Orissa

Rayagada

CC/39/2022

Sri Siddharth Prusty - Complainant(s)

Versus

The Manager, Kapilas Cyber Solutions - Opp.Party(s)

Self

20 Sep 2022

ORDER

                     DISTRICT   CONSUMER DISPUTES  REDRESSAL COMMISSION, RAYAGADA,

AT:  KASTURI NAGAR, Ist.  LANE,   L.I.C. OFFICE     BACK,PO/DIST: RAYAGADA, STATE:  ODISHA, PIN NO.765001E-mail dcdrfrgda@gmail.com

…

 

C.C.CASE  NO.____39_____/2022                                      Date.  3    .9. 2022.

 

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                                      President.

Sri   Satis  Kumar  Panigrahi ,.                                         Member

 

 

Sri  Siddharth   Prusty, 

 Po/  Dist:  Rayagada(Odisha) 765  001.  Cell No.  7735266930 

….                    Complainant.

Versus.

1.The Manager,  Kapilas  Cyber  Solutions, Beside  Hotel Kapilas, Main Road,  Rayagada (Odisha)  765  001.

 

2.The Manager,  M/S. Samsung  India  Electronics Pvt. Ltd., having its Regd. Office at A-25, Ground floor, front tower, Mohan Co-operative Industrial  Estate, New Delhi- 110044.                                            … Opposite parties

For    the complainant   Self.

For the O. Ps     Sri K.Ch. Mohapatra, Advocate, Bhubaneswar.

JUDGEMENT

The  crux of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for  non rectification of Samsung  mobile set    which was found defective within warranty period and not removed the defects  for which  the complainant  sought for redressal of the grievances raised by the complainant.  The brief facts of the case are summarized here under.

 

That  the complainant  had purchased  a Samsung Galaxy Model No. Galaxy   F  42  5 G  (8 / 128)  from the O.P. No.1 on Dt.30.01.2022  on  payment  of amount a sum of Rs.23,000/ The O.Ps. have   sold  the  said set to the complainant providing  one year warranty period  bearing  Tax invoice No.622  Dt. 30.01.2022.  After using some months the above  set found defective. Then the same set put forth  before  the Service centre.     The service centre has not rectified the defects of the  above set which  is not useful for the complainant. The  above set   found defective  after few months working   within the warranty  period. The complainant complained the matter to the  O.Ps from time to time, but  no  action has been taken by the O.Ps till date. Though he has given the service, but the same trouble continuing  i.e. Net work problem, Charging problem,  Heat, Features automatic change, Hanging, battery not given backup.    Now the above set is unused.    Hence this C.C. case  filed by the  complainant and prays    direct the O.Ps   to  refund the price of the  above set   and to order to pay  compensation and cost of  litigation and such other  relief  as the commission  deems fit and proper for the best interest of justice.

Upon Notice the O.Ps   put in their appearance and filed written version in which  they refuting allegation made against them.  The O.Ps   taking one and another pleas in the written version   pray to dismiss the complaint as it is not maintainable in the C.P. Act,  The facts which are not specifically admitted may be treated  as denial of the O.Ps . Hence the O.Ps  prays to dismiss the case against  them  to meet the ends of justice.

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

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

        FINDINGS.

There  is no dispute that   the  complainant had purchased  a Samsung mobile  from the   Manager, Kapilas cyber solution, Beside over bridge, Station  Road,  Po/Dist: Rayagada  (Odisha)  on Dt. 30.01.2022  Model No. Galaxy   F  42  5 G  (8 / 128) on  payment  of consideration a sum of Rs.  Rs.23,000/  vide   Tax  invoice  No. 622  Dt. 30.01.2022 The O.Ps. had   sold  the  said set to the complainant providing  one year warranty period. (copies of the       bill    is  available  in the file which is marked as Annexure-I ).

After  using  some  months i.e with in the warranty period  the complainant  has  shown  defective in the above set and  it became   unused. Hence   the complainant  approached the  service centre  situated at Rayagada(Odisha)  for its rectification.  But the   Service centre had not rectified the  same  defective  within the warranty period.

            The main grievances of the complainant is that due to non  rectification of the  above  set perfectly  within warranty period  he wants  refund  of purchase  price of the above set. Hence this C.C. case.

The O.Ps  in  their written version contended that  the complainant had not  approached the O.Ps.  for the defect or the defect could not removed from his alleged  set  and also if the service centre   has no knowledge regarding any allegation of defect  of the alleged  set prior  to filing  of this case, then how the cause of action will arise against the O.Ps on absent of knowledge  about any defect of the alleged set.  Further if the complainant fails to produce  any evidence regarding  he has approached to the O.P. (Manufacturer) about non rectification  of the defect from the alleged  set prior to filling this case before forum, then how this complaint  will stand  against  the O.P.    The complainant has not come with clean hands before this forum.   The complainant has not mentioned any date on which day defect persisted in his set and no where he had stated  that on which day & on which way  informed either the O.P.    or the service centre, Rayagada about  non rectification of the defect  from his alleged set.  Also the complainant has no where alleged   that the  Service centre, Rayagada has committed the deficiency in service because the O.Ps are not  the service provider.

The O.Ps are   taking one and another pleas in the written version and had mentioned  a lot of citations of the Apex  courts and   sought to dismiss the complaint as it is not maintainable  in the C.P. Act.

The O.Ps in their written version relied  citations which are mentioned  here:-

It is held  and reported in  CPJ – 1997(2) page  No. 81 in the case of Punjab Tractors Ltd.  Vrs.  VirPratap  where in the   Hon’ble  National Commission observed  “Where the complaints of the complainant were duly and promptly attended by the O.P. and no reliable evidence was produced by the complainant in support of his  case that he suffered a loss due to inconvenience caused to him, the  complainant in this case is not entitled to any  relief. In the present case the OPs have duly attended the complaints of the complainant and have therefore never been deficient in providing the services  to the complainant.”

Further it is held and reported in  CPJ 1992 (1) page No. 97 in the case of Sabeena Cycle emporium chennakhaadaVrs.  ThajesRavi  M.R. Pancha Villa VedarEzkhone P.O.  where in the  Hon’ble State CDR Commision, Kerala  observed  “Where the complainant alleges defects in the goods, the forum is bound to determine this fact on the basis of clear evidence by way of expert opinion. The aforesaid proposition of law has also been reaffirmed by the  Hon’ble State Commission,West Bengal  in the case of  Sri Keshab Ram MahtoVrs. Hero Honda Motors Ltd and Anrs.  2003(2) page No. 244. 

Again  it is held and reported  in AIR-2006 S.C 1586   in the case of  i.e. MarutiUdyog Ltd. Vrs. Susheel  Kumar Gabgotra and others where in the Hon’ble Supreme Court observed Warranty conditions clearly refers to replacement of defective part not the  car  Not a case of silence of a contract of sale of warranty”. The O.Ps vehemently contended that in this case there is no defect in the  mobile set of the complainant, but the complainant has filed this fabricated complaint only to  tarnish the reputation of the O.Ps  and to secure the unlawful gains from the O.Ps.

 Further is it held and reported  2014(3) CPR- 724   in the case of Bajaj Tempo Ltd Vrs. Shri  Ajwant Singh & Another where in   the  Hon’ble National Commission opined that “Manufacturing defect must be proved by expert opinion.

For better appreciation  this commission  relied citations  which are mentioned here under:-

It is held and reported in Current Consumer Case  2005  Page No. 527 (NS) in the case of Meera&Co Ltd. Vrs. ChinarSyntex Ltd  where in the Hon’ble National Commission  observed “Consumer-    Generating set purchased -  defects developed  during  warranty  period - repairs done on payment - dealer can not be absolved from his liability   because manufacturer has not  been impleaded- dealer deficient in service- order  to dealer   refund   amount with interest to the complainant.

Again It is held and reported  in CTJ-2005, Page No. 1208 where in  the hon’ble  National Commission   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   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.

           

            Again it  is  held and  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. 

 

Further It is held and reported in C.P.R-2012(1) PAGE No.  303  in the case  of LogaPrabhuVrs. Adonis Electronics Pvt. Ltd and ors  the Hon’ble  State  CDR Commission, Chennai  where  in observed  “Consumer  is entitled to free service/replacement during warranty period.

 

Again  It is held and reported in NC  & SC on consumer cases (Part-VI) 1986 to 2005  page  No. 9089(NS) the Hon’ble National Commission, New Delhi where in observed   Motor Vehicle- dealer’s responsibility- vehicle sold by dealer after receiving payment- manufacturing defect- dealer can not be absolved  from his liability in refund the price or replacement-  jointy  liable with manufacture.

 

 

Now we have to see whether there was any  negligence  on the part of the O.Ps in treating the complainant as alleged ?

We  perused the  documents filed by the complainant  and it  proves that the complainant has purchased a mobile set  from the  O.P. No.1  and after its purchase when the mobile set was found defective the  O.P failed to rectify the defect.The  complainant has approached the service  from time to time but  the defects were not removed by the service centre.   At the time of selling their products the O.Ps should ensure that they would provide after sale service to the customer but in this case  the O.Ps sold their produce and failed to give after sale service which is a clear deficiency in service on the part of the O.Ps. At this stage we hold that  if the mobile set  require service immediately after its purchase then it can be presumed that it is manufacturing  defective   and  if a defective mobile is supplied, the consumer  is entitled to get refund of the price of the product/article  or to replace a new one.  In the instant case as it appears that the mobile set which was purchased by the complainant had developed defects after  using some months   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 a mobile set  with an exception to have the effective benefit of use of the product but in this case the complainant was deprived of getting beneficial use of the article and deprived of  in using the mobile set for such a long time and the defects were not removed  by the O.Ps .

            .

In view of the above discussion relating to the above case and  In Res-IPSA-Loquiture  as well as  in the light of the settled legal position  discussed  as above referring citations the plea of the  O.Ps to avoid the claim  which is Aliane Juris. Hence  we allow the above complaint petition  in part.

 

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

                                                O R D E R

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

The O.P No.2 (Manufacturer)    directed to return back the defective product from the complainant  by paying the price of the  above Samsung mobile set   a sum of Rs. 23,000/- . Parties are left to bear their own cost.

The O.P. No.1(Dealer) is directed to refer the matter to the  O.P. No.2 for early  compliance  of the above order.

 

            The entire directions shall be carried out with in 30 days from the  date of receipt   of this order.Service the copies of the order to the parties free of cost.

Serve  the copies of the order to the parties as per rule free of cost.

Dictated and  corrected by me.

                Pronounced in the open forum on        3^rd   day of    September,  2022.

 

 

                                                                                MEMBER                                                   PRESIDENT