DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MALDA, MALDA D.F.ORIGINAL CASE No.20/2008. Date of filing of the Case: 11.03.2008 Complainant | Opposite Party | Manorajan Pal, 55 years C/O. Harishankar Saha Sarat Pally (Bank Colony) P.O. + Dist. Malda. | | Prop. A.K. Saha Saha Communication Maheshmati Road, Rathbari Kamar Para, Malda. |
Present: | 1. | Shri A.K. Sinha, Member | 2. | Smt. Sumana Das, Member |
For the Petitioner : Biswanath Das, Authorised agent. For the O.P. : Amitava Moitra, Nabin Ch. Das & Sanjoy Kr. Pathak, Advocates. Order No. 05 Dt. 30.04.2008 The gist of the case of the petitioner is that he purchased one Blue – 550x mobile set bearing SL. No.359549005899607 on 21.6.2007 for his son Santanu Paul from Saha Communication Maheshmati Malda. Within some days of use the set was defunct and he deposited the set to the shopkeeper on 23.10.2007 to repair the defect. After prolonged persuasion he received back the set from the shopkeeper in the some condition on the basis of the report of local distributor as ‘Liquid Damage’. The shop-keeper again received the Mobile set in question on 07.12.2007 with the assurance that he would take personal initiative to rectify the defect but it was returned on 03.02.2008 with the expression that he had nothing to do and this give rise to the instant case with the prayers for reliefs as have been made in the petition of complaint. The O.P. (Saha Communication, Maheshmati road, Malda) contests the case by filing written version denying therein the material allegations. The O.P. also claimed that the case filed by the complainant is not maintainable and is barred by mis-joinder and non-joinder of necessary parties. The following points have been emerged on pleadings of both parties. 1. Whether the complainant be termed as consumer according to Sec.2(1)(d)(ii) of the C.P. Act? 2. Whether the complaint is liable to be dismissed for defect of party? 3. Whether the service of the O.P. suffers from deficiency? 4. Whether the complainant is entitled to the reliefs as prayed for? Point No.1 According to Sec.2(1)(b) of the Consumer Protection Act reads complainant means :- (a) a consumer (b) any voluntary consumer association registered under the companion Act 1958 and …………………..or (c) central Govt. or any Sate Govt. who or which makes the complaint (d) and or more consumer where there are numerous consumers having the some interest (e) in case of death of a consumer, his legal hair or representative. Hence, a complaint can be made before the Forum only by the consumer of goods as defined in Section 2 (1)(d)(i). In the instant case it appears from the documents viz purchase memo of Blue – 550x mobile Sl. No. 359549005899607 on 21.6.2007 issued by Saha Communication Maheshmati, Malda (hereinafter to be called O.P.) in the name of Santanu Paul, Blue Mobile Phone and warranty card reveals the name of Santanu Paul, Sarat Pally, issued by the O.P. Section 12 of the C.P. Act 1986, as amended w.e.f. 15.3.2003 envisages the person who can be termed ‘consumer’ in relation to any goods sold or delivered or agreed to be sold or delivered or any service provided or agreed to be provided. It has been evident from foregoing paragraph that the mobile set in question was purchased by Santanu Paul, the son of the petitioner. This being the position the present petitioner has not takes permission from the Forum to file the present case on behalf of his son Santanu Paul who is the purchaser and accordingly this petition is not maintainable according to law. Thus this point is disposed of in the negative. Point No.2 For discussion of this point the Forum finds opportunity to go through order 1 Rule – 9 proviso – 4 of CPC wherein it has been laid down that there is an essential distinction between ‘necessary’ and ‘proper’ parties to the suit. Necessary parties are parties whose presence is essential and whose absence no effective decree can at all be passed. In the instant case neither the manufacturer of the mobile set nor its authorized service provider have been made parties to the case who are equally liable to look into the interest of the consumer after sale of the product. Though no suit shall be defeated for mis-joinder or non-joinder of parties there can be no doubt that it the parties who are not joined are not only proper but also necessary parties to the suit. The infirmity of the suit is bound to be fetal. Thus this point is disposed of in the affirmative. Point No.3 On careful scrutiny of the petition and the documents it appears that the mobile set in question when found defective after use of some days of purchase it was handed over to the O.P. on 23.10.2007 and the set was returned with the report of authorized service provider Pratham Telecom India Pvt. Ltd., 70 Beck Bagan Road (2nd floor) Kolkata – 700 017 wherein it was remarked ‘liquid damage’. In the petition it was admitted that the O.P. again received the mobile set on 7.12.2007 for repair at his personal initiative but he returned the same as he expressed his inability to do any thing in the favour of purchaser. The road challan dated 7.11.2007 of the service provider of Blue 550x mobile reveals that the set was sent to the service provider through Jaiswal Communication N.S. Road Malda by the O.P. for repair. A perusal of limitations of warranty coverage scribed in the Blue Mobile phone warranty card which was delivered by the O.P. on the date of purchase it appears that one of the examples in “Defect or damage due to spills of food or liquids” is not covered under Cellular Warranty. No document, certificate whatsoever could be produced along with the petition of complaint or during advancing argument that the remark ‘Liquid damage’ of the service provider is not correct or vague. From the above discussion it can safely been concluded that the service of the O.P. does not suffer from deficiency. This point is thus disposed of in the negative. Point No.4 In the process the case does not succeed. Proper fees have been paid. Hence, ordered, that Malda D.F. Case No.20/2008 is dismissed on contest. There will be no order as to the cost. Let a copy of this order be given to both parties free of cost. Sd/- Sd/- Sumana Das A. K. Sinha Member Member D.C.D.R.F., Malda D.C.D.R.F., Malda | 
