Orissa

Rayagada

CC/84/2017

Sri Nirakara Padhi - Complainant(s)

Versus

The Manager, Samsung India Electronic Ltd., - Opp.Party(s)

Self

09 May 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No. 84 / 2017.                                         Date.       9.    5    . 2018.

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                                      President

Sri GadadharaSahu,                                                          Member.

Smt.PadmalayaMishra,.                                                  Member

 

Sri Nirakara Padhi, S/O: Somanath Padhi,  Raniguda Farm, Po/ Dist: Rayagada, State:  Odisha.                                                                                                                                                                                                                                                                                                             …….Complainant

Vrs.

1. The Manager, Samsung India Electronics Pvt. Ltd., A-25, Ground Floor, Front Tower, Mohan co-oprative Industrial Estate, New Delhi- 110044.
2. The Manager, Samsung Service Centre, New Colony, Rayagada(Odisha).
3. The Manager, Bankeswari Maa Cell Point,  Near Old Gate, Station Road,  Rayagada (Odisha). 765  001.
4.  

For the Complainant:- Self.

For the O.P:- Sri K.C.Mohapatra and associates, Bhubaneswar.

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 mobile  price  a sum  of Rs. 2,000/- which was found  defective   during warranty period.

On being noticed the O.Ps  1 & 2 appeared through their learned counsel and filed written version refuting allegation made against them.  The O.Ps 1 & 2  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 & 2 . Hence the O.Ps 1 & 2   prays the forum to dismiss the case against  them  to meet the ends of justice.

On being noticed  the O.P  No.3   neither entering in to appear before the forum nor filed their  written version inspite of more than  05 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.P No.3.  Observing lapses of around 9 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  the  counsel for the complainant set the case  exparte against the O.P. No.3. The action of the O.P No.3  is against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.P. No.3  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.Ps 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  313  bearing IMEI No.358802/07/647102/5  and 358803/07/647102/3 from the O.P.  No.3  by paying a sum of Rs. 2,000/-  with Retail Invoice No. 93   dt. 07.08.2016 with  one year warranty( Copies of the invoice is in the file which is marked as Annexure-I). But unfortunately after  few months  of its purchase  the above  set found defective and not functioning  i.e. such as  soft ware problem, memory card slot is not working properly, automatically shut down on repeatedly talking and the battery is going  heat   along with other problems. The complainant complained to  the O.P No.2 (service centre)  for necessary repair. Even such service  the above defects were persisting in the said set. So the complainant  intimated the same to the O.P. No.2 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.

                The O.P. No.1 & 2   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.

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. 3   on payment of consideration  an amount of Rs. 2,000/- on Dt. 07.08.2016 (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. 01.3.2017  handed over the same to the O.P. No.3 (service centre) but till  date the  O.P. No.2 has not rectified the above set perfectly running conditon.  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.

The  O.P. 1 & 2  in their written version  para-12   has  mentioned citation 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 of warranty”. The O.P. No. 1 & 2  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.1  and to secure the unlawful gains from the O.Ps.

 The  O.P. 1 & 2  in their written version  para-13   has  mentioned  another citation  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”.

To counter the above  decision  the complainant argued  that there is a catena of  judgments   of   apex court  are there   that  in   every case  expert opinion is not mandatory.

                 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 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. 1   is directed to return back the defective product from the complainant  by paying the price of mobile price  a sum of Rs. 2,000/-. There is  no order as to cost and compensation.

                The O.P. No.2 & 3   is ordered 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.   Copies be served to the parties  free of cost.

Dictated and corrected by me.

                Pronounced in the open forum on        9th  .       day  of    May, 2018.

 

MEMBER                                               MEMBER                                                                                              PRESIDENT