For the Opposite Party No.1: EXPARTE.
For the Opposite Party No.2: Dr. Laxmi Narayan Dash, Advocate.
DATE OF FILING: 21.11.2015
DATE OF DISPOSAL: 17.11.2017
Dr. Alaka Mishra, Member(W):
The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act 1986, alleging deficiency in defective in goods and service against the Opposite Parties ( in short the O.Ps) and for redressal of her grievance before this Forum.
2. Briefly facts of the case are the complainant purchased a mobile phone CELKON Phablet 5 inch (12 cms) Android Dual Core Processor-AR50 from O.P.No.2 vide Bill /Invoice No. TARA7902/2 dated 05.12.2013 for Rs.7,999/-. The O.P.No.1 is the manufacturer of the said Mobile Phone and the O.P.No.2 is the authorized service centre of the O.P.No.1 for Berhampur area. The said mobile is found to be defective and did not function properly in a smooth condition like poor battery backup and other multifarious defects. The complainant complained the problems to the O.P.No.2 who immediately respond to the defect but did not rectify. The said defective mobile set remained almost all the time with the O.P.No.2 to rectify the defects but it is not yet rectified. Initially the O.P.No.2 assured that they will rectify the defect, but could not rectify the defects. After purchasing the said mobile set, the complainant has to run the service centre time and again by killing his valuable time and was harassed due to non-rectification of the defects. Hence, it is ascertained that the said mobile phone has some congenital manufacturing defects right from its manufacturing. The said mobile phone found to be defective in the very beginning of its use, which is within the guarantee period as prescribed by the manufacturer i.e. O.P.No.1. The complainant issued legal notices to O.Ps for rectification of the defect or to replace with a defect-free handset but all went in vain. The said mobile phone was found to be defective and handed over to the service centre i.e. the O.P.No.2 within the warranty period. It is also stated in the complaint that as per warranty terms and conditions if the product found defective during the first year of use, the consumer will have the option to get full refund of the price paid with interest. The manufacturer will be liable towards the buyer for damages arising out of the use of the defective product. It is also alleged that the complainant regularly approached the O.P.No.2 for return of his mobile phone by rectifying the defects but the O.P.No.2 instead of rectifying the defect, behaved in a rude/impolite manner and often he abused the complainant by using some obscene languages and also threatened him of dire consequences. Due to non-repairing of the mobile phone in time, the complainant faced many problems and suffered from mental agony and physical pain by running to the office premises of the O.P.No.2 for several times due to non-settlement of his problem in time and also suffered loss financially due to spending money towards purchasing the said defective handset and also victimized at the instances of O.P.No.2. The said defective handset is still with the custody of O.P.No.2 with due acknowledgement. Even after complainant had filed an application before the PLA against the O.Ps for amicable settlement but the O.Ps did not respond. When the O.Ps did not turn to rectify the mobile set or refund the cost of mobile, he has filed this consumer complaint alleging defect in goods and deficiency in service on the part of the O.Ps and prayed to direct the O.Ps to replace the mobile with a defect-free handset or alternatively refund the cost of the handset of Rs.7,999/- with up-to-date interest along with Rs.15,000/- for harassment and mental agony and Rs.5000/- towards cost of litigation in the best interest of justice.
3. Notice was issued against the O.Ps but the O.P.No.1 neither chooses to appear nor filed any written version hence the O.P.No.1 is declared set exparte on 24.05.2016.
4. Upon notice the O.P.No.2, the O.P.No.2 appeared through learned counsel Dr. L.N. Dash, Advocate and filed written version on 25.7.2016 and written argument on 03.06.2017 respectively. In the written version /argument it is stated that the complaint filed by the complainant against this answering O.P.No.2 is neither tenable nor maintainable under laws hence liable to be dismissed with cost. The O.P.No.2 is no more linked with the O.P.No.1 as service centre to answer the alleged allegations. The Retail Invoice filed by the complainant shows that the product was never purchased from the O.P.No.2 as averred at Para-1 of complaint. The O.P.No.2 is only a service centre but not selling centre. The documents filed by the complainant shows that the product has been purchased from HOMSHP 18 dispatched through Blue Dart Courier. The complainant never purchased the product from O.P.No.2 and hence the complaint of the complainant against this O.P.No.2 is veracious. It has been admitted by the complainant that this O.P.No.2 is the authorized service centre of the O.P.No.1. It has also been admitted by the complainant that the complainant complained the facts to the O.P.No.2 immediately who attended the same time and again. It has also been admitted that the said mobile set remained almost all the time with O.P.No.2. It shows that there is no deficiency of services on the part of the O.P.No.2. Moreover, the complainant in the entire complaint not whispered a line about the nature of defect of the mobile and hence has filed the dispute not in open mind. The complainant purchased the mobile on 05.12.2013 from MOM shop 18 and approached the O.P.No.2 on 06.11.2014 with the problem of battery backup which was rectified on 22.11.2014 and the complainant took the possession of his set on 01.12.2014 as per work order No. CM 14B 99110205 dated 06.11.2014. Again, the said product came to the service centre vide job sheet No. 50 and the defects were attached as per requirements. As such there is no deficiency in service on the part of the O.P.No.2, it is wrong to say that the O.P.No.2 ever abused or used obscene languages so also threatening of dire-consequences. This has not been supported by any documentary evidence. In the given facts and circumstances the complaint filed by the complainant against this O.P.No.2 neither maintainable nor tenable and so also not lawful having sanction under the provisions of Consumer Protection Act, 1986. Hence the O.P.No.2 prayed to dismiss the case with cost in terms of Section 26 of the C.P Act, 1986 to meet the ends of justice.
5. On the date of final hearing, the learned counsel for the complainant is on call absent since on previous date he had submitted his part of the case orally and prior to that he had also submitted written argument of his case. The learned counsel for the O.P.No.2 is present and submitted his arguments. We have heard arguments from the learned counsel for the O.P.No.2 and perused the materials placed on the case record. We have also thoughtfully considered the submissions made on the point of law and facts. On perusal of case record and after going through the written argument and other vital documents placed on record, we found that there is no dispute or doubt that the complainant purchased a mobile CELKON phablet 5 inch (12 cms) 3G Android Dual Core Processor-AR-50 from Tarash Overseas Pvt. Ltd online and received through Blue Dart on payment of Rs.7,999/- vide Bill/Invoice No. TARA790272 dated 05.12.2013. It is an admitted fact not in dispute that in this case the O.P.No.2 is the authorized service centre of the product in dispute. It is also a fact that within warranty period the said mobile found defective and sent to the service center for repairing on 6.11.2014. After repairing of the mobile set, it is handed over to the complainant on 1.12.2014 with remarks of engineer that ‘SWD Software upgrade need to check customer battery’. After that, again the mobile set found defective with the problem like auto on/off, net work problem and hanging problem etc on 19.2.2015. Accordingly, the problem of the mobile set was intimated to the O.P.No.1 who did not respond and not contested the case even after notice received from this Forum. On the contrary, the O.P.No.2 on the request of the complainant repaired the mobile set during the warranty period but failed to completely rectify the problems of the alleged set. In the aforesaid facts and circumstances of the case and in the absence of any written version on part of the O.P.No.1 to controvert complainant’s allegations, same is to be held correct. Similarly, as per the written argument and oral submissions of learned counsel for the O.P.No.2 it is an admitted fact that the mobile was received by the authorized service centre for repairing twice within the warranty period. For the first time, the mobile was repaired by the service centre within the warranty period and it was handed over to the complainant. The O.P.No.2 admitted that the mobile set was repaired on 06.11.2014 and was returned to complainant on 22.11.2014. The same problem arose once again on 01.12.2014 which could not be repaired by the O.P. service centre. In the foregoing fact and circumstance of the case, we are constrained to hold that the said mobile set was suffering from manufacturing defective. When a mobile set is found defective during the warranty period and even after repeated repairing done by the authorized service centre it was not rectified properly, it is to be held as inherent manufacturing defect of the alleged mobile set. As per the submissions of the learned counsel for the O.P.No.2, it reveals that the defective set along with accessories was with O.P.No.2 i.e. service centre and the complainant denied to have received back the same from O.P.No.2. Under this peculiar fact and circumstance, the O.P.No.2 is directed to return the defective mobile set along with accessories to the O.P.No.1 if not returned the same earlier. In the light of the above discussions, we are of considered view that the O.P. No.1 is liable to refund the cost of defective mobile set due to inherent manufacturing defect of the alleged mobile set during warranty period. As far as the cost of mobile is concerned, on verification of the money receipt we find that the complainant had purchased the same on payment of Rs.7,999/- of Celkon make from Tarash Overseas Pvt. Ltd through Blue Dart but unfortunately they were not made a party to this dispute as discussed above. Accordingly, since the product is made by Celkon Company, the O.P.No.1 is liable to refund the cost of Rs.7,999/- to the complainant since the said mobile set was found defective during its warranty period. Similarly, we are also convinced that the O.P.No.1 is also liable to pay Rs.2,000/- towards cost of litigation to the complainant since the complainant filed his case with the help of a professional Advocate to assert his rights due to indifferent attitude of O.P.No.1. In the light of the above discussions and taking into account to the facts and circumstances of the case, we allowed the case of the complainant against O.P.No.1 and dismissed against O.P.No.2 since there is no proved deficiency in service on part of the O.P.No.2 in this consumer dispute.
6. In the result, we allowed the case of the complainant against O.P.No.1 and dismissed against O.P.No.2. The O.P. No.1 is liable to refund the cost of defective mobile set i.e. Rs.7,999/- to the complainant together with litigation cost of Rs.2000/-. The aforesaid orders shall be complied by the O.P.No.1 within two months from the date of receipt of this order failing which the complainant is at liberty to recover the same under the relevant provisions of Consumer Protection Act, 1986. The case of the complainant is disposed of accordingly.
7. The order is pronounced on this day of 17th November 2017 under the signature and seal of this Forum. The office is directed to supply copy of this order to the parties free of cost and a copy of same be sent to the server of
