Orissa

Rayagada

CC/162/2017

Santoshini Das - Complainant(s)

Versus

The Manager, Majhi Gouri Telecom - Opp.Party(s)

Self

14 Aug 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No.        162        / 2017.                            Date.    14  . 8   . 2018.

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                   President

Sri Gadadhara Sahu,                                                    Member.

Smt.Padmalaya Mishra,.                                              Member

 

Sri  Santoshini Das, C/O:  Sudhir Kumar Padhi,  Goutam Nagar, Ist. Lane,  Po/Dist:Rayagada   (Odisha). Cell No. 9437441186.                                                                                                                                                            …. Complainant.

Versus.

1.The  Manager, Majhigouri Telecom, Hatipathar    Road,  Po/Dist: Rayagada  (Odisha).

2. The Manager, Samsung Service Centre, Bapuji Nagar,  Bhubaneswar(Odisha).

3.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.

Counsel for the parties:                                 

For the complainant: - Self.

For the O.Ps  :- Sri  K .C. Mohapatra, Advocate, Bhubaneswar.

                                                          J u d g e m e n t.

          The  present disputes arises out of the complaint petition filed by the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for non refund of  price  towards  Samsung  mobile set which was  not functioning within the warranty period. The brief facts of the case  has summarised here under.

                1. That  the complainant  had purchased  a Samsung  Galaxy J 1 4 G  Sl. No. J 120 Gold  352805-08, 056686-8 and No.R28HCI03C3V  from the O.P. No.1 on Dt.09.02.2017  on  payment  of amount a sum of Rs.6,800/-. The O.Ps. have   sold  the  said set to the complainant providing  one year warranty period  vide Retail invoice No.94 Dt. 09.02.2017.  The  above set   found defective  within the warranty  period. The complainant complained the matter to the  O.P No.2  on Dt.19.9.2017, Dt.25.9.2017. Inspite of repeated  attempt  by the O.P. No.2  for rectification  of the defects but the same trouble continue  i.e. mobile  data not functioning constant.   Now the above set is unused.  But  no  action has been taken by the O.Ps till date. Hence this complaint petition  filed by the complainant and prays the forum direct the O.Ps to refund  purchase  price of the above mobile set and such other relief as the hon’ble forum deems fit and proper  for the best interest of justice.

On being noticed  the O.P No.1  neither entering in to appear before the forum nor filed their  written version inspite of more than  5 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.P No.1 .  Observing lapses of around 8 months  for which the objectives  of the legislature of the C.P. Act going to be destroyed to the prejudice of the interest of the complainant.  Hence after hearing  the  counsel for the complainant set the case  exparte against the O.P No.1 . The action of the O.P  No. 1  is against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.P. No.1  was  set exparte  as the statutory period  for filing of  written version was over to close the case with in the time frame permitted by the C.P. Act.

On being noticed  the learned counsel for the O.Ps No.2 & 3  filed written version inter alia  challenged  the maintainability of the  petition before the forum. The averments made in the  petition are  all false, and O.Ps 2 & 3   deny   each and every allegation made in the petition. The O.Ps 2 & 3 taking one  & other grounds in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986.  The O.Ps 2 & 3    prays the forum to dismiss the complaint petition  for the best interest of justice.

 

The O.Ps appeared and defend the case.  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 forum  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.

From the records it reveals that, there is no dispute that the  complainant had purchased a Samsung  Galaxy J 1 4 G  Sl. No. J 120 Gold  352805-08, 056686-8 and Serior  No.R28HCI03C3V  from the O.P. No.1 on Dt.09.02.2017  on  payment  of consideration a sum of Rs.6,800/- (Copies of the  bill is in the file which is marked as Annexure-I). The O.Ps. have   sold  the  said set to the complainant providing  one year warranty period  vide Retail invoice No.94 Dt. 09.02.2017.  The  above set   found defective  within the warranty  period. The complainant complained the matter to the  O.P No.2  on Dt.19.9.2017, Dt.25.9.2017. Inspite of repeated  attempt  by the O.P. No.2  for rectification  of the defects but the same trouble continue  i.e. mobile  data not functioning constant. Even such service the above problems persisting in the above set and being asked  O.Ps authorized person advised to move the matter to the company  for better service, but the manufacturing company had paid deaf ear to the genuine complaint.  Hence the above C.C. case.

The O.Ps 2 & 3 in their written version para No.6 contended that  the O.P. No.3  are made repair  directly by the Samsung authorised service centre after getting  complaint from the customer through on line registration. Hence with out  online registration of complains no repair will provide to customers by the authorised service centers.  No point  of time the  complainant has informed to the O.P No.2 or any authorised service centre after Dt.19.9.2017 if the defect was not removed  from her mobile phone. Also she has not made  allegation before the  O.P. No.3 regarding  the defect, if any persisted in her mobile phone after repair.  Then how the complainant has alleged in para -2 of the complaint that,  on 19.9.2017 and 25.9.207 in spite of repeated  attempt by the O.P. No.2 for rectification of defects  but the same trouble continue  i.e the mobile date not functioning  instant and now the above  set is unused, but no action has taken by these OPs till date. It is humbly submitted that, if after repair same trouble was continued then how  the complainant has received   the alleged mobile phone on Dt. 19.9.2017 from the O.P. No.2 ? Also the complainant has not produced said mobile phone before the O.P. No.2  or   any authorised service centre on Dt. 25.9.2017 if the defect was not removed  from  her mobile  phone. Also never mentioned on which day and on which way she has made allegations before  the O.P.No.3 for her mobile phone.  Further in the said para how he has presented that no action taken by  the O.Ps.  Again the complainant has never submitted any document/job sheet regard repair her mobile  phone. Hence these statements of the complainant are contradicted  and absolutely impossible.  These  statements  are not  digested on the part of the  O.P. No.2. Because  there is no defect which can not be removed by  the service   personnel of the O.P.No.3.  As such all defects must be removed only by replacing the defective spare from the defective unit.  Hence there is  no chance  of non rectification of any defect if new spare is available   before them against the defective spare. The complainant has not come  with clean hands before this forum  and suppressed all real history of her alleged  set. The allegations of the complainant are wrong, baseless, concocted, false misconceived, frivolous and vexatious and thus this complaint is liable to be dismissed on this ground also.

 

The O.Ps 2 & 3 in their written version para No.7 contended that  it is pertinent to mention here that, if the complainant has not approached the O.P. No.3 for the defect or the defect could not remove from  her  alleged set and also if the O.P. No.3 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.P No.3  on absent of knowledge about any defect of the alleged set.? Further if the  complainant fails to produce any evidence regarding she has  approached the  O.P. No.2   and O.P. No.3 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.Ps No.2 & 3 ? The complainant  has not come with clean hands before this  forum. The allegations of the complainant are false, baseless, misconceived, frivolous and vexatious.  It is quite  impossible to believe  the complainant on simple submission of the complainant. The complainant be put to strict proof of the same, otherwise the cause of action did not arise against the   O.P. NOP.2  to file this case before forum and thus the complaint is not  liable to get any relief claimed there on and is liable to be rejected on this ground alone.

The O.Ps 2 & 3 in their written version para No.8 contended that   through out this complaint, no where she has stated that on which day and on which way informed either the O.P. No.1 or  the O.P. No.2  or  O.P. No.3 or any other service centre about non rectification of the defects from her alleged  mobile set after 19.9.2017, if it is not in a perfect condition. Then  how the complainant  has alleged  that the O.Ps have committed the  deficiency  in service?

The O.Ps 2 & 3 in their written version para No.9 contended that   there is neither any service history of the alleged set before the answering O.Ps nor any service job  sheet related to repair of the alleged set provided by the complainant. Also the complainant  has neither categorically stated the harassment, mental agony, & financial loss suffered by her nor she has adduced  any evidence regarding same. 

The O.Ps 2 & 3 in their written version para No.10 contended that   in the present case the complainant  has purchased the alleged  set from the O.P. No.1  on Dt.9.2.2017  with a warranty one year from the date of purchase and used same smoothly.  After some months  on Dt.19.9.2017 in oblique motive and  with malafide intention the complainant has produced her mobile set for repair before the  O.P. No.2  for the defect  of handset hang, Net slow & some time mobile data auto off.   So the O.P. No.2  has received the mobile phone from the complainant with creating a online job No. 4245468362 Dt.19.9.2017 and thereafter  the service engineer of the  O.P. No.2  immediately verified the same and  observed  that there was no defects in the above set on present of the complainant  and it was running fine.  Without  delay the O.P. No.2 has delivered  the alleged set to the complainant on same day without any repair. Since thereafter  the complainant has used the unrepaired the above set smoothly without any allegation raised by her before any O.P. Thereafter all of sudden  on Dt. 30.12.2017 the complainant has failed this complaint  with misconceived, wrong, unfounded, baseless, false, untenable, imaginary, vexatious and frivolous facts on suppressed all the real facts not only to secure the illegal & unlawful gains from the O.Ps but also to tarnish the reputation of O.P. No.3. Hence all the allegations of the complainant and bald and vague. It  is not  possible  to believe the facts of complaint on simple submission of the complainant.

The O.Ps 2 & 3 in their written version para No.11 contended that   law well settled that, the burden of proof lies with the complainant she has to prove her case   beyond all reasonable  doubts. The complainant has miserably failed to prove the same against   these answering  O.Ps and also failed to provide  any evidence/document regarding the same. Hence the  averments  made by the complainant  are all balled lie and she is  not entitle to get any relief which prayed in the   complaint and liable to be dismissed.

The O.Ps.   in their written version para No. 14 contended that  it is settled proposition of law as held in  Ravneet Singh BaggaVrs. KLM Royal Dutch Airlines, 1999(3) CPJ- 28 (SC), it was  held that the burden of proving  the  deficiency in service  is upon the   person who alleges it.  In case of   bona  fide    disputes to willful fault,  imperfection, shortcoming or inadequacy in the quality,  nature or manner of performance in the service can be informed. If on facts it is  found that the person or authority rendering service had taken all  precautions and considered all relevant facts and circumstances in the  course of the transaction and that their  action or the final decision was  in good faith, it can not be said that there  had been any deficiency in service in the case in hand the complainant has failed to prove any  deficiency in service on the part of the O.Ps.

The  O.P.  No.1 & 2 in their written version  para-15   has  mentioned citation i.e. Maruti Udyog Ltd. Vrs. Susheel  Kumar Gabgotra and others (AIR-2006)S.C 1586 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 to warranty”. The O.P. No. 1 &2  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.P No.1   and to secure the unlawful gains from the O.Ps.

The  O.P. No. 1 &2 in their written version  para-16   has  mentioned   citation  in the case of Bajaj Tempo Ltd Vrs. Shri  Ajwant Singh & Another reported in  2014(3) CPR- 724  N.C.,  the  Hon’ble National Commission opined that “Manufacturing defect must be proved by expert opinion”.

To counter the above  decision  the complainant argued  that there is a catena of  judgments   of   apex court  are there   that  in   every case  expert opinion is not mandatory.

Admittedly the  purchase of the mobile hand set of  Samsung Company  by the complainant is not denied.  The O.Ps have given an undertaking that they have   ready to  give the free  service as per the conditions of the warranty given to the said  set.  The complainant submitted that  as  per the  warranty condition  he approached  from pillar to post but the complainant  not get any  fruitful  result  till  date from any of  the  O.Ps.

            It is well settled principle of law that  no consumer will make any such complaint if there is no such deficiency. Hence the action of the O.Ps for not giving the required service  to the complainant is a deficiency in service  on the part of the O.Ps.

            Further it is observed that the complainant is deprived of enjoyment of the mobile set for such a long time and caused mental torture and harassment to the complainant.  Further more the complainant is a women, she  can not move the service centre from time to time for the above defective set.

            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 papers filed by the complainant for replacement of New  set from the very beginning.   Inspite of  services  given by the O.Ps the defects of the  above set of the complainant  could not be rectified.  We hold at this stage if the above set  required frequent servicing then it can be presumed that it is defective. If a defective set is supplied  a consumer is entitled to get refund of the price of the article or to replace a  new set and also the consumer concerned  is entitled and has a right to claim compensation and cost to  meet his mental agony, financial loss.

In the instant case as it appears  that the above set which was purchased  by the complainant  had developed defects and the O.Ps engineers are   repeatedly attempts  to restore  its regular functioning  but  not made perfect running condition    of the above set till  date.

            It appears that the complainant invested a substantial amount and purchased the above  set with an expectation to have the effective benefit of use of the mobile set. In this case the complainant was deprived of getting beneficial use   of the set and deprived of using the above set for such a long time and the defects were not removed by the O.Ps who could know the defects from time to time from the complainant. In the instant case the O.P No.3  is  liable. 

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  is allowed  on contest against the O.Ps.

The O.P. No. 3 (Manufacturer)  is directed to return back the defective product from the complainant  inter alia  replace the Samsung mobile set   with a new one with fresh warranty without charging any extra amount.    There is no order as to cost and compensation.  

            The O.P. No.1 & 2   are  ordered to refer the matter to the O.P. No.3  for early compliance of the above order.

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

Dictated and corrected by me.          Pronounced in the open forum on        14th  .       day  of    August, 2018.

 

MEMBER                                               MEMBER                                                                                              PRESIDENT