Orissa

Rayagada

CC/41/2018

Sri Nitish Kumar Veagad - Complainant(s)

Versus

The Manager, Shree Mahadev mobile Associates - Opp.Party(s)

Self

03 Apr 2019

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

                                      PO/DIST; RAYAGADA,   STATE:  ODISHA ,Pin No. 765001

 

C.C. Case  No.      41          / 2018.                                Date.   3.      4. 2019

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                                      President

Sri Gadadhara  Sahu,                                                        Member.

Smt.Padmalaya  Mishra,.                                                Member

.

Sri Nitesh Kumar Veagad,  S/O: Late RamaniLalVegad, New colony,S.N.Gupta Street,   Po/Dist:Rayagada   (Odisha). 765 001,  Cell No.7008493842,9178172737.                                        …. Complainant.

Versus.

1.The Manager, Shree Mahadev Mobile Accessories,  Hotel ShivamSundaram Ground floor, Station road,  Rayagada, 765 001.

2. The Manager, M/S. Sony India Ltd.,  Head office at A-31, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi-110044.

                                                                                                            … Opposite parties.

Counsel for the parties:                                 

For the complainant: - Self.

For the O.Ps  :- Sri  A.K. Lenka and Sri S.K.Jena, Advocates.

 

                                                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 price of the Blue tooth call set  a sum of Rs.7,800/- towards found defective during warranty period     for which  the complainant  sought for redressal of the grievances raised by the complainant.

Back ground  facts in a nutshell  are that  the complainant had purchased  SONY SBH 80 (Black)   from the O.P. No.1 on Dt.28.09.2017  on  payment  of amount a sum of Rs.7,800/-. 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. Blue tooth call not connected inter alia the wire cutting in the blue tooth point/mike point. The complainant feel there is manufacturing defect in the set.   The complainant complained the matter to the  Service centre situated at  Vizag(Andhrapradesh) State.  Inspite of repeated  contact the service centre refused to rectify or replace the same.   Now the above set is unused.  But  no  action has been taken by the O.Ps till date. Hence this case. The complainant prays the forum direct the O.Ps   to  refund purchase price of the SONY SBH 80 (Black)   a  sum of Rs.7,800/- to the complainant  & such other  relief as the  forum deems fit and proper in the interest of justice.

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

We have heard the submissions made across by and on behalf of   both the parties by their respective  Learned  counsels, as also  perused the pleadings filed there on.

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 had  purchased  SONY SBH 80 (Black)   from the O.P. No.1 on Dt.28.09.2017   on payment of consideration   a sum   for Rs.7,800/- to the  O.P. No.1 (copies of the  Retail invoice No. 51  Dt.28.09.2017  is in the file which is marked as Annexure-I).

            The main grievance of the complainant  is that   the above set   found defective  within the warranty  period. Blue tooth call not connected inter alia the wire cutting in the blue tooth point/mike point. The complainant feel there is manufacturing defect in the set.   The complainant complained the matter to the  Service centre situated at  Vizag(Andhrapradesh) State.  Inspite of repeated  contact the service centre refused to rectify or replace the same.   Now the above set is unused. So the  complainant  had requested    the O.P. No.2   to replace or refund purchase  price of the above set but the O.P. No.2     turned deaf ear. Hence this C.C. 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 above set   and   to  remove   the defects  of   the above set  with fresh warrantee

The O.Ps   in their written version contended that  the complainant instead of approaching the authorised service centre has directly come up this   frivolous and concocted complaint. Further the complainant has failed to furnish  any evidence in connection with any communication with the O.P. Additionally, the complainant has  not provided   any evidence regarding manufacturing  defects in the product.  It is therefore clearly established that the complainant  has provided false information in the complaint  to mislead the forum and to unnecessarily harass the O.P  by filing  the false complaint.  

The O.Ps relied citations  it is held and reported  in CPJ 1997(2) page No. 81 in the case of  Punjab Tractors  Ltd. Vrs. Vir pratap  where in the Hon’ble National Commission  observed  “ The  complaints  of the complainant were duly and promptly attended by the O.P and no reliable   evidence was produced by the  complainant in support of his case that he suffered a loss  due to inconvenience caused to  him, the complainant in  that case is not entitled to any relief”.

            Again it is  held and reported  in   CPJ 1992 (1) page No. 97 in the case of  Sabeena Cycle Emporium Chennakhaada  Vrs. Thajes Ravi    M.R.Pancha Villa vedar Ezkhone P.O.   where in the Hon’ble  Kerala State  commission  observed “ Where the  complainant   alleges defects in the goods, the forum  is bound to determine this fact on the basis of clear evidence by way of expert opinion. The aforesaid proposition of law has been  reaffirmed by the  Hon’ble West Bengal  State Commission  in the case of  Keshab Ram Mahto Vrs.  Hero Honda Motors Ltd and Anr.  CPJ-  2003(2) page  No. 2441

It is admitted fact that the complainant has purchased the above  product namely SONY SBH 80 (Black ) from  the O.P. No. 1  after being allured by the advertisement  of Naaptol Shopping Festival. 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 theiradvertisement. 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 andagain regarding the defect but the Opposite Party 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 toreplace 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 electronic product which was purchased by the complainant had developed defects and the Opposite Party was unable to restore its normal functioning duringthe 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. 1986means any fault, imperfection or shortcoming in the quality, quantity, potency, purity orstandard 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  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.

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  by paying the price of the  SONY SBH 80 (Black) a sum of Rs.7,800/-.  Parties are left  to bear their own cost.

The   O.P. No.1 is directed to refer the matter  to the O.P. No.2 for early  compliance of the above order.

           

            The entire directions shall be carried out with in 45 days from the  date of receipt   of   this order.

            Dictated and  corrected by me.

            Pronounced in the open forum on     3^rd.              day of  April , 2019.

 

MEMBER                                                                              MEMBER                                                    PRESIDENT

 

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