Tech Shop
Rajgarh Main Road, Guwahati- 781003,
Assam
Represented by its partners
Mr. Hiranmoi Dutta &
Mr. Bimal Bharali
…..Appellant/opposite party
-Vs-
1. Shri. Sukant Bhattacharya
Asst. State Project Officer (DRM)
Revenue and Disaster Management Department
Room No. 401, Addl Secretariat Building,
Government of Meghalaya, Shillong – 793001
Meghalaya
Respondent (Complainant of Consumer Case No. 31/2008)
2. Sony India Pvt. Ltd
A-31, Mathura Road
Mohan Coop. Industrial Estate
Badarpur, Delhi – 110044
3. Bhajanlal and Co.
Police Bazar, Shillong
….. Proforma Respondents (Other O.Ps of Consumer Case No. 31/2008)
Date of hearing : 17.08.2013
Date of judgment: 14.09.2013
JUDGMENT & ORDER
Per Mr. Justice P K Musahary, President.
1. This appeal is filed by Tech Shop, Rajgarh Main Road, Guwahati, Opposite Party No. 3, in the Consumer Case No. 31/2008, against the order dated 10.11.2008 rendered in the said Case by the learned District Consumer Disputes Redressal Forum, East Khasi Hills, Shillong (D.F in short).
2. Facts of this case in short, are that the Complainant Shri. Sukant Bhattacharya, Shillong (present Respondent No. 1) purchased a “K7501 Sony Erricson” mobile phone set from “Bhajanlal and Co”, Police Bazar, Shillong, Opposite Party No. 1/ proforma Respondent No. 3, on 12.03.07 at a price of Rs. 9,800/- (Rupees Nine Thousand and eight hundred). The said mobile phone started giving trouble within 5 minutes of its purchase. He returned the defective handset for repair but it was not repaired and then he demand its replacement by a new one. It was not complied with inspite of several requests made by him. He then lodged a complaint with the learned District Forum, demanding:-
1) Return of a sum of Rs 9,800/-, i.e., the value of the mobile set,
2) Compensation of an amount of Rs.50,000/- for physical harassment and mental agony,
3) An amount of Rs.2,000/- as monetory loss for visiting service centre including Guwahati,
4) An amount of Rs.10,000/- which the Complainant was required to pay unnecessarily for mobile/GPRS connection.
3. The Appellant/Opposite Party No.3 contested the case by filing a written statement, stating amongst others, that there is no cause of action and that the complaint is barred under Section 8 of the Arbitration and Conciliation Act, 1996 due to existence of arbitration clause in the Job Sheet/Job Card. The Opposite Party No.3 admitted receipt of the handset for repair. But it did not admit any defect in the manufacturing of the handset. It rather stated that there was improper usage of the handset “which can result from various factors such as downloading files and music from unreliable sources or sharing of files with other mobile user or through the internet (IE) by using the GPRS facilities in the mobile handset and from where virus can get uploaded in the mobile and the user may face problems with its features”.
4. The Opposite Party No.3, present Appellant, filed the aforesaid written statement on 05.09.2008 along with a petition dated 05.09.2008 with a prayer to accept the written statement ‘condoning the lapse and the delay, if any, on its part’. The Opposite Party No.3 also filed a petition dated 05.09.2008 for framing a preliminary issue as to whether the case is barred under section 8 of the Arbitration and Conciliation Act, 1996 due to existence of arbitration clause in the Job Sheet/Job Card which was issued against the sale of the mobile handset.
5. The Opposite Party No.1, Respondent No.3 in the present appeal did not file any formal written statement but apprised its stand vide communication No. BHL/CF/08-09/179 dated 21.07.08 addressed to the President, District Forum. The Opposite Party No.2/ present Respondent No.2, Sony India Pvt. Ltd., did not file any written statement or response.
6. Based on the statements made in the complaint, written statement of the Opposite Party No.3 and communication of the Opposite Party No.1 as stated above, the learned District Forum framed the following issues:-
i. Whether the case is maintainable or not in the present form?
ii. Whether there is negligence or deficiency in service by the Opposite Party?
iii. Whether the Complainant is entitled to any compensation?
iv. Any relief entitled to by the Complainant?
7. This appeal was admitted on 03.01.2009. As per the order dated 24.04.10, notice upon Respondent No.1 and 3 was duly served while the notice upon Respondent No.2 was sent on 22.02.2010 by Registered AD Post. It appears that AD card in respect of Respondent No.2 has been lost or mislaid and under such circumstances we presume the notice on Respondent No.2 as duly served under Proviso to order V Rule 9 (5) of the Code of Civil Procedure. The Respondents are not present in person nor are they represented by any counsel. There is no step taken by them for adjournment. Hence, we proceed to hear this appeal ex-parte of the Respondents.
8. Heard Mr.Z.Mukit, learned counsel for the Appellant.
9. By the impugned order dated 10.11.08, the learned District Forum, while dismissing the complaint petition, awarded Rs.9,800/- being the cost of the handset, Rs.10,000/- as compensation for harassment and mental agony and Rs.2,000/- as cost of the petition.
10.One of the grounds of challenge is that the preliminary issue raised by the Appellant/Opposite Party No.3 before the District Forum that the Complaint Petition is not maintainable due to existence of arbitration clause in the Job Sheet / Job Card, has not been addressed in as much as the miscellaneous application filed to that effect was not heard and the impugned order was passed disposing the entire matter without affording opportunities of adducing evidence. It is submitted by the learned counsel for the Appellant that the Forum below committed grave error in law and in procedure by disposing the entire case on a date which was in fact fixed for passing order on the application under Section 8 of the Arbitration and Conciliation Act, 1996 filed by the Appellant and due to such procedural irregularities, the impugned order cannot be called to be a justified order in the eye of the law and so it is liable to be set aside and quashed.
11.To decide the issue, we have perused the records as made available today in the court. As per order dated 05.09.08, the Opposite party No.3 appeared later and filed the written statement along with a petition for acceptance of the written statement and also an application under Section 8 of the Arbitration and Conciliation Act, 1996. It was directed to be put up on 22.09.08 for further order. As per order dated 29.09.08, Complainant was present but he had no witness to examine. Learned counsel for the Opposite Party was present and filed S/C. Matter was fixed on 27.10.08 for hearing on the application under section 8 of the Arbitration and Conciliation Act, 1996. As per order dated 27.10.08, the learned counsel for the Complainant and Opposite Party No.3 was present. The learned District Forum heard the submissions of both the parties. The matter was fixed for order on 10.11.08 and accordingly the impugned order was delivered on 10.11.08 in open court.
12.On perusal of the above order, there is no difficulty for us in appreciating the position that a hearing on preliminary issue indeed took place on 27.10.08 but while passing the order on 10.11.08, the learned District Forum decided all the issues along with the preliminary issue. At the same time it has also become clear that the parties were not given opportunities of adducing evidence. We are, therefore, convinced that the learned District Forum disposed of the complaint in a summary manner. District Forum below has given its reasons for rejecting the preliminary issue raised by the Opposite Party No.3 and held that the complaint was maintainable in the present form. We uphold the said decision in view of the position of law settled in a number of cases by the Hon’ble Supreme Court as well as the Hon’ble National Commission. In a recent judgment rendered in DLF Ltd. And Others Vrs. Mridul Estate (Pvt. Ltd.) and Others, as reported in 2013 (2) CPR 756 (NC), it is held that the Consumer Fora constituted under the Consumer Protection Act, 1986 are not bound to refer the dispute raised in the complaint on an application filed under section 8 of the Arbitration and Conciliation Act, 1996, seeking reference of the dispute to an Arbitral Tribunal in terms of valid arbitration clause in the agreement entered into between the parties. In the said judgment it has been observed that remedy provided under the Consumer Protection Act, 1986 is a special remedy with the objective of Redressal of grievances of affected consumers in an expeditious and non-expensive manner and if small consumers are relegated to Alternative Dispute Resolution Mechanism of Arbitration, remedy provided under Consumer Protection Act would become illusionary. It would be neither expeditious nor inexpensive and it would defeat the very purpose of enactment of Consumer Protection Act. This being the legal position we hold that the learned Consumer Forum below rightly exercised its jurisdiction without referring the matter to arbitration and it needs no interference by us in appeal.
13.On the question of non joinder of mobile handset manufacturing company i.e., Sony Erricson as a necessary party to the Complaint Petition, it is to be noted that the Complainant sought for compensation, cost etc from the said company only but he did not think it necessary to implead/join it as an Opposite party although he had joined Sony India Ltd, as Opposite party No. 2. In fact, initially the Complainant asked for replacement of the defective handset from the said manufacturer and when the same was not conceded to, the complaint was filed for payment of compensation cost etc. The question of non joinder of necessary party was raised in the written statement where it was stated that the manufacturer of the mobile handset was Sony Ericsson and not Sony India Ltd., but the same was not considered and decided by the learned District Forum although the question of maintainability was decided as stated above. What is to be noted further is that the Complainant never applied for amendment of his plaint/complaint to add the manufacturer of the handset as an Opposite Party or for amendment of the prayer seeking relief against all the Opposite Parties jointly or severally. The position, as it stood, was/is that the learned District Forum should not have passed any order directing the manufacturing company to pay the compensation, cost etc, as it was not joined as an Opposite Party/Dependant. Similarly the learned District Forum is debarred from passing any order directing the other Opposite Party on record for want of prayer for relief against them. It appears from different correspondences found on record that the Complainant alleged manufacturing defect in the handset and as such the manufacturer i.e., Sony Erricson is a necessary party in this case in absence of which the dispute cannot be adjudicated and no relief would be granted against it without giving to it due opportunity of rebuttal and hearing. In view of the above, the Complaint was required to be dismissed at the threshold if indeed Sony Erricson and Sony India Ltd. Were separate entities.
14.The finding of the learned District Forum in regard to issue No (ii) i.e., negligence or deficiency in service by the Opposite Party, we find the same are borne on record of the case and there is nothing to differ from the said findings. We have, however, found from the statement made in the application dated 05.09.2008 for acceptance of the written statement by condoning the lapse and delay that the Company decided to replace the handset and the same was intimated to the Complainant/Respondent No.1 vide a Registered AD letter dated 22.07.08, which was received by the Complainant/Respondent on 28.07.08. It is to be noted that the handset was given to the Appellant’s shop for repair on 13.03.07 and the Company concerned decided to replace the defective handset by a new one on 21.07.07 i.e., within 4 months from the date of sale. In paragraph 4 of the said application it is stated as quoted here under-
“The Opposite Party No.3 further submits that as the Company has decided to replace the handset of the Complainant by keeping all the controversies aside and the decision has been made and conveyed to the Complainant before the hearing of the case has in fact commenced, hence, the Complainant may be directed to come forward and act upon the notice dated 21.07.08 and get the matter settled accordingly”.
15.The above facts and statements have not been denied by the Complainant in any manner at any point of time. During the course of hearing it is submitted by the learned counsel for the Appellant, that the Complainant/Respondent No.1 has not come forward to receive the new handset which is still lying in the shop. If we accept this submission, it must be said that the Appellant as a seller of the handset has discharged its responsibility and no order could be passed directing the Appellant to pay Rs.9,800/- as price/cost of the handset, Rs.10,000/- as compensation for harassment and mental agony and Rs.2,000/- as the cost of the petition; more so when no relief was sought for against the present Appellant/Opposite Party No.3. Having considered the above facts and circumstances of the case, we uphold the impugned order dismissing the complaint petition but we are disinclined to uphold the order passed by the learned District Forum directing the Appellant/Opposite Party No.3 to pay the above amounts of compensation and cost. We only direct the Appellant/Opposite Party No.3 to hand over the new handset replaced by the manufacturing company i.e., Sony Erricson per special messenger or through a reputed courier to reach the Complainant within a period of 30 days from today. Be it made clear that if Appellant fails to comply with this order, he would be liable to pay the price of the handset of Rs9,800/- and compensation of Rs.5,000/- and litigation cost of Rs.2,000/- to the Complainant.
16.This appeal stands partly allowed with modification in the order in regard to compensation and cost as indicated above.
17.Return the records along with a copy of this judgment and order. Return the Statutory Deposit cheque to the Appellant.
