Orissa

Rayagada

CC/128/2017

Sri Rama Kanta Panigrahi - Complainant(s)

Versus

The Manager, UMA Sankar Gifts - Opp.Party(s)

Self

28 Aug 2018

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No.        128        / 2017.                            Date.  28    . 8   . 2018.

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                   President

Sri Gadadhara Sahu,                                                    Member.

Smt.Padmalaya Mishra,.                                              Member

 

Sri Ramakanta Panigrahi,  At:Brundabati Nagar, Marathiguda Po: Gunupur,  Dist:Rayagada  (Odisha). Cell No.9437783306.             …. Complainant.

Versus.

1.The  Manager, Umasankar Electronics & Gifts, Main Road, Gunupur, Dist: Rayagada  (Odisha).

2.The Manager,  M/S. Samsung  India  Electronics Pvt. Ltd., having its Regd. Office at A-25, Ground floor, front tower, Mohan Co-operative Industrial  Estate, New Delhi- 110044                                        … Opposite parties.

 

Counsel for the parties:                                 

For the complainant: - Self.

For the  O.P.No.1:- Set exparte.

For the O.P No. 2  :- Sri  K .C. Mohapatra, Advocate, Bhubaneswar.

                                                          J u d g e m e n t.

          The  present disputes arises out of the complaint petition filed by the above named complainant alleging deficiency in service  against  afore mentioned O.Ps for non refund of  price  towards  Samsung  LED  set which was  not functioning within the warranty period. The brief facts of the case  has summarised here under.

          That  the complainant  had purchased  a Samsung 32” LED Model No. UA32FH4003RMx2, Sl. No. OA2F2NH634867 from the O.P. No.1 on Dt.28.10.2016  on  payment  of amount a sum of Rs.22,700/-. The O.Ps. have   sold  the  said set to the complainant providing  one year warranty period  vide Retail invoice No.91 Dt. 28.10.2016.The  above set   found defective  during the month  July, 2017 within the warranty  period. The complainant complained the matter to the  O.Ps from time to time, but  no  action has been taken by the O.Ps till date. Though he has given the service, but the same trouble continue.   Now the above set is unused. Hence this C.C. case.  Direct the O.Ps to  refund purchase price of the LED set a sum of Rs.22,700/- to the complainant. Hence this case. The complainant prays the forum direct the O.Ps to  refund purchase price of the LED set a sum of Rs.22,700/- to the complainant  & such other  relief as the  forum deems fit and proper in the interest of justice.

                On being noticed  the O.P No.1  neither entering in to appear before the forum nor filed their  written version inspite of more than  7 adjournments has been given  to them. Complainant consequently filed his memo and prayer to set exparte of the O.P No.1 .  Observing lapses of around 1 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.P No.1 . The action of the O.P  No. 1  is against the principles of  natural justice as envisaged  under section  13(2) (b)(ii) of the Act. Hence the O.P. No.1  was  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.

On being noticed  the learned counsel for the O.P No. 2   filed written version inter alia  challenged  the maintainability of the  petition before the forum. The averments made in the  petition are  all false, and O.P No. 2    deny   each and every allegation made in the petition. The O.P No. 2  taking one  & other grounds in the written version   sought to dismiss the complaint as it is not maintainable  under the C.P. Act, 1986.  The O.P. No. 2     prays the forum to dismiss the complaint petition  for the best interest of justice.

 

The O.P No.2  appeared and defend the case.  Heard arguments from the  learned counsel for  the  O.P No.2  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 Samsung 32” LED Model No. UA32FH4003RMx2, Sl. No. OA2F2NH634867 from the O.P. No.1 on Dt.28.10.2016  on  payment  of amount a sum of Rs.22,700/- (Copies of the  bill is in the file which is marked as Annexure-I). The O.Ps. have   sold  the  said set to the complainant providing  one year warranty period  vide Retail invoice No. 91 Dt. 28.10.2016.  The  above set   found defective  within the warranty  period. The complainant complained the matter to the  O.P from time to time. Inspite of repeated  attempt  by the O.Ps  service centre   for rectification  of the defects but the same trouble continued. Even such service the above problems persisting in the above set and being asked  O.Ps authorized person advised to move the matter to the company  for better service, but the manufacturing company had paid deaf ear to the genuine complaint.  Hence the above 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 .

Coming to the merits of the case the complainant had purchased the above set  from the O.P No. 1   on payment of consideration  an amount of Rs. 22,700/- on Dt. 28.10.2016 (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 handed over the same to the O.P. No.2’s (service centre) for repair.

The  O.P. No.  2   in their written version   contended that the complaint  is not maintainable since it is based upon false, frivolous and vexatious pleas. The complainant  has neither adduced any evidence nor submitted  any material particulars so as the above set of the  complainant has defect  regarding the manufacturing  defect of his set or deficiency in service and unfair trade practice committed by the parties.  Hence the complaint of the complainant liable to be dismissed.  

The  O.P. No.  2   in their written version para-8  contended that  in  the   present case the complainant has purchased the  alleged   Sumsung Led T.V. from the O.P. No.1  on Dt. 28.10.2016 with an warranty one  year from the date of purchase and after online request the Service  Engineer Sital Enterprises, immediately  installed the same in the house of the complainant. All of sudden on Dt. 21.7.2017 the Ist. Complaint  has made allegation through online vide job No. 4241319919 for defect  of his said alleged T.V. and the same day the Service Engineer of the  Samsung authorised service  centre, Rayagada immediately rushed to the house of the complainant and verified no defect in the LED  T.V and   observed   the T.V. was running fine without     any defect and detected a vertical  line present on the middle of the Panel of the T.V. due to the any misuse/mishandle.  Thereafter the Service Engineer  educated  the matter to the complainant immediately and also explained there was no    need  of the panel of the T.V. because the clarity and quality of the picture  performance was very good and after all if the complainant interested to replace the broken panel then the complainant  will bear the cost  of the new spare(panel) as because  the warranty  was void for said repair only due to physical damage. At that time the complainant  was agreed with the Service Engineer  and refused to replace the panel  on payment. Therefore the Service Engineer left the house of the complainant  and on the same day close the job latter. Again after  few days the  complainant  has made allegation on Dt. 9.8.2017 through  on line further vide job No. 4242690542 for his said alleged T.V.  Also on the same day  the Service  Engineer  of the authorised  Service  centre,Rayagada   immediately visited  the house of the complainant and verified the same problem as previously observed by him. Thereafter the complainant demanded to replace the panel  on free of cost in warranty but the Service Engineer flatly refused to swap the panel as it is out of policy and  it is  quite impossible for him. Then the  complainant  also threatened the  owner of the  Service centre, Rayagada on  the same day an demanded for replace  the penal on free of cost in warranty, for which the owner of the  service centre expressed his inability as he binding  with the  policy of company.  The complainant has suppressed all the real  facts and filed this complaint  with absolutely misconceived, wrong, unfounded, baseless, false, untenable, imaginary, vexatious and frivolous facts   not only to secure the illegal and unlawful gains from the O.Ps   but  also to  tarnish the reputation of O.P. No.2.  No way the present O.P. have knowledge regarding the defect of the alleged  set of the complainant  prior to filing  of this case before this forum, them how the O.Ps have  failed to repair  his T.V.?  Hence neither the answering O.P./ the Service centre, Rayagada has committed any deficiency in service nor any unfair trade practice. The complainant  has miserably failed to prove the same  against   these answering  O.Ps and also failed to provide  any evidence/document regarding the same. So all  these allegations are bald and vague. It is not possibly to believe  the facts of complaint on simple submission of the complainant. The complainant be put to strict proof of the averments made  by him. Hence the complainant is not entitled to get any relief claimed thereon.

Further the O.P. No. 2   cited citation  in their written version    in the case of Ravneet Singh Bagga Vrs. KLM Royal Dutch Airlines, 1999(3) CPJ- 28 (SC), it was  held that the burden of proving  the  deficiency in service  is upon the   person who alleges it.  In case of   bona  fide    disputes to willful fault,  imperfection, shortcoming or inadequacy in the quality,  nature or manner of performance in the service can be informed. If on facts it is  found that the person or authority rendering service had taken all  precautions and considered all relevant facts and circumstances in the  course of the transaction and that their  action or the final decision was  in good faith, it can not be said that there  had been any deficiency in service in the case in hand the complainant has failed to prove any  deficiency in service on the part of the O.Ps.

Again the O.P. No. 2   cited citation  in their written version    in the case of 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 to warranty”. The O.P. No. 2  vehemently contended that in this case there is no defect in the  above 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.

Further the O.P. No. 2   cited citation  in their written version    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”.

Again  the O.P. No. 2   cited citation  in their written version  in the case of Sandeep Bhalla Vrs.  Ashoka Electronics Pvt. Ltd.  IV(2011) CPJ 138(NC). The Ho’ble National Commission held that, if any product works smoothly 7-8 months  then it can not held to  be  defective. 

The Consumer Protection Act is a beneficial legislation enacted for the protection and preservation of the right of the consumers. Interpretation of the provisions of the said Act should therefore be made by keeping in mind the reliefs and remedies how far could be  made available to the consumers in the event of any unfair trade practice adopted by the trader or if thereby any deficiency in service by the service provider.  The object and purpose of the Consumer Protection Act is to provide speedy and inexpensive remedy to the consumers as an alternative to the remedy already available to them by way of institution of a suit in the appropriate Civil Court. If such be the purpose then how a consumer like the present  one  who residing  at  Rayagada  would have  speedy and inexpensive remedy against deficiency in service by  the opposite party  who resides at New Delhi.

It is the case of the complainant that  since the date  of purchase of above set   the   defects occurred  for which he could not run the above  set  and in spite of repeated requests  the O.Ps  remained silent and did not take any steps to remove the defects. After going through the version and documents filed by the opposite party, this forum also  believed the contention of the complainant  as because  the opposite party has strongly opposed regarding after sale service of the above set . It is contended by the opposite party that after delivery of the above set  they are not responsible for any damage, breakage or different qualities. But we totally denied their contentions and as per Sale of Goods Act, the seller  is bound to provide after sale service till the warranty is over and they cannot deny and think  that after sale of the product/goods their job is over. It is their sole responsibility to give after sale service as per the warranty/guarranty  and if there is any manufacturing defects they are bound to replace it or refund the purchase amount. In the instant case, the above set  supplied by the Opp.Party is a defective one and when defect occurred in the above set  the opposite party  did not attended  the complainant to remove the defects and remained silent and thought that as per their terms and conditions printed in the tax invoice  they are not liable for any defect or qualities of the product as they have made the law for their Company. It is very strange that how the opposite party Company can  thought  that a customer who has purchased a product  which is worth of Rs.22,700/- will bear the loss if the same will found defective if they will not provide any service, from which it is established that it is the attitude of the O.Ps to cheat after selling a defective product to the customer like complainant and tried to run away from their responsibilities. Hence, in view of the aforesaid facts and findings of the case, it is clear that  the opposite parties has supplied a defective  set  to the complainant  for which the complainant  sustained  financial loss and suffered mental agony .

Word ‘defect’ as defined under Section 2(1)(f) of the Consumer Protection Act 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.

As per our above 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”.   Since the date of purchase , the above set  found defective and  could run properly  for which complainant  requested the opposite party over telephone  but the  O.Ps have failed to  remove the defects, which amounts to deficiency in service on the part of the O.Ps. Therefore, the O.P  No.2  is  liable to refund the purchase price  of the above set to the complainant.

 

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  Samsung 32” LED  a sum of Rs.22,700/-.

 There is no order as to cost and compensation.

          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      28^th.     day of    August, 2018.

 

 

MEMBER                                                                                 MEMBER                                                 PRESIDENT