Orissa

Rayagada

CC/54/2017

Sri Sana Jagdish Kumar - Complainant(s)

Versus

The Manager M/s Retailer Service Pvt. - Opp.Party(s)

Self

27 Feb 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 54/ 2017.                                          Date.     23  .    3    . 2018.

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                                                   President

Sri GadadharaSahu,                                                                        Member.

Smt.PadmalayaMishra,.                                                                                Member

Sri Sana Jagadish Kumar, S/O: Sri Sana Someswar Rao, Vidya Nagar,   Po/ Dist:Rayagada, State:  Odisha.                                                                                           …….Complainant

Vrs.

1. The Manager, M/S. W.S. Retail service Pvt. Ltd., Kacherakanaahalli, Hoskote Taluk,  Bangalore- 560067.
2. The Manager,  Lenovo   India Pvt. Ltd., Ferns Icon, Level-2, Doddenakundi  Village, Marathahalli Outer Ring Road, K.R. Puram Habli, Bangalore, 560037, Karnataka(India)                                                                        .…..Opp.Parties

Counsel for the parties:                                 

For the complainant: - Self.

For the O.P  No.1:- Sri  Ramakant Jena  and associates.

For the O.P.No.2:- Sri Ram Prasad Patra, Advocate, Rayagada(Odisha).

                                            

.

JUDGMENT

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 the the sale price  of  a sum  Rs.15,500/- towards the defective  mobile set.

 

On being noticed the  O.P. No.2 appeared and filed written version  through their learned counsel  inter alia denying the petition allegations on all its material particulars. The O.Ps taking one and other 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.Ps. Hence the O.P No. 2    prays the forum to dismiss the case against  them  to meet the ends of justice.

On being noticed the O.P. No. 1 filed written version through their learned counsel and contended   that  the present complaint is not maintainable and liable to be dismissed against the O.P.No.1.  The O.P.No.1  is protected  by the provisions of Section-79 of the Information  Technology Act, 2000. The  O.P. No.1 neither offers  nor provides any assurance and/or offers  warranty   to the end    buyers  of the  product.   The  O.P. No.1 is neither  a  ‘trader’ nor a ‘service provider’ and there does not exists any privity of contract   between the complainant and  the O.P. No.1.  The O.P. No. 1  is only  limited  to providing on  line platform  to facilitate the whole transaction of sale and purchase of goods by the respective sellers and buyers on its  website. The O.P No.1  taking one and other 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 . The O.P. No.1 prayed to dismiss the complaint petition against   O.P. No.1 for the best  interest   of justice.

On being noticed the  O.P. No.2 appeared and filed written version  through their learned counsel  inter alia denying the petition allegations on all its material particulars. The O.Ps taking one and other 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.Ps. Hence the O.P No. 2    prays the forum to dismiss the case against  them  to meet the ends of justice.

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

The  parties advanced arguments vehemently opposed the complaint 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. Lenovo P1 a 42  from the O.P.  No.1  by paying a sum of Rs. 15,500/-  with Invoice No. blr wild 20160400227634   dt. 10.04.2016 with  one year warranty. But unfortunately after  4 months  of its purchase  the above  set found defective and not functioning  i.e. such as hanging, switching off automatically, switching on automatically, non working of  Camera along other problems. The complainant complained the O.Ps  for necessary repair 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.

.               It is submitted by the O.P No.1  in their written version  that  the mobile sold by the O.P  No.1 carries manufacturer’s warranty and as a  reseller involvement of O.P No.1  in the entire transaction is limited to selling the product and liability to provide after sale services do not lay upon the O.P No.1  as the O.P No.1  is neither the manufacturer of the product nor the authorized service center of the manufacturer who has the sole and prime responsibility to provide after sale services to the consumers  under warranty clause. The O.P No.1  is not the manufacturer of the product but only sells its online.  The product purchased by the complainant is manufactured by Lenovo India Pvt. Ltd and the product sold by the O.P No.1  carries warranty provided by the manufacturer against the manufacturing defects subject to the terms and conditions determined by the manufacturer only. The role of the O.P No. 1  is limited to selling the product of the manufacturer  to the complainant , since electronic devices come in a sealed box, the O.P No.1  have no control over the quality of the product nor is it possible to detect defects, if any. Thus the instant complaint is not maintainable against the O.P No.1   as it is neither a proper nor necessary party. The O.P  No.1 has no liability to replace or capability to repair the product manufactured by the manufacturer.  Even if the product is found to be defective  it can only be the liability of the manufacturer to replace or repair it and here in this case the complainant has  impleaded the manufacturer as opposite party  No. 2 in the complaint petition. The reliefs prayed for by the complainant  are wholly unreasonable and unsustainable in law and the O.P No.1  is  not liable to pay any compensation to the complainant and thus the complaint against the O.P No.1  is liable to be dismissed.

              In support of his case the O.P. No.1 citated  citations in their written version  as laid down by the Apex Court as well as NCDRC in the following cases.

1.Hindustan Motor Ltd. And another Vrs. N.  Sivakumar  2000 (10) SCC- 654.

2. Abhinandan Vrs. Ajit Kumar Verma & otrs. 2008 CPJ  1336 N.C.

3.Esspee Automotives Ltd. Vrs.  SPN  Singh  2015 (1) CPJ 192  N.C.

4. Cadbury India Ltd. Vrs. Kanteppa & Ors.  2016 (1) CPJ  436 N.C.

 

              It is a cardinal rule and upheld by the Hon’ble Supreme Court and the NCDRC in the aforesaid judgemens that it is the manufacturer who is  liable for the manufacturing defects in a product and not the dealer/seller or retailer.  Hence, this complaint is not maintainable against the O.P No.1 

 

             The O.P.  No.2 in their  written version  para No.3 contended that it is pertinent  to mention that the O.P No.2 aims at customer satisfaction as its utmost priority.  The  O.P. No.2 cited citation   in Ravneet Singh  Bagga Vrs. KLM  Royal Dutch  Airlines and Another, it was held “The burden  of proving the  deficiency  in service  is upon the person who alleges it”. Again the O.P. No2  contended that the complainant has failed to prove and place on record, any evidence in support of his allegation of deficiency in service.

 

 

To answer the above question the complainant submitted that after  4 months  of its purchase  the above  set found defective and not functioning  i.e. such as hanging, switching off automatically, switching on automatically, non working of  Camera along other problems.  The complainant further submitted that  the O.P. No.2  have not provided sufficient service centers in and around Rayagada and the nearest service centre would around 400 Kms  from Rayagada.

 

The O.P.No.2  in their written version  para No.6 clearly  mentioned that  the complainant  has failed to produce a copy of invoice supporting  his contention that he has purchased a mobile phone.  In  the absence of the invoice, it can not be confirmed that the complainant is the purchaser and owner of the mobile phone. To substantiate the above question the complainant filed copies of Retail invoice bill No. blr wild 20160400227634   dt. 10.04.2016 with  one year warranty ( copies of the same is in the file which is marked as Annexure-I).

 

The  O.P. No.2 in their written version in para-13  clearly mentioned that refund  shall be provided only if the product is neither repairable nor replaceable.

 

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.”

               

                 

Heard and 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.P No.1.

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

                                                                                O R D E R

                In  resultant the complaint petition  is allowed  against the O.P. No.2 on contest and  dismissed against the O.P. No.1  on contest.

                The O.P. No.2( Lenovo company)  is directed to return back the defective product from the complainant  by paying the price of the  mobile set Lenovo P1 a 42  a sum of Rs. 15,500/- interalia to pay Rs.1,000/- towards litigation expenses.

                . 

                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            23 ^th.   day of   March, 2018.

 

MEMBER                                                MEMBER                                                                                            PRESIDENT