Order-15.
Date-26/02/2018.
AUTHOR. RABIDEB MUKHOPADHYAY, MEMBER
This is an application u/s.12 of the C.P. Act, 1986.
Case of the complainant, in short, is that he purchased a mobile set Lenovo A 2010 White 868812020738398 on 29-04-2016 for Rs.5,600/- from OP-3 with one year warranty VIDE CASH MEMO no.EL17/A002391 dated 29/4/2016. After purchase, on 25-05-2016 the said phone developed defect and complainant handed over the phone to OP-2 for servicing but after checking OP-2 returned the set with a plea that this phone cannot be repaired and verbally told that for repairing the set complainant shall have to bear cost of Rs.4,700/- though the set was under warranty. Complainant informed the matter to OPs-1 and 3 verbally but with no result. Complainant lodged complaint to AD, CAD, 11A, Mirza Ghalib Street, Kolkata- 87 but mediation failed. OPs are deficient and negligent in service and having no other alternative complainant filed this case before this Forum praying for repairing the set or replace the set by a new one with a warranty of one year or the cost of the mobile set from OP and also for compensation and litigation cost.
On the other hand, OP-3 by filing written version has denied and disputed allegation against him. OP-3 stated that complainant would not come before him under warranty period. The set was purchased on 29-04-2016 and the phone developed defect on 25-02-2017. He is only the authorized seller of mobile phone and there is no cause of action arose on and from 27-09-2016 and in this circumstance, he prayed for releasing himself from all charges against him.
Point for Decision
- Whether the complainant is a consumer under the OPs;
- Whether the OPs are deficient;
- Whether the complainant deserves relief.
Decision with Reasons
1)It remains the fact thatOPs-1&2 did not turn up to contest the case in finding the truth, in spite of the fact that the summons were delivered on 01/8/2017 and 02/8/2017. Thereby they lost the opportunity to controvert the allegations levelled against them by the complainant.
2) The OP-3 made appearance and contested the case. OP-3 is the seller of the Lenovo A2010 white Mobile set costing Rs 5600/- as appeared from the Cash Memo (Bill No. EL 17/A002391 dated 29/4/2016.
3) As per the complaint with amendment of date of defect, it appears that the mobile set developed defect on 25/5/2016 and on the same day the complainant contacted OP-2 for servicing.
4) As appeared from Customer Information Slip issued by OP-2 on 27/9/2016, it is clear that the mobile set suffers from torch problem, not charging andbattery connector bend. In the detailed report column, it has been diagnosed that PCB need to purchase. The cost for such proposed purchase has been stated in the Customer Information Slip to be Rs 4700/-. The Mobile set remained so far unrepaired.
5) It is to be mentioned that the Mobile set stopped functioning due to defect on 25/5/2016, i.e. within 1(one month) month of purchase and it is stated that on the same day OP-2 was informed and the phone was handed over for repair, when the OP-2 stated as per Evidence para-2 of complainant as well as in the complaint that the set could not be repaired. OP-2 is also stated in the said paragraph that the set could repair only on payment of Rs 4700/- by the complainant. The complainant stated that he verbally drew attention to OP-1 and OP-3 and again approached OP-2 on 27/9/2016 when OP-2 issued the Customer Information Slip detailing the defects and claiming Rs 4700/- as detailed at para-4 above.
Repairing charge of Rs 4700/- for a Mobile worth Rs 5600/- means the set suffers manufacturing defect.
6) It needs to be mentioned that the warranty was for one year and the defect was located within one month but the set was not repaired by the OPs. This is deficiency on the part of OPs in keeping promises assured to the complainant/purchaser given throughwarranty.
In the Cash Memo (Bill No. EL 17/A002391) dated 29/4/2016, it is mentioned, inter alia, that the products in this invoice are covered by manufacturer standard warranty. It is also mentioned that replacement of the products sold under warranty will be done only after getting the replacement advice from our principal.
7) Content of para-6 of analysis above is that the seller (OP-3) acted on behalf of the Principal (OP-1) following the Agent-Principal chain. The OP-3 took the consideration on behalf of the Principal and OP-3 would get some portion of the consideration for acting in his Principal’s behalf.
8) Neither the OP-1 or OP-2 appeared to take part in the proceedings and it is the settled Principle of Law that the party failing to controvert the allegations leveled against it, indirectly admits the same. The OP-1 cannot shake off its liability on the plea that the complainant did not pay consideration to it and there has been no privity of contract between the complainant and the manufacturer (OP-1).
9) We like to remind them the famous, age-old Ginger-Beer case where it was established that the manufacturer has also the relation with the grass-root customer and is liable to him for any deficiency in the manufacture of the product affecting the customer. When a manufacturer makes any product, it must keep in mind that the product will be consumed by a customer, and not by its dealer, distributor or retailer. The lion’s share of the consideration money received by the retailer/seller for the product goes to manufacturer’s account. So, the ultimate responsibility and liability for any deficiency vests on the manufacturer. Since the seller (OP-3) also took the consideration from the complainant and digested some portion of it in the nature of profit, it cannot shake off its liability too. The OP-2 did not take any consideration from the complainant and it is not in the chain manufacturer to customer, we do not intend to impose any liability on OP-2 though OP-2 did not take part in the proceedings.
10) We see as the complainant paid consideration, he is a consumer under the OP-1 and OP-3 in terms of both the sections 2(1)(d)(i) and 2(1)(d)(ii) of the Consumer Protection Act, 1986. We also see that the said OPs are deficient in keeping promises given under the warranty affecting the complainant by depriving him of the smooth use of the mobile phone and so, the complainant deserves relief.
In the circumstances of above analysis, we are constrained to pass
ORDER
That the complaint be and the same is allowed exparte against OP-1 in terms of sec 13(2)(b)(ii) of the Consumer Protection Act, 1986 and on contest against OP-3in terms of sec 13(2)(b)(i) of the said Act and dismissed exparte against OP-2;
That the OP-1 and OP-3 are jointly and severally directed to replace the damaged Mobile phone under dispute with a new one of similar model and price and hand over the new Mobile phone to the complainant simultaneously taking back the damaged set, if not already done,
OR ALTERNATIVELY, to return the price Rs 5600/- to the complainantsimultaneously taking back the damaged set, if not already done, within 30 days from the date of this order;
That the OP-1 and OP-3 are jointly and severally directed to pay to the complainant Rs 5000/- as compensation and Rs 5000/- as litigation cost,within 30 days from the date of this order;
That on failure to comply with the above order by the OP-1 and OP-3 within stipulated time, the complainant shall be at liberty to put the order into execution in terms of section 27 of the Act ibid.
Let parties be handed over copies of the judgement to the parties when applied for.
