F I N A L O R D E R
Facts of the case of the complainant, in short, is that this complainant purchased one mobile phone namely model no. Winds 4S ( LYF ), colour brown, IMEI no. 911524855199060 and IMEI no. 911524855199078, double SIM at Rs. 6,600/- on 29.4.2017 from o.p. dealer and o.p. dealer issued a cash memo bearing no. 1824 dated 29.4.2017 in favour of the complainant. On 30.5.2017 said new mobile phone suffered defect like automatic start and switch off. So this complainant rushed to the o.p. mobile shop with the said defective phone and requested the dealer to replace or to repair the said mobile phone. But the o.p. neither replace nor repair the said mobile phone within the period of warranty. So this complainant has filed this case and prayed for passing an award directing o.p. to refund the amount of Rs. 6,600/- i.e., price of the said mobile phone and also prays for compensation to the tune of Rs. 40,000/- and other reliefs.
In this case o.p. has not appeared despite service of notice. So this case has been heard ex parte against the o.p.
DECISION WITH REASONS :
Perused the affidavit evidence of the complainant. Heard ld. advocate for the complainant and perused the materials on record. It appears that this complainant purchased a mobile phone brand Winds 4S ( LYF ) having two SIM at Rs. 6,600/- from o.p. dealer on 29.4.2017. Now the said mobile phone has suffered defect and the said complainant went to o.p.’s shop for its replacement but o.p. dealer neither replaced the same nor repair the said defective mobile phone.
In this case we find that manufacturer of the mobile phone has not been made parties. No explanation has been given for non impleading the manufacturerof the case mobile phone as parties in this case.
In view of the observation of the Hon’ble National Commission reported in 2016(4) CPR page 265 ( NC ) that “onus is upon complainant to prove that machine supplied to him suffered from manufacturing defect.” So we find that in this case complainant is to prove that the case mobile phone is suffering from defect by a report or evidence of an expert.
It has been observed by the Hon’ble National Commission reported in 2016 ( 4 ) CPR page 412 ( NC ) interalia “that manufacturing defect must be proved by expertevidence.”
In this case no expert has been examined to prove that the case mobile phone has been suffering from manufacturing defect. No expert report has also been admitted into evidence to prove that the case mobile phone has suffered from manufacturing defect.
In the present case we find that complainant has been able to prove that he has purchased the case mobile phone from o.p. dealer on 29.4.2017 as it reveals from Annexure ‘A’ at Rs. 6,600/-. It also reveals from Annexure ‘B’ that the warranty period of the case mobile phone was 12 months from the date of purchase. So we find that complainant has been able to prove that the case mobile phone has suffered defect during the warranty period. But we find that complainant could not be able to prove that the alleged defect of the case mobile phone was suffering from manufacturing defect by producing evidence of expert or report of expert. Manufacturer has also not been made party in this case. It has been observed by the Hon’ble National Commission reported in 2017 ( 1 ) CPR page 643 ( NC ). “Consumer Protection Act, 1986 – Sections 15, 17, 19 and 21 – Mobile Phone – Manufacturing defect – Complainant has not impleaded manufacturer as OP – No expert opinion regarding defects in mobile set has been placed by complainant on record – Job card reveals that there was display problem – This problem occurred after more than 6 months – These problems can arise while regular use of mobile and as ringer problem arose after almost 11 months, it cannot be said that there was any manufacturing defect particularly in absence of expert opinion – No any illegality, irregularity or jurisdictional error in impugned order – Revision petition dismissed.”
Ld. advocate for the complainant argued interalia that he has purchased the case mobile phone from the o.p. dealer. So there is no need to implead manufacturer manufacture as party in this case.
It has been observed by the Hon’ble National Commission reported in 2017 ( 2 ) CPR page 525 ( NC ) interalia that “Dealer of goods cannot be held liable for manufacturing defect.”
In view of above observation of the Hon’ble National Commission we find that o.p. dealer cannot be held liable for manufacturing defect of the case mobile phone.
So in view of the observation of the Hon’ble National Commission reported in 2017 ( 1 ) CPR page 643 (NC) we find that that the manufacturer of the case mobile phone is necessary party to this case and proper adjudication of this case cannot be done in absence of manufacturer of the case mobile phone. So manufacturer shall be impleaded as parties in this case. But ld. advocate for the complainant argued with manufacture need not be made parties in this case as complainant purchased mobile phone from o.p. / dealer.
It has beenobserved by the Hon’ble National Commission reported in 2015 ( 3 ) CPR page 348 ( NC ) interalia that “complaint can be dismissed for miss joinder of parties in proceedings.”
So in view of the above observation of the Hon’ble National Commission we hold that this complaint is also liable to be dismissed for mis joinder / non joinder manufacturer of the case mobile phone as party in this case.
Moreover, complainant also could not be able to prove that the case mobile phone has suffered from manufacturing defect. So we hold that this complaint is liable to be dismissed.
In the result, the complaint case fails.
Hence,
O R D E R E D
That the C. C. Case No. 266 of 2017 ( HDF 266 of 2017 ) be and the same is hereby dismissed ex parte against o.p. but without cost.
Let certified copy of this order be given to the complainant, free of cost, and a plain copy of the judgment be served upon the o.ps. by registered post / speed post with A.D. as early as possible, free of costs.
DICTATED & CORRECTED
BY ME.
( Abdul Kuddus )
President, C.D.R.F., Howrah.
