For the Complainant:- Self.
For the O.P No. 1 :-Shri Dr. Vikas Mishra and Sri Gopabandhu Naik, Advocate
For the O.P No. 2 & 3:- Self.
The Order pounced in the open forum in presence of both the parties . the complainant petition is allowed . Accordingly the case is close.
ORDER.
The present disputes arises out of the complaint petition filed by the above named complainant alleging deficiency in service against the afore said O.Ps for non replacement the Mobile set with new one . The brief facts of the case are summarized here under.
1. That the complainant purchased a Mobile Hand set i.e. Maxx model No. MX- 372 IMEI No. S 357847040419486 and IMEI No. M 357847040419478 from the O.P. No.2 on 30.06.2014 for a sum of Rs. 2,000/- with one year warranty . He was issued with a warranty card and Invoice Sl.No.342 Dt.30.06.2014. That on Dt. 14.11.2014 the above mobile set had given problem and not working properly. So the complainant had given the same to the Service centre i.e O.P. No.3 for repair and replacement of the same. But till date the O.P.No.3 has not handed over the same to the complainant. Hence this case before the forum for redressal of his grievance and to direct the O.Ps to replace the mobile set with new one or in the alternative to pay back the amount of Rs. 2,000/- towards purchase of the set along with interest with bank rate from the date of purchase till the date payment and further direct the OPs to pay compensation and also cost of litigation to the complainant & such other relief as the forum deems fit and proper for the interest of justice.
2. On being noticed the O.P. No. 1 appeared through their learned counsel and filed written version before the forum. The O.P. No. ! further submitted that all the averments made in the present complaint against the answering respondent qua the defective mobile handset are denied except those which are specifically admitted in the reply. The present complaint is not maintainable as there is no deficiency on the part of the O.P as alleged in the complaint therefore the complaint should be dismissed on this ground. The complainant has failed to establish any case having suffered loss due to the act of the O.P and thereby claiming of damages by way of the present complaint is totally frivolous. That this forum has no territorial jurisdiction to entertain the above complaint. That the complainant had purchased handset from the O.P. No.2 however the complainant may be put to strict proof of the same. That they have no involvement in the transaction of sale of mobile to the consumer. That the averments which are not specifically denied to have been denied. The O.P No.1 is prayed the forum to dismiss the complaint petition against the O.P. No. 1 for the best interest of justice.
3. On being noticed the O.P.No.2 filed written version and submitted that That he had sold the above mobile set on receipt of consideration from the complainant. After receipt of the complaint from the complainant regarding non functioning of the above mobile set he had sent the above mobile set to the service centre i.e. O.P. No. 2. So there is no deficiency in service on his part & prayed the hon’ble forum to dismiss the above petition against the O.P. No.2 for the best interest of service.
4. On being noticed the O.P.No.2 filed written version and submitted that he had received the above mobile set for rectification of the defects from the complainant. That due to non rectification of the defects permanently in the above mobile set and the complainant brought the same to the service centre repeatedly for its non- functioning he had informed the O.P. No.1 (manufacturer) for necessary action. So there is no deficiency in service on his part & prayed the hon’ble forum to dismiss the above petition against the O.P. No.3 for the best interest of service.
The O.Ps have appeared and filed their written version. Arguments from the the O.Ps and from the complainant heard. Perused the record, documents, filed by the parties.
The learned counsel for the O.Ps. No.1 vehemently advanced arguments touching the points both on the facts as well as on law.
FINDINGS.
5. The O.P. No.1 vehemently argued that the present complaint is not maintainable before the forum. We are of the opinion that the case is relating to defective goods which is covered under section 2(i)(f) of the C.P. Act. The C.P. Act which provides that “Defective means any fault, in imperfection or shortcoming in the quality, quantity, potency, purity are standard which is required to be maintained by or under any law for the time being in force”. After amendment made by the C.P. Act of 2002 wherein it is made clear that when a complainant is using the product of the O.P.No.1 & 2 purchased from the O.P.No.3 he is also coming within the definition of consumer and the service provided or attached to the said goods in the shape of warranty or guarantee is also available to the users.
The O.P. No.1 again argued that this forum has no territorial jurisdiction to entertain the above complaint. Section 11(2) (a) of the C.P. Act specifically lays down that the Dist. Consumer fora can entertain complaints within the local limits of whose jurisdiction the O.P. actually or voluntarily resides or carries on business or has a branch office or for personally works for gain. In the present case the service centre of the O.P. No.1 is functioning at Bhawanipatna, Dist: Kalahandi, State: Odisha.
On perusal of the record it is revealed that the fact of the purchase of Mobile set is not denied by the O.Ps. It is admitted position the complainant having purchased above goods for consideration having the warrantee for replacement/refund is entitled to him
It is admitted position of law that when a goods sold by the manufacturer has under gone servicing and even such servicing the same defects persist it is deemed to be a manufacturing defect. Hence the complainant is entitled to thoroughly check up of the mobile set and to remove the defects of the above set with fresh warrantee .
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.
Coming to the merits of the case the complainant had purchased the Mobile set from the O.P No. 2 on payment of consideration an amount of Rs. 2,000/- on Dt. 30.06.2014 (copies of the retail invoice) marked as Annexure-I. On perusal of the record we observed the complainant after using some months for rectification of defects on Dt. 25.3.2015 handed over the same to the O.P. No.3 (service centre) but till date the complainant had not received the same from the O.Ps. So the complainant purchased another mobile set from the market.
On perusal of the record we observed that the complainant made several complaints with the O.Ps pointing out the defects which goes on to show that right from the very beginning the above set was not performing well and continued repeatedly to develop defects resulting in non-performance which was intimated by the complainant. Further we observed that on repeated complaints made by the complainant to the O.Ps neither the defects have been removed nor replaced with a new set. We observed inspite of required services made with in the warranty period the above set could not be rectified. We hold at this stage if the above set required frequent servicing then it can be presumed that it has a manufacturing defect. If a defective set is supplied a consumer he is entitled to get refund of the price of the set or to replaced with a new set and also the consumer concerned is entitled and has a right to claim compensation and cost to meet the mental agony. In the instant case as it appears that the above vehicle which was purchased by the complainant which 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 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.1 is liable.
In the above facts, circumstances & on perusal of the record, the complaint petition, documents, written argument and referring on above Citations there exists a strong “prima-facie” case in favor of the complainant.
Hence to meet the ends of justice, the following order is passed.
ORDER.
In the result with these observations, findings the complaint petition is allowed in part on contest against the O.Ps.
The O.P No. 1 is ordered to refund purchase price of the Maxx-372 a sum of Rs.2,000/- to the complainant. The O.P No.1 is further ordered to pay Rs.1,000/- towards compensation for mental agony. No cost.
The O.P No.1 is ordered to comply the above directions within 30 days from the date of receipt of this order failing which the complainant is at liberty to file execution proceeding as laid down in the C.P.Act for realization of the same from the O.Ps.
Dictated and corrected by me
Pronounced on this 1 7th. Day of November, 2015.
Member. Member. President
Documents relied upon:-
By the Complainant:-
- Xerox copies of the Cash memo
- Xerox copies of service job sheet.
By the O.Ps:-
Nil.
President
17.11.2015.
The Order pronounced in the open forum in presence of the parties.
The complaint petition is allowed in part on contest against the O.Ps.
The O.P No. 1 is ordered to refund purchase price of the Maxx-372 a sum of Rs.2,000/- to the complainant. The O.P No.1 is further ordered to pay Rs.1,000/- towards compensation for mental agony. No cost.
The O.P No.1 is ordered to comply the above directions within 30 days from the date of receipt of this order failing which the complainant is at liberty to file execution proceeding as laid down in the C.P.Act for realization of the same from the O.Ps.
