Orissa

Rayagada

CC/303/2016

Maddi Sridhar Pabra - Complainant(s)

Versus

Reliance Retail Ltd., - Opp.Party(s)

Self

03 Aug 2017

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 303 / 2016.                                       Date.  03. 08. 2017.

P R E S E N T .

Sri GadadharaSahu, B.Sc.                                           President I/C.

Smt. Padmalaya Mishra, LL.B.                                     Member

Sri Maddi Sridhar Patra,  C/O: P.Neelamadhab Patra, Raniguda Farm, 2^nd. Lane,  Po/ Dist: Rayagada, State:  Odisha.                                                                                                                                                                                                                                                …….Complainant

Vrs.

1.The Manager,  Reliance Retail Ltd.,  OR-RYGD-JC-01,  Khata No. 30/88, Plot No. 104/223 & 103/1/269,  Mauza Khaliguda,   Po/ Dist: Rayagada, State:  Odisha.

2. The  Manager, Om Cell Point, Sarla Junction,  Main Road, Rayagada, Po/ Dist: Rayagada, State:  Odisha.

3. The Manager, Reliance Registered office, 3^rd. floor,  Court house, Lokmanyatilak Marg, Dhobi Talao, Mumbai- 400002,

                                                              .…..Opp.Parties

Counsel for the parties:                                 

For the complainant: - Self.

For the O.Ps 1 & 3:-  Sri V.S. Raju and associates.

For the O.P. No.2 :-  Set exparte.

                                                J u d g e m e n t.

          The  present disputes arises out of the complaint petition filed by the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for non refund of sale of price of the mobile set.  The brief facts of the case  has summarised here under.

 

1.       That the  complainant had   purchased  a LYF mobile  phone of Model name LYF Flame 1 and IMEI  No. 860406031850835  on payment of consideration  a   sum of Rs.5,500/- to the  O.P.  No. 2.   The O.P.  No.  2  issued  cash memo  in favour of the complainant on Dt.16.7.2016  vide  No. 504.  That  the above set  had started problems   immediately  with in  the Ist. Month of its purchase   i.e.  hand set was hanging repeatedly, non functioning of touch screen   and unable to use by the complainant.  The  complainant had given the same to the service centre  for rectification, but the same defect continued  in the above set.  Hence this case filed by the complainant for redressal of his grievance. The complainant prays the forum to direct the O.Ps to refund sale price  of the above set and to pay  cost,  compensation  and such other relief as the hon’ble forum deems fit and proper for the best interest of justice.

 

2.       On being noticed the  O.Ps 1 & 3 filed  joint written version through their learned counsel and submitted that the present complaint is not maintainable.   This forum has lack of territorial  jurisdiction   as the warranty  card accompanying with the product, provides for exclusive jurisdiction   of the courts in Mumbai.    The complainant did not show any information  and evidence as to the presence of  any data in the cell. The hon’ble forum  does  not  have  jurisdiction as the warranty card  accompanying with the product, clearly states that  any dispute are subject to jurisdiction of the courts in Mumbai.
The  O.P. No.1 & 3 are not libale to pay any damages and  refund the sale consideratrion to the  sale consideration to the complainant as alleged. The O.Ps 1 & 3 prays the forum to dismiss the complaint petition against the aforesaid O.Ps  for the best interest of justice.    

 

3.       The  O.P  No. 2        received  notice from the  forum as  revealed  from the  postal receipt, but neither appeared nor choose to file written version.  The statutory period for filing of written version  was over.  Hence the O.P No. 2  was  set exparte.  So the case was posted for  hearing  to close the case within the time frame as per  the C.P. Act.

The O.Ps  1 & 3 appeared and filed their   joint  written version.  Arguments from the    O.Ps and from the  complainant  heard.   Perused the record, documents, filed by both  the parties. 

The learned counsels for the  O.Ps   vehemently advanced arguments touching the points both on the facts  as well as on  law.

          FINDINGS.

4.        The O.P. No. 1 &  3  vehemently argued that the present complaint is not maintainable  before the forum. We are of the opinion that the case  is relating to defective goods  which is covered under section 2(i)(f) of the C.P. Act. The C.P. Act  which provides that  “Defective means any fault,  imperfection or shortcoming in the quality, quantity, potency, purity are standard which is required to be maintained by or under any law for the time being in force”.                                                                  After amendment made by  the C.P. Act   of 2002 wherein it  is made clear that when a complainant  is using the product of the O.P.No.3   is also coming within the definition of consumer and the service provided  or attached to the said  goods in the shape of warranty or guarantee is also available to the users.

On perusal of the record  it is revealed that  the fact of the  purchase  of LYF mobile  phone is not denied by the  O.Ps.  It is admitted position the complainant having  purchased   above goods for  consideration  having the warrantee for replacement/refund   is  entitled  to him

It is admitted position of law that when   a  goods sold  by the  manufacturer has under gone  servicing   and even such  servicing  the same defects  persist  it   is deemed  to be a  manufacturing defect.   Hence the complainant is entitled to throughly  check up  of the above set   and   to  remove   the defects  of   the above set  with fresh warrantee .

            Regarding the contentions of the O.P. No. 1 & 3 that this forum has no territorial jurisdiction to entertain the complaint petition.  It is well found by the Hon’ble High Court of Calcutta held and reported in AIR – 1985 Calcutta- page   No.74 in a suit. A breach of contract suit can be entertained by the forum within  whose jurisdiction price was payable. So the above case can be filed on that place where the contract were made.  Again   Section  11(2)© of the C.P.Act specifies a complaint  can be instituted in a  District Consumer Forum within the local  limits  of whose jurisdiction the cause of action, wholly or in part arises.  In the instant case the O.P. No.2 is the  dealer of the O.P. No.3  who resides at Rayagada. Further the defect   occurred  within the jurisdiction of Dist. Consumer Forum, Rayagada.  This is enough proof for the cause of action  arises at  Rayagada(Odisha) in part.

          The pleas   of  the  O.P  No.  1 & 3  are that  any dispute are subject to jurisdiction of the courts in Mumbai. As per Section-3  of the C.P. Act, “the provisions of this Act, shall be in addition to and not in derogation of the provisions of any other law for the time being in force”. Hence, this  forum can entertain the complaint.

 

            Perused the complaint petition and documents filed by the complainant and we accept the grievance of the complainant. The Complainant  argued that the O.Ps have sold a defective  set  to the complainant and claimed that the O.Ps caused deficiency in service and deprived of the complainant of enjoyment of the above set  since the date of  its purchase  which caused mental agony and harassment to the complainant.

Now we have to see whether there was any negligence of the OPs  in providing  after sale service  to the complainant as alleged ?

We perused the documents filed by the complainant.  Since the above set found defective after its purchase    and   the complainant  informed the OPs regarding the defect but the  OPs   failed to remove  the defect.   At this stage we hold that  if the above set  require  servicing since  the date of its purchase, then it can be presumed that it is defective one and if the defective set  is sold to the complainant , the complainant is entitled to get refund of the price of the article or to replace a new  one or  remove the defects  and also the   complainant is entitled  and has a right to claim compensation and cost to meet his mental agony , financial loss.  In the instant case  as it  appears that the above set  which was purchased by the complainant had developed  defects 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 the above set  with an expectation to have the effective benefit of use of the article. In this case, the complainant was deprived of getting beneficial use of the article and deprived of using the above set  for such  and the defects were not removed by the O.Ps who  know the defects from time to time from the complainant.

Hence, in our view the complainant has right to claim compensation to meet  his mental agony, financial loss. Hence,  it is ordered.

            In the  present case  the O.Ps . are jointly and several liable.

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

                                                            ORDER.

5.         In the result with these observations, findings  the complaint petition is allowed in part  on exparte against  the O.P No.2 and contest against O.P. No.  1 & 3.

            The O.P  No. 1  & 3   are  ordered to take back their product and  refund price of the LYF flame-1 mobile handset a sum of Rs. 5,500/- to the complainant. The O.Ps. are  further ordered to pay  Rs.1,000/- towards  litigation  expenses  to the complainant.       

            The O.Ps are  ordered to comply the above direction within 45 days from the date of  receipt of this order. Serve the copies of the order to the parties.

Dictated and corrected by me

Pronounced on this                   3^rd.   Day   of  August,  2017           .

 

                                               

                                    MEMBER.                                                        PRESIDENT.