SRI G.K. RATH, PRESIDENT …    The brief history of case is that, the complainant had procured a Samsung mobile, model S-8 bearing IMEI No.358057080711557/01 on dated 18.05.2017 from the OP.no.2 for Rs.57,900/- obtaining retail invoice and warranty card. But after its use the mobile reported defect like hang, display problem and battery overheat etc. So the complainant approached the OP.2 being the retailer transmits the mobile to the service care i.e. OP.3 on dt.23.12.2017 and after repair the OP.3 return the set to the complainant but within a few days the devise shows the same problems as it was in previous. The complainant contends that he several times requests the OP.s for its repair but no action has been taken by OP.s. Hence the complainant harassed due to the defective set and the entire action of OP.s amounts to deficiency in service, hence prayed to direct the OP.s to pay the cost of the product and a sum of Rs.30,000/- as compensation and Rs.10000/- towards cost of litigation.

2.         The counsel for OP.No.1 & 3 entered his appearance and filed counter to contend that, the case is not maintainable as the complainant approached this forum not with clean hands. The allegation of inherent manufacturing defect is without supporting or relying any expert report. The contentions of complainant are self explanatory, false & frivolous and the complainant should have put the same with strict proof. The complainant is not a consumer as the instant dispute is not a consumer dispute. He further contends that there is no deficiency in service on the part of these OP.s, so prayed to dismiss the case with cost.

3.         The counsel for OP.1 & 3 & counsel of complainant heard the case at length. The complainant has filed copy of some documents along with his affidavit. The OP.2 neither appeared nor filed his counter in the case, hence he set ex parte and the forum decided to proceed the case basing on documents as available in record on merit. Submissions after perusal considered.

4.         It reveals from record that the complainant has procured the mobile in question on dt.18.05.2017 and the same reported defect from the beginning of its purchase i.e. within full valid warranty period of one year. It is seen that, the complainant time and again approached the OP.s reporting the so called defects, but the OP.s neither rectified the set nor replaced the same with a new one. On perusal of job sheet of OP.3 it is specified "Octa problem customer don’t want to repair the Octa". In our concerned opinion, the complainant has purchased the mobile by paying a huge remuneration alluring great features but he restrained to facilitate the same, otherwise in the present case the OP.s unless replace the same tried to patch up the lacunas having behind the devise. On the other hand the OP.s neither replaced the set nor assured to pay of its price on claim of complainant. Perusing the evidences, submissions by the complainant, we are of the view that, the set in question purchased by the complainant has inherent manufacturing defect. The service rendered by OP.3 being duty bound is not satisfactory, and the OP.1 is as the principal is liable for the deficiency accrued on the part of its agents. As thus the complainant suffered mental agony with the defective set, and also inflicted financial losses for the negligence and unfair practices of OP.s, he prayed for compensation.

5.         From all corners of the case, it is observed that, the OP.2 & 3 challenged in their counter that the allegation made by complainant on manufacturing defect is without relying any expert report, but from catena of top court decisions held that "expert opinion/report is not necessary for every case", so the contention is baseless, hence we found that the OP.s without following the warranty norms and acts as illegal and highhandedness, so in our opine, the action of OP.s is against the principles of settled law and also we found arbitrary and unfair practices on the part of OP.s which amounts to deficiency in service, as thus the complainant is harassed in both mentally and financially, hence lawfully entitled for compensatory relief. However as the OP.1 is the manufacturer of the said product, the complaint is allowed against OP.no.1 with costs.     

                                                                                 ORDER

1.         The opposite party no.1 above is hereby directed to pay the cost of the mobile set Rs.57,900/- (Rupees Fifty seven thousand & Nine hundred only) in place of the so called defective mobile, inter alia, to pay Rs.10,000/-(Ten thousand) as compensation and a sum of Rs.5000/-(Five thousand) towards the cost of litigation to the complainant.

ii.         All the above directions shall be complied with in 30 days of receipt of this order, failing which, the total sum shall carry 12% interest per annum till its realization. Pronounced on this the 31st day of May' 2018.

           MEMBER                                                     PRESIDENT