Orissa

Rayagada

CC/120/2017

Sri V. Durga Prasad - Complainant(s)

Versus

The Manager, Mobile - Opp.Party(s)

Self

31 Aug 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 120/ 2017.                                        Date. 31      .8   . 2018.

P R E S E N T .                

Dr. Aswini  Kumar Mohapatra,                                      President

Sri GadadharaSahu,                                                          Member.

Smt.PadmalayaMishra,.                                                  Member

 

Sri  V.Durga  Prasad,  S/O: Sri V.Narasimha Rao,  New Colony Po/  Dist: Rayagada, State:  Odisha.                                                                                             …….Complainant

Vrs.

1.The Manager, M/S. Manas  Trading,  Po/ Dist: Rayagada (Odisha).

2.The Manager, Samsung India Electronics Pvt. Ltd., A-25, Ground Floor, Front Tower, Mohan co-oprative Industrial Estate, New Delhi- 110044.

3.The Manager, Samsung Service Centre, New Colony, Rayagada(Odisha).

                                                                                       …  Opposite Parties

For the Complainant:- Sri V.Ram  Mohan Patnaik, Advocate, Rayagada.

For the O.P No.1  :-. Set  Exparte.

For the O.Ps  2  & 3 :- Sri K. C. Mohapatra and associates, Bhubaneswar

JUDGEMENT

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 mobile  price  a sum  of Rs. 25,900/- which was found  defective   during warranty period.

On being noticed the O.P  No. 2 & 3 appeared through their learned counsel and filed joint  written version refuting allegation made against them.  The O.P No. 2 & 3 taking one and another pleas in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986. The facts which are not specifically admitted may be treated  as denial of the O.P  No. 2 & 3. Hence the O.P No.  2 & 3 prays the forum to dismiss the case against  them  to meet the ends 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  06 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  from 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  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.

Heard arguments from the learned counsel for the    O.P  No. 2 & 3 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 mobile set Model No. Samsung  A76 bearing IMEI No.352811081402996 from the O.P.  No.1  by paying a sum of Rs. 25,900/-  with Retail Invoice No. 315 dt.16.12.2016 with  one year warranty( Copies of the invoice is in the file which is marked as Annexure-I). But unfortunately some  month  of its use  the above  set found defective and not functioning  i.e Auto switch off below  15% charged the above set  and hang during  use by the complainant. The complainant complained to  the O.P No.3 (service centre)  for necessary repair on Dt. 11.8.2017(Copies of the  same   is in the file which marked as Annexure-2).  Even such service  the above defects were persisting in the said set. So the complainant  intimated the same to the O.Ps for replacement or refund of the price of the mobile set   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.  Hence this case.

                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 one year.

It is admitted position of law that when   a  goods sold  by the  manufacturer has under gone  servicing   the complainant is entitled to thoroughly  check up  of the mobile set   and   to  remove   the defects  of   the above set  with fresh warrantee .

Coming to the merits of the case the complainant had purchased the Mobile set  from the O.P No. 1   on payment of consideration  an amount of Rs. 25,900/- on Dt. 16.12.2016 (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 handed over the same to the O.P. No.3 (service centre) for repair. The complainant argued that inspite of repeated attempt the service centre  could not rectified the defects of the above  set.

The  O.Ps No. 2 & 3   in their written version   contended that the complaint  is not maintainable since it is based upon false, frivolous and vexatious pleas. The complainant  has neither adduced any evidence nor submitted  any material particulars so as the mobile phone of the  complainant has defect or regarding the manufacturing  defect of his mobile phone or regarding the deficiency in service and unfair trade practice committed by the parties.  Hence the complaint of the complainant liable to be dismissed.  

The  O.Ps  No.2 & 3  in their written version  contended that if the complainant fails to  produce any evidence  regarding he has given  information to the O.P.No.2 about non rectification of the defect  from the alleged  above  set  prior to filing this  before this forum, then how this complaint will stand  against the O.P. No.2?  Further the complainant has not mentioned on which day defects  persisted in his mobile  phone  and no where he has stated that on which day  & on which  way informed either the O.P.  No.2 & 3 about non rectification of the defect from  his mobile set  after repair on Dt. 11.8.2017?   The  complainant has purchased  the above set from the O.P. No.1 on Dt. 16.12.2016 with a warranty of one year  from the date of purchase. After purchase  the complainant has handed over his said  set to  the  O.P. No.3 on Dt. 11.8.2017 as the set auto switch off below 15% charged and set hang   during  use apps.   Thereafter the service Engineer of the O.P. No.3 verified  and observed  no defect in the  hand set only the  software  was  corrupt.   Therefore the Service Engineer  immediately updated  the  software   of said alleged  set  and returned  the same with  defect free to the complainant on same day.   Since this date the complainant has been smoothly using the  above set till now without  caused any  defect  and without any allegation  made before any  answering O.P.  Also no allegation   was made by the complainant  before the O.P.No.2  regarding the defect of the  set   before/after  filing the said case.    The complainant has suppressed  all the  real  facts and at the end of warranty period of said alleged  set the complainant  filed this complaint  with illegal and unlawful gains from the O.Ps but also to tarnish  the    reputation of the  O.P. No.2.   No way the present O.P. have knowledge regarding defect of the  above set   of the  complainant  prior to filing of this case before forum, then how the O.Ps have failed to repair his mobile phone ?  It is clearly   reflected that there was no defect arose in the  above set during / after  warranty period.  Further    if any defect non rectified from the alleged  set  then why the complainant has not handed   over   the same  further  before the O.P.No.3 for  repair, who is nearest to house of the complainant?  If he has produce his mobile set  before the O.P. No.3 for   repair before/after dated.11.8.2017, then why he has neither  mentioned  any date when deposited for repair  and nor produced  any job sheet of repair.   Further there is no chnce of failure on the part of the   O.P. No.2 to repair any mobile phone.  Because all the defects  of above set  rectified by replacing new spares against the defective spares only.   Hence  the allegations of the complainant are  bald and vague.     

The  O.Ps  No.2 & 3 has cited citation in their written version  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. 2 &3  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.2   and to secure the unlawful gains from the O.Ps.

Again  the  O.Ps No. 2 & 3  has cited citation in their written version  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”.

 

Further   the  O.Ps No. 2 & 3 has cited citation in their written version  in the  case of Ghaziabad   Development  Authority  Vrs.  Union of India (2000)  6  SCC- 113  that no damages are payable for mental agony in cases of breach of ordinary commercial contracts.  Further,  another citation  in Bihar State Housing Board Vrs.  Prio Ranjan Rev. 1997 6 SCC- 487 it has been held that where damages are awarded there must be assessment thereof.  It was also held that the order awarding damages must contain an indication  of the basis upon which the amount awarded is arrived at.

                The O.P. No. 2 & 3   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.2 & 3  purchased from the  O.P.No.1 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.

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. 1   on payment of consideration  an amount of Rs. 25,900/- on Dt. 16.12.2016 (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. 11.8.2017  handed over the same to the O.P. No.3 (service centre) but till  date the  O.P. No.3 has not rectified the above set perfectly running condition.  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  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 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.2 (Manufacturer)  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. 2 (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  & 3   is ordered to refer the matter to the O.P. No.2  for early compliance.

                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   31^st. .day of    August, 2018.

 

MEMBER                                              MEMBER                                                                                              PRESIDENT