of the grievances raised by the complainant. 

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  4 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.Ps.  Observing lapses of around 8 months  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.Ps. The action of the O.Ps is against the principles of  natural justice as envisaged  in  the Act. Hence the O.P was  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.

Upon  Notice, the O.Ps 2 & 3 put in their appearance and filed written version in which  they refuting allegation made against them.  The O.Ps  2 & 3  taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act. The facts which are not specifically admitted may be treated  as denial of the O.P. Hence the O.Ps 2 & 3 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.

There  is no dispute that   the  complainant has purchased  Samsung  A 59  having  its IMEI No.  356129100659462 on Dt. 27.3.2019   from the O.P. No.1  bearing  cash  invoice  No.627 on Dt.27.03.2019  on  payment  of  consideration  a sum of Rs.20,450/-. The O.Ps. have   sold  the  said set to the complainant providing  one year warranty period. (copies  of the       bill    is in the file which is marked as Annexure-I ).

After  using  some  months i.e with in the warranty period  the complainant  has  shown  defective in the above set i.e. it became net working problem,  camera, data missing found and was not functioning properly. Hence   the complainant  approached the  service centre  situated at Rayagada(Odisha)  for its rectification.  But the   Service centre has not rectified the  same within the warranty period.

            The main grievances of the complainant is that due to non  rectification of the  above  set perfectly  within warranty period  he wants  refund  of purchase  price of the above set. Hence this C.C. case.

The O.Ps in their written version  contended that  as per the request of the complainant the Service Engineer   had updated the software of the phone for work properly.  Thereafter the Service centre verified and observed no defect in the hand set only the software  was corrupt. Thereafter the service centre immediately updated the software of  the said alleged mobile phone and returned the same with defect free to the complainant on the same day.  Since this date the complainant has been smoothly using the mobile  phone till now without caused any defect  and without any allegation  made before  the O.P.  Also no allegation was made by the complainant before any O.Ps or any service centre regarding  the defect of the above set before filing of the said case. All of sudden at the end of warranty period of the said  alleged   set the complainant has filed this frivolous and vexatious complaint before forum without any cause of action against the O.Ps by suppressed all the real  facts not only to secure the illegal and unlawful gains from the O.Ps  but also  to tarnish the reputation of the O.Ps. The complainant is not entitled to get any relief claimed therein and this complaint is liable to be dismissed for this ground alone.

The O.Ps in their written version relied  citations which are mentioned  here:-

It is held  and reported in  CPJ – 1997(2) page  No. 81 in the case of Punjab Tractors Ltd.  Vrs.  VirPratap  where in the   Hon’ble  National Commission observed  “Where the complaints of the complainant were duly and promptly attended by the O.P. and no reliable evidence was produced by the complainant in support of his  case that he suffered a loss due to inconvenience caused to him, the  complainant in this case is not entitled to any  relief. In the present case the OPs have duly attended the complaints of the complainant and have therefore never been deficient in providing the services  to the complainant.”

Further it is held and reported in  CPJ 1992 (1) page No. 97 in the case of Sabeena Cycle emporium chennakhaada Vrs.  Thajes Ravi  M.R. Pancha Villa VedarEzkhone P.O.  where in the  Hon’ble State CDR Commision, Kerala  observed  “Where the complainant alleges defects in the goods, the forum is bound to determine this fact on the basis of clear evidence by way of expert opinion. The aforesaid proposition of law has also been reaffirmed by the  Hon’ble State Commission,West Bengal  in the case of  Sri Keshab Ram MahtoVrs. Hero Honda Motors Ltd and Anrs.  2003(2) page No. 244. 

Again  it is held and reported  in AIR-2006 S.C 1586   in the case of  i.e. Maruti Udyog Ltd. Vrs. Susheel  Kumar Gabgotra and others 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.Ps 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  and to secure the unlawful gains from the O.Ps.

 Further is it held and reported  2014(3) CPR- 724   in the case of Bajaj Tempo Ltd Vrs. Shri  Ajwant Singh & Another where in   the  Hon’ble National Commission opined that “Manufacturing defect must be proved by expert opinion”.

For better appreciation  this forum  relied citations  which are mentioned here under:-

It is held and reported in Current Consumer Case  2005  Page No. 527 (NS) in the case of Meera&Co Ltd. Vrs. ChinarSyntex Ltd  where in the Hon’ble National Commission  observed “Consumer-    Generating set purchased -  defects developed  during  warranty  period - repairs done on payment - dealer can not be absolved from his liability   because manufacturer has not  been impleaded- dealer deficient in service- order  to dealer   refund   amount with interest to the complainant.”

Again It is held and reported  in CTJ-2005, Page No. 1208 where in  the hon’ble  National Commission   observed  “Both the dealer & manufacturer of the  product having defects  in it, are jointly and severally liable to the  purchaser, because he knows only the dealer from whom he purchased that  product and not its manufacturer”. 

Further   It is held and reported in CPR- 2009 (2) Page No. 42  where in  the Himachal Pradesh  State Commission  observed “ we may mention here that it is by now well settled that the C.P. Act, 1986 is a welfare  legislation  meant to give  speedy  in expensive and timely justice to the parties. Similarly it is also well know that where  two views are possible, one favourable to the consumer needs to be followed.     

            Again it  is  held and  reported in  Consumer Law today 2014(1) page No. 153 where in the  Hon’ble  Goa State Commission observed “The tax invoice duly   signed by dealer can be considered to be an agreement between the parties subject to which the   sale was   made to the  consumer – liability for defect in article sold both the dealer and manufacturer  are jointly and severally. 

Further It is held and reported in C.P.R-2012(1) PAGE No.  303  in the case  of Loga Prabhu Vrs. Adonis Electronics Pvt. Ltd and ors  the Hon’ble  State  CDR Commission, Chennai  where  in observed  “Consumer  is entitled to free service/replacement during warranty period”.

Again  It is held and reported in NC  & SC on consumer cases (Part-VI) 1986 to 2005  page  No. 9089(NS) the Hon’ble National Commission, New Delhi where in observed   “ Motor Vehicle- dealer’s responsibility- vehicle sold by dealer after receiving payment- manufacturing defect- dealer can not be absolved  from his liability in refund the price or replacement-  jointy  liable with manufacture”.

Now we have to see whether there was any  negligence  on the part of the O.Ps in treating the complainant as alleged ?

We  perused the  documents filed by the complainant  and it  proves that the complainant has purchased a mobile set  from the  O.P. No.1  and after its purchase when the mobile set was found defective the  O.P failed to rectify the defect. The  complainant has approached the service  from time to time but  the defects were not removed by the service centre.   At the time of selling their products the O.Ps should ensure that they would provide after sale service to the customer but in this case  the O.Ps sold their produce and failed to give after sale service which is a clear deficiency in service on the part of the O.Ps. At this stage we hold that  if the mobile set  require service immediately after its purchase then it can be presumed that it is manufacturing  defective   and  if a defective mobile is supplied, the consumer  is entitled to get refund of the price of the product/article  or to replace a new one.  In the instant case as it appears that the mobile set which was purchased by the complainant had developed defects after  using some months   and the O.Ps were unable to restore its normal functioning during the warranty period.

            It appears that the complainant  invested  a substantial amount and purchased a mobile set  with an exception to have the effective benefit of use of the product but in this case the complainant was deprived of getting beneficial use of the article and deprived of  in using the mobile set for such a long time and the defects were not removed  by the O.Ps .        .

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

 

                                                O R D E R

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

The O.P No.2 (Manufacturer) is     directed to return back the defective product from the complainant  by paying the price of the  above Samsung A 50  a sum of Rs. 20,450/- to the complainant . Parties are left to bear their own cost.

The O.Ps 1 & 3 are directed to refer the matter to the O.P.No.2 (Manufacturer) for early compliance of the above order.

The entire directions shall be carried out with in 45 days from the  date of receipt   of this order.Service the copies of the order to the parties free of cost.

Serve  the copies of the order to the parties as per rule free of cost.

Dictated and  corrected by me.  Pronounced in the open forum on        28th^t   day of   January, 2021.

 

MEMBER                                                   PRESIDENT