Orissa

Rayagada

CC/115/2017

Jayant Kumar Sahu - Complainant(s)

Versus

Shryash Retail Private Ltd., - Opp.Party(s)

Sri L.M Patnaik

23 Mar 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 115/ 2017.                                        Date.     26  .    3    . 2018.

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                                                   President

Sri GadadharaSahu,                                                                        Member.

Smt.PadmalayaMishra,.                                                                                Member

 

Sri Jayant Kumar Sahu, S/O: Manmohan Sahu, New Colony,   Po/ Dist:Rayagada, State:  Odisha.                                                                                                                                                                    …….Complainant

Vrs.

1. The Manager, Shruyash Retail Pvt. Ltd., Warhouse  Address  SY. No.696,Gundapachampally village,  Medchal Mandal, Ranga Reddy Dist. Secundarbad, Teengana- 501401.
2. The Manager, Shruyash Retail Pvt. Ltd., E-29, Ring Road, South Ext-11, Opposite park, New Delhi- 110049.                                                                                                                               Opposite  parties.

 

For the Complainant:- Self.

For the O.Ps :- Sri Rama Kana Jena, Advocate, Rayagada(Odisha).

.

JUDGMENT

The  present disputes emerges out of the grievance raised in the  complaint petition filed by the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for  non refund of  the sale price  of  defective  Lenovo mobile set  within warranty period. 

On being noticed the O.Ps filed  joint written version through their learned counsel and contended   that  the present complaint is not maintainable and liable to be dismissed against the O.Ps.  The O.Ps  are protected  by the provisions of Section-79 of the Information  Technology Act, 2000. The  O.Ps neither offers  nor provides any assurance and/or offers  warranty   to the end    buyers  of the  product.   The  O.Ps. neither  a  ‘trader’ nor a ‘service provider’ and there does not exists any privity of contract   between the complainant and  the O.Ps.  The O.Ps  are only  limited  to providing on  line platform  to facilitate the whole transaction of sale and purchase of goods by the respective sellers and buyers on its  website.  The O.Ps prayed to dismiss the complaint petition against   O.Ps. for the best  interest   of justice.

The O.Ps appeared and filed their written version.  Heard arguments from the  learned counsel for    the   O.Ps and  from  complainant.    Perused the record, documents, written version  filed by the parties. 

This forum  examined the entire material on record  and given  a thoughtful consideration  to the  arguments  advanced  before us by  the  parties & vehemently opposed the complaint touching the points both on the facts  as well as on  law.

                                                                         FINDINGS.

From the records it reveals that, there is no dispute that the  complainant had purchased a mobile set  LENOVO Vibe K5 Note (Gold 32 GB)  from the O.P.  No.1  by paying a sum of Rs. 11,999/-  with Invoice No. #FOYO103117-00029196 dt. 06.09.2016 bearing IMEI No.861808032561015 with  one year warranty. But unfortunately after delivery  with in few months the above  set found defective and not functioning. The defects are mentioned by the complainant in the petition are the above set was hanged any time  and its touch screen  was not functioning properly and the ring tone is not audible. The battery  is also becaming  hot and automatically switched off.  The complainant complained the O.Ps  for necessary repair/replace in turn the OPs paid deaf ear.   The complainant further approached the O.Ps for return the money which he spent but for no use.

.               It is submitted by the O.Ps  in their written version  that  the mobile sold by the O.Ps  carries manufacturer’s warranty and as a  reseller involvement of O.Ps in the entire transaction is limited to selling the product and liability to provide after sale services do not lay upon the O.Ps as the O.Ps are neither the manufacturer of the product nor the authorized service center of the manufacturer who has the sole and prime responsibility to provide after sale services to the consumers  under warranty clause. The O.Ps are not the manufacturer of the product but only sells its online.  The product purchased by the complainant is manufactured by Lenovo Pvt. Ltd and the product sold by the O.P carries warranty provided by the manufacturer against the manufacturing defects subject to the terms and conditions determined by the manufacturer only. The role of the O.Ps   are limited to selling the product of the manufacturer  to the complainant , since electronic devices come in a sealed box, the O.Ps   have no control over the quality of the product nor is it possible to detect defects, if any. Thus the instant complaint is not maintainable against the O.Ps    as it is neither a proper nor necessary party. The O.Ps  have no liability to replace or capability to repair the product manufactured by the manufacturer.  Even if the product is found to be defective  it can only be the liability of the manufacturer to replace or repair it and here in this case the complainant has not impleaded the manufacturer as opposite party to the complainant. The reliefs prayed for by the complainant  are wholly unreasonable and unsustainable in law and the O.Ps are  not liable to pay any compensation to the complainant and thus the complaint against the O.Ps   are liable to be dismissed.

              In support of his case the O.Ps citated  citations in their written version  as laid down by the Apex Court as well as NCDRC in the following cases.

1.Hindustan Motor Ltd. And another Vrs. N.  Sivakumar  2000 (10) SCC- 654.

2. Abhinandan Vrs. Ajit Kumar Verma & otrs. 2008 CPJ  1336 N.C.

3.Esspee Automotives Ltd. Vrs.  SPN  Singh  2015 (1) CPJ 192  N.C.

4. Cadbury India Ltd. Vrs. Kanteppa & Ors.  2016 (1) CPJ  436 N.C.

 

              It is a cardinal rule and upheld by the Hon’ble Supreme Court and the NCDRC in the aforesaid judgemens that it is the manufacturer who is  liable for the manufacturing defects in a product and not the dealer/seller or retailer.  Hence, this complaint is not maintainable against the O.Ps. 

 

It is held and reported  in  CPJ 2005 (2) page No.781 the Hon’ble State  Commission , Chandigarh observed  the dealer is the person who in the market comes in direct contact with the consumer and he assures about the quality   of goods sold and in case  the consumer  had problem with the mobile handset, the dealer was under an obligation to refer the matter  to the manufacturer for necessary  relief, which  in the  instant case was done.

The O.Ps  contended that duty to remove the defect in the product is on the manufacturer of the product or the authorized service centre of the  product. For the above contention  we perused the citation .  It is held and reported  in CTJ-2005, Page No. 1208 the hon’ble  Commission where  in  observed  “Both the dealer & manufacturer of the  product having defects  in it, are jointly and severally liable to the  purchaser, because he knows only the dealer from whom he purchased that  product and not its manufacturer”.  Further in the Written version no where the O.Ps  have   mentioned  the manufacturer address so as this forum  will direct the  manufacturer  to comply the same.  Due to non mention  of  the  manufacturer  address  detail    in the  written version  or  in the  bill   this forum observed    the O.Ps are  held responsible for refund  of the  price  of the above product.

 

Further   It is held and reported in CPR- 2009 (2) Page No. 42  where in  the Himachal Pradesh  State Commission  observed “ we may mention here that it is by now well settled that the C.P. Act, 1986 is a welfare  legislation  meant to give  speedy  in expensive and timely justice to the parties. Similarly it is also well know that where  two views are possible, one favourable to the consumer needs to be followed.”

           

            During the course hearing the complainant  filed Xerox copies  of   Retail tax invoice No. Invoice No. #FOYO103117-00029196 dt. 06.09.2016which is marked as Annexure-I.  Perused the above invoice. On perusal of the  invoice it is revealed  that  the O.Ps No.1  addresses was  mentioned. For this we perused another citation reported in  Consumer Law today 2014(1) page No. 153 where in the  Hon’ble  Goa State Commission observed “The tax invoice duly   signed by dealer can be considered to be an agreement between the parties subject to which the   sale was   made to the  consumer – liability for defect in article sold both the dealer and manufacturer  are jointly and severally.  Though you have not mentioned any where the manufacturer address  so you are liable to  refund the  price of the above product.

            Heard and 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  mobile set  to the complainant and claimed that the O.Ps caused deficiency in service and deprived of the complainant of enjoyment of the mobile 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 mobile 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 mobile set  require  servicing since  the date of its purchase, then it can be presumed that it is defective one and if the defective mobile 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 is appears that the mobile 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 mobile 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 mobile set  for such  and the defecates were not removed by the O.Ps who  know the defects from time to time from the complainant.

 

           On appreciation of the evidences adduce before it, the forum is inclined to allow the complaint against the O.Ps .

To meet the ends of justice the following order is passed.

                                                           

                                                                                                                O R D E R

                In  resultant the complaint petition  stands allowed  against the O.Ps on contest.

            The O.Ps   directed to return back the defective product from the complainant  by paying the price of the  mobile set  LENOVO Vibe K5 a sum of Rs. 11,999/-.  There is no  order as to cost and compensation.

            . 

            The entire directions shall be carried out with in 45 days from the  date of receipt   of this order. Serve the order  to the  parties free of cost.

Dictated and corrected by me.

            Pronounced in the open forum on          26 ^th. day of   March, 2018.

 

MEMBER                                                MEMBER                                                                                            PRESIDENT