Orissa

Rayagada

CC/25/2018

Sri Bhoosan Behera - Complainant(s)

Versus

The Manager, Motorala Mobility india Pvt. ltd., - Opp.Party(s)

Self

28 Mar 2019

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA, Pin No. 765 001.

 

C.C. Case  No.       25/ 2018.                                         Date.      9    4.2019.

 

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                       President.

Sri   Gadadhara  Sahu,                                          Member.

Smt. Padmalaya  Mishra,                                     Member.

                                   

Sri Bhoosan Behera,  Behera Pan shop, Near Agriculture office,   Po/Dist:Rayagada   (Odisha). 765 001,  Cell No.97762-13525.                                                                                                                                                                                                    …. Complainant.

Versus.

1.The Manager, MotorlaMobality India Pvt. Ltd., 12^th. Floor, Tower D, DLF Cyber greens, DLF  Cyber city, Gurgaon- 122002 (India).

2.The Manger, Health and Happiness Private Ltd., Arana Projects, Situated  at Old Delhi Road, Shimla Mouza, Dist: Hoogly, Kolkota(West Bengal) 712249.(India).

3. The Manager, Regd.office,     Health and Happiness Private Ltd., H No.85,G-F, Ghoda Mahalla, Opposite  Primary School, Aya Nagar,  New Delhi- 110047                                                                                                                            … Opposite parties.

Counsel for the parties:                         

For the complainant: - Self.

For the O.Ps 1 :- Sri Braja  Sundar Nayak, Advocate, Rayagada.

For the O.P  No.2 & 3:- Set exparte.

JUDGEMENT

The  curx of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for  non refund  of mobile price 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   has  purchased  Moto E4 plus (fine gold, 32 GB) IMEI/ SL. No.35563208898989810, 355632089359815   from the O.P. No.1 on Dt.18.08.2017  on  payment  of amount a sum of Rs.9,999/- through on line Flipkart bearing  invoice No.#FAAKS1800085017 Dt. 18.8.2017. The O.Ps. have   sold  the  said set to the complainant providing  one year warranty period . The above set   found defective  within the warranty  period. The complainant complained the matter to the  Service centre situated at  Berhampur (Odisha) State on  on Dt.20.01.2018. Inspite of repeated  attempt  by the service centre   for rectification  of the defects but the same trouble continue  i.e. Mobile hanging too much, heating a lot, now mobile not switching on.   Now the above set is unused.  But  no  action has been taken by the O.Ps till date.  Hence this C.C. case. The complainant  Prays the forum  direct the O.Ps to  refund purchase price of the Moto E4 plus (fine gold, 32 GB)  a sum of Rs.9,999/-  & such other  relief as the  forum deems fit and proper in the interest of justice.

Upon  Notice, the O.Ps No.1   put in their appearance and filed written version through their learned counsel in which  they refuting allegation made against them.  The O.Ps No. 1  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.1. Hence the O.P No.1  prays the forum to dismiss the case against  them  to meet the ends of justice.

On being Noticed, the O.Ps 2 & 3  neither entering in to appear before the forum nor filed their  written version inspite of more than  10 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.Ps 2 & 3.  Observing lapses of around 1(One) year  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.Ps 2 & 3  . The action of the O.Ps 2 &34   are against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.Ps. 2 & 3 are  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.1  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.

Undisputedly the  complainant has purchased    Moto E4 plus (fine gold, 32 GB) IMEI/ SL. No.35563208898989810, 355632089359815   from the O.P. No.1 on Dt.18.08.2017  on  payment  of amount a sum of Rs.9,999/- through the O.P. No. 2 & 3  on line Flipkart bearing  invoice No.#FAAKS1800085017 Dt. 18.8.2017 (Copies of the  invoice  are in the file which is marked as Annexure-I). Undisputedly   the O.Ps. have   sold  the  said set to the complainant providing  one year warranty period.  Undisputedly the above set   found defective  within the warranty  period. So the  complainant complained the matter to the  Service centre situated at  Berhampur (Odisha) State on  on Dt.20.01.2018( Copies of the service report  is in the file which is marked as Annexure-2).

The main grievance of the complainant was that  inspite of the  repeated  attempt by the service centre the above set found defect and not working properly. Hence  this C.C. case for refund of price of the  mobile set.

The  OP.  No. 3 vehemently submitted before the Forum that the complainant at no point of time has intimated that the said mobile was having some inherent problems in respect of its battery backup and overheating and not a single document has been filed to that respect. In this context, we have perused the job sheet dt.20.1.2018 wherein it has been mentioned that the set is overheating and battery back up empty. Hence it was the duty of the Service centre  of  the  OP  No..3 to rectify the defect free of charges and the defect arose during warranty period but the  Service  Centre  failed to do it  perfectly.. In our opinion, those defects are serious in nature and with those defects a set cannot be used. Further the  OP.  No.3  in their written version  is grumbling about expert opinion. In this context, it can be said that the Service Centre duly appointed by OP. No.3  Company is an expert centre in the field of mobile repairing and the said Service  Centre  has issued job sheet as narrated supra from which it was clearly ascertained that the handset of the complainant is suffering series of defects towards  battery,   for which it could not  be repaired for used.. In the above circumstances, it can be safely hold that the handset sold to the complainant is a defective one and the OP. No. 3 being the manufacturing company is to refund Rs. 9,999/- to the complainant towards cost of the handset. As the Service centre  has not done its duty prudently and could not rectified the  defects from the mobile set  permanently. Further   Service  centre  of the above  company  is not available at Rayagada District of  Odisha for  further  rectification of the defects.

 

Again the the  O.P. No.3 in their written version contended that no cause of  action has accrued within the territorial jurisdiction of  this Forum as  the answering O.Ps registered office is located at Gurgaon, Haryana. Further the O.Ps No.2 is located at Kolkata, and the O.P. No.3 is located  New Delhi. Hence the case is perse  not maintainable and liable to be dimissed on  this ground, yet  it can not over ride statutary  provision under section-3 of the C.P. Act.

It is well found by the Hon’ble High Court of Calcutta held and reported in AIR-1985 Calcutta-poge No. 74 in a suit.  A breach of contract suit can be entertained by the forum within whose jurisdiction price was payable. So the above  case can be filed on that place where the contract were made. Again Section- 11(2)© of the C.P.Act  specifies a complaint can  be instituted in a   District Consumer  Forum  with in the local limits of whose jurisdiction  the cause of action, wholly or in part arises. In the instant case the O.Ps  have  received the consideration from the complainant through internet banking from Rayagada(Odisha)  for supply of mobile set to the complainant. This is enough proof for the cause of action arises at Rayagada(Odisha) in part.

The  preliminary objection regarding the  maintainability  towards  territorial jurisdiction of the present case before this forum   made by  the O.P  No.3  in their written version    is hereby rejected  accordingly.

 

              It is a cardinal rule and upheld by the Hon’ble Supreme Court and the NCDRC in the catena of  judgemens that it is the manufacturer who is  liable for the manufacturing defects in a product and not the dealer/seller or retailer.  Hence, in the  present case in hand the O.P. No.3 (Manufacturer)  is liable to refund  the price of the above set. 

 

 

 

 

Perused the complaint petition and documents filed by the complainant and we accept the grievance of the complainant. The Complainant  argued that the O.Ps have sold a defective  mobile set  to the complainant and claimed that the O.Ps caused deficiency in service and deprived of the complainant of enjoyment of the mobile set  since the date of  its purchase  which caused mental agony and harassment to the complainant.

Now we have to see whether there was any negligence of the OPs  in providing  after sale service  to the complainant as alleged ?

 

We perused the documents filed by the complainant.  Since the mobile set found defective after its purchase    and   the complainant  informed the OPs regarding the defect but the  OPs  failed to remove  the defect . At this stage we hold that  if the mobile set  require  servicing since  the date of its purchase, then it can be presumed that it is defective one and if the defective mobile set  is sold to the complainant , the complainant is entitled to get refund of the price of the article or to replace a new  one or  remove the defects  and also the   complainant is entitled  and has a right to claim compensation and cost to meet his mental agony , financial loss.  In the instant case  as it is appears that the mobile 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 mobile set  with an expectation to have the effective benefit of use of the article. In this case, the complainant was deprived of getting beneficial use of the article and deprived of using the mobile set  for such  and the defecates were not removed by the O.Ps who  know the defects from time to time from the complainant.

 

On appreciation of the evidences adduce before it, the forum is inclined to allow the complaint against the O.Ps.

To meet the ends of justice the following order is passed.

                                                           

 

                                                                        O R D E R

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

            The O.P No.1(Manufacturer) is   directed to return back the defective product from the complainant  by paying the price of the  mobile set Moto E4 plus (fine gold, 32 GB) a sum of Rs. 9,999/-.  There is no  order as to cost and compensation.

            The O.P. No.2 &3 are directed to refer the matter to the  O.P. No.1 for early compliance.

            . 

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

Dictated and corrected by me.

            Pronounced in the open forum on         9 ^th.  day of   April, 2019.

 

MEMBER                                                MEMBER                                                                                            PRESIDENT