Orissa

Rayagada

CC/115/2018

Sudeepto Mohapatra - Complainant(s)

Versus

The Manager OPPO Mobile India Pvt. LTD., - Opp.Party(s)

Self

15 Nov 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

POST  /  DIST: Rayagada,  STATE:  ODISHA,  Pin No. 765001.

                                                      ******************

C.C.case  No.       115         / 2018.                     Date.  15     .11. 2019

P R E S E N T .

Dr. Aswini  Kumar  Mohapatra,                                     President

Sri  Gadadhara  Sahu,                                                       Member.

Smt.Padmalaya  Mishra,.                                                Member

 

Sri Sudeepto Mohapatra, S/O: Santosh Kumar Mohapatra,Collectorate Road, Near Jagannath complex,  Po/ Dist:Rayagada(Odisha).                                                                                                    …..Complainant.

Versus.

1.The  Manager, Oppo Mobiles India Pvt. Ltd., A15Y- B, Sector-63,Phase-III,Noida, Uttarpradesh (India).

2.The Manager, One plus exclusive service centre,Hira Building, 213, Brigade Road,Bangalore, Karnataka- 560001.

3.The Manager, Oppo Mobile India Ltd., Sochana Gurgaon Road, Sector-49, Gurgaon, Haryana-122001.                                                           …Opposite parties.           

Counsel for the parties:                                 

For the complainant: - Self..

.For the O.Ps1 & 3:-  Sri R.K.Senapati, Advocate,Rayagada.

For the O.P. No.2:- Set Exparte.

 

                                                JUDGEMENT.

1.  The  crux of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for  non refund of mobile phone price a sum of Rs.32,990/- which was found defective during warranty period   for which  the complainant  sought for redressal of the grievances raised by the complainant.

2.  Upon  Notice, the O.Ps  1 & 3   put in their appearance and filed  written version through their learned counsel in which  they refuting allegation made against them.  The O.Ps 1 & 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.Ps 1& 3.   Hence the O.Ps  1 & 3 prays the forum to dismiss the case against  them  to meet the ends of justice.

3.  Upon  Notice, the  O.P. No. 2 neither entering in to appear before the forum nor filed their  written version inspite of more than  12 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.Ps No.2.  Observing lapses of around 1 1/2 Years   for which the objectives  of the legislature of the C.P. Act, 1986 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.Ps No.2. The action of the O.Ps No.2   is against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.P. No. 2   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,1986.

4.  Heard arguments from the learned counsel for the    O.P 1 & 3    and from the complainant.    Perused the record, documents, written version  filed by the parties. 

5.  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.

6.   Undisputedly  the complainant  had purchased one mobile handset bearing  model No. One Plus-5 (Slate Gray) 6 GB RAM  + 64 GB)  on Dt. 7.10.2017 from the O.P. No.1 (Dealer) who was marketed the above product   on payment of consideration a sum of Rs.32,990/-  which was ordered by the complainant on Dt.27.9.2017 bearing   order No.406-4234880-6327538 (copies of the   bill is in the file which is marked as Annexure-I). 

7.  The  main grievance of the complainant  was that after using some days the sound system of the  said set was  not functioning and now the said set was not used by the complainant .  The complainant  had approached the  O.Ps from time to time but all his approaches was in vein.  Hence this C.C. case.

8.   The  O.Ps 1 & 3  in their written version contended that  no material evidence has been placed on record by  the complainant  which says that the said mobile handset was having some inherent defect. The complainant has also not furnished any document  which establishes  the fact that the complainant has made no. of attempts to rectify the above set in question  was having some defect. In the absence of any strong proof, the present complaint is liable to be dismissed. Further the O.Ps have contended that had there been any inherent defect  the complainant  would have  surely  contacted  O.P’s right in the beginning. But  herein  the  present  case  the complainant  raised issue after  satisfactorily using the mobile  hand set for 11 months and thereafter, lodged the complaint  and wrongly alleged that the mobile set has problems and other defects.

9.  The O.P 1 & 3 in their written version further contended  that The order for the  product  was placed on 27.9.2017and the complainant received the  product on Dt. 07.10.2017.  It is  well  settled fact  that  after  sales service  during the  tenure of the warranty  period are provided by the manufacturer of the  product in question.  The present  complaint    is not maintainable against the O.P. No.1 & 3  as a vendor/seller. The   O.P.No.1 & 3 was required   to timely  deliver  the original  product for which  the order was placed, which is admittedly performed  by the O.P.No.1 & 3.  The  warranty  card can  be availed by  the  complainant  in case of non working and any defect in the product  during  the warranty period from the  O.P.No.2(Manufacturer). The O.P.No.1 & 3’s  role are only to book the order and to timely  deliver the product in question. At  the time of purchase  order it was clear to the complainant  that for any after sale defects  the manufacturer only is liable to rectify the same through its authorized service centre. The O.P.No.1 & 3 prays the   forum  the present complaint is liable to be dismissed against the O.P. No.1 & 3 .

For  better appreciation this forum relied citations which are placed  here under

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 not done.

Further it is held and  reported in  Consumer Law today 2014(1) page No. 153 where in the  Hon’ble  Goa State Commission observed “The tax invoice duly   signed by dealer can be considered to be an agreement between the parties subject to which the   sale was   made to the  consumer – liability for defect in article sold both the dealer and manufacturer  are jointly and severally.  Though you have not mentioned any where the manufacturer address  so you are liable to  refund the  price of the above product.

It is admitted fact that the complainant has purchased the above  product namely One Plus-5  from the O.P. No.1 & 3 (dealer) after being allured by the advertisement of Amazon Shopping in  television. But no doubt it is a unfair trade practice on the part of the Opposite party because the Opposite Party has not acted as per their advertisement. It is the case of the complainant that with in  warranty period , the product was found defective and after complaint the Opposite Party failed to rectify the same. It is not denied by the opposite parties that the defect in the product is not within the warranty period and when the defect is found within the warranty period the opposite party is to give service or replace the same which they assured to the customer. Since the product found defective after its purchase and the complainant informed the Opposite Party again and again regarding the defect but the Opposite Parties  failed to rectify or replace the defect . At  this stage we hold that if the product in question found defective with in warranty period, then it can be presumed that it is defective one and if a defective product 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  under section-14 of the C.P. Act. In the instant case as  it is appears that the electronic product which was purchased by the complainant had developed defects and the Opposite Party was unable to restore its normal functioning during the warranty period. It appears that the complainant invested a substantial amount and purchased the electronic product 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 same and the defects were not removed by the Opposite Party who knew the defects from time to time from the complainant.

Word ‘defect’ as defined under Section 2(1)(f) of the Consumer Protection Act. 1986 means any fault, imperfection or shortcoming in the quality, quantity, potency, purity or  standard which is required to be maintained by or under any law for the time being in force or under any contract, express or implied or as is claimed by the trader in any manner whatsoever in relation to any goods.

In view of the aforesaid discussion, it is concluded that the opposite parties are deficient in their service .Sec.2(1)(g) ‘ Deficiency in Service means “ any fault, imperfection, shortcoming or inadequacy in the quality , nature and manner of performance which is  required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service”. With in warranty period, the electronic product given problem for which complainant made complaint to the OP but  subsequently the OP failed to replace the same ,which amount to deficiency in service on the part of the OP. That it is also a fact that the OP giving alluring and misleading advertisement like giving lottery benefit is drawing customer which  tends to unfair trade practice. Therefore, the O.P  No.2 (One plus Manufacturer)   is liable to refund the amount of the product  and also liable to pay compensation for mental agony along with cost of litigation for filing this dispute.. Hence, we allowed the complaint partly and dispose of the matter with the following directions.

At  this stage this forum observed   the interest of justice  would met if  the  O.P. No.1 & 3 (dealer)  intimate the same to the O.P. No.2 One plus (Manufacturer) for early  compliance  of the above order as the O.P. No.2 One plus (Manufacturer)  has   not attended before this forum  in spite of receipt of notice  who was  sex  expartee  by this forum. 

 

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 One plus  (Manufacturer)  is  directed to return back the defective product from the complainant  by paying the price of the One Plus-5 (Slate Gray) 6 GB RAM  + 64 GB)   a sum of Rs.32,990/- besides to pay Rs.5,000/- towards compensation for mental agony and litigation expenses.

The O.P  No. 1 & 3   are  ordered   to  refer the matter to the O.P. No.2 One plus  Manufacturer for  early compliance of the above order  and co-operate the complainant for better co-ordination with the O.P.  No. 2 One plus  (Manufacturer) to provide satisfying service  for which he is entitled.

The entire directions shall be carried out with in 60 days from the  date of receipt   of   this order.

                Dictated and  corrected  by me.

                Pronounced in the open forum on             15^th.       day    of  November , 2019.

 

MEMBER                                                                                 MEMBER                                                 PRESIDENT