Date of Institution:03.11.202015

Date of Final Hearing:20.01.2023

Date of Pronouncement:20.01.2023

PRESENT:    SHRI P. SURYA RAO, PRESIDENT

                        SHRI SATISH KUMAR PANIGRAHI, MEMBER

JUDGMENT

Shri P.Surya Rao, President:

The fact of the case in brief is that  the complainant has filed this consumer complaint Under Section 12 of the Consumer Protection Act, 1986, alleging deficiency in service against the Opposite Parties (in short the O.Ps.) and for redressal of his grievance before this Commission.

1. The fact of the case as averred by the  complainant is that he purchased one Mobile on dated 05.07.2013 from the O.P.No.1 having the Model INTEX 1-5 bearing IMEI No. 91131620006197, Battery No. BR 2036G for a sum of R.11,700/-. The O.P.No.1 issued the cash bill vide No. 37 dated 05.07.2013 for Rs.11,700/-. The O.P.No.2 is the service centre and as per the terms and conditions of the cash bill No.37 dated 05.07.2013 issued by the O.P.No.1, if any defect contact to service centre. The O.P.No.2 is the Service Centre to remove the defects. The mobile in question gave the defect on dated 04.07.2014 within the warranty period as per the terms and conditions, the complainant contacted the O.P.No.2 and handed over the same on 05.07.2014 and handed over the mobile for removal of defect. Accordingly the O.P.No.2 issued the receipt bearing Sl.No.29 dated 05.07.2014. From the above, it is established that the mobile in question is defecting and hence the O.Ps are required to replace the aforesaid mobile with one good handed mobile. The complainant remains at Konisi having seven kilometers to the Service center and the complainant used to meet the service centre regularly with expenditure of Rs.200/- per day.  Inspite of regular approach neither the mobile has been handed over nor has one good set of mobile been replaced as yet causing harassments and mental agony. The O.P.No.3 is the manufacturer of the mobile and the O.P.No.4 is the Authorized Service Centre who are jointly and severally responsible for the deficiencies of service.  Alleging deficiency in service on the part of the O.Ps the complainant prayed to direct the O.Ps for replacing the mobile with new set having good condition, Rs.30,000/- only towards the compensation for the harassment and mental agony, Rs.3000/- towards the cost of litigation in the best interest of justice.
2. Notices were issued to the Opposite Parties. Only the O.P.No.1 appeared through his advocate and filed written version.  The O.P.No.2, 3 & 4 neither appeared nor filed any written version. Hence the O.P.No.2 & 3 were declared exparte on dated 09.04.2018 and O.P.No. 4 declared exparte on 09.05.2019.
3. The O.P.No.1 stated that the present complaint is wholly misconceived, groundless, and unsustainable in law and is liable to be dismissed.  This Forum has no jurisdiction to entertain and adjudicate upon the dispute involved in the complaint in as much as it is not a consumer dispute and does not fall within the ambit of the provisions of the CP Act, 1986. The present complaint is manifestly outside the purview of the Act, 1986. The proceedings initiated by the complainant under the Act are not est. null and void and without jurisdiction. The present complaint is baseless and a flagrant abuse of process of law to harass and blackmail the answering O.P.No.1. The complainant has no locus standi to initiate the present proceedings. The complaint is bad for non-joinder of necessary and proper party and is liable to be dismissed on this score alone. The present complaint is hopelessly barred by limitation.  The present complaint is frivolous and vexatious and liable to be dismissed under section 26 of the Act, 1986. The present complaint has not been verified and also not affidavit in accordance with law.  The mobile in question was sold by the O.P.No.1 only as a retailer to the present complainant. And before selling it, the O.P.No.1 described and explained in detail about the mobile to the complainant. Since the date of purchase of said mobile, the complainant has never visited to the O.P.No.1 and also not taken any steps to bring to the knowledge of the O.P.No.1 for any service and the present complaint is merely an afterthought.   The O.P.No.1 is merely a retailer not a manufacturer. As such for any replacement of the mobile, the manufacturer alone can be replaced. The right to replacement of any mobile is reserved with the manufacturer.  Hence the O.P.No.1 prayed to dismiss the complaint with costs.
4. On the date of hearing we heard from the advocate of complainant and O.P.No.1 as the other O.Ps were set exparte. We perused the complaint petition, written version, arguments and materials placed on the case record. But it reveals from the record that for repairing the defective mobile the complainant has deposited his mobile with Opposite Party no.2 M/s Shree Mobiles, Room No. B-12, Ground floor, Sri Sai complex, Gandhinagar, Berhampur vide Sl No. 29 dt.05.07.2014 towards changing problem within the warranty period and to that effect job sheets have been filed by the complainant. It is also pertinent to mention here that though the complainant’s mobile repeatedly found defective but the O.P Nos.: 2 and 3 did not respond. It seems that the mobile is having manufacturing defects. Hence the Op Nos. 2 & 3are liable to make the good to defects in the mobile and/or replace the defective mobile.
5. On foregoing discussion, and for the interest of justice, we hold that there is deficiency in service on the part of the O.P Nos.: 2 and 3.

In the result, the complainant’s case is allowed against the O.P Nos. 2, 3 and dismissed against Opposite Parties No.1 & 4.  The O.P Nos.: 2 and 3 are jointly and severally liable as such they are directed to repair the defective mobile set of the complainant in free of cost with providing of fresh warranty for one year or in alternative refund the cost of the defective mobile set i.e. Rs.11,700/-.  Further the O.P Nos.: 2 and 3 are directed to pay Rs.9000/- as compensation for mental agony along with Rs.3000/- as cost of litigation to the complainant. Both the orders shall be complied by the O.P Nos.: 2 and 3 within 45 days from the date of receipt of this order, failing which all the dues shall carry 12% interest per annum till its actual date of realization and the complainant is at liberty to take appropriate steps in accordance to the consumer protection Act for realization of all dues. This case is disposed of accordingly.

The Judgment be uploaded on the www.confonet.nic.in for the perusal of the parties.

A certified copy of this Judgment be provided to all the parties free of cost as mandated by the Consumer Protection Act, 1986 or they may download same from the www.confonet.nic.in to treat the same as if copy of the order received from this Commission. A copy of this order be also sent to the Secretary, State Consumer Disputes Rederssal Commission, Odisha, Cuttack for information.

The file is to be consigned to the record room along with a copy of this Judgment.

PRONOUNCED ON: 20.01.2023.