SRI JIBAN KRUSHNA BEHERA, MEMBER (I/C)
The Complainant has filed this complaint petition, U/s-35 of C.P.A.-2019, (here-in- after called as the “Act”) against the Ops alleging deficiency-in-service with a prayer for compensation of Rs.30,920/- from the Ops.
2. The case of the complainant, in a nut-shell, is that on 17.8.2021, he purchased one Nokia Mobile 5.4, 6/64 bearing its HSN/SAC Code No.851171211 from OP No.1 on payment of Rs.13,920/-. Soon after its delivery, the mobile in question was found defective like non-functioning of touch screen, hang of mobile. At that time, the complainant complained before the OP No.1 and the OP No.1 repaired the same in the month of December, 2021. Fifteen days thereafter, said mobile was also found defective and the complainant lodged complaint before the OP No.1, but the OP No.1 did not pay any heed, rather, he had played a hide and sick game. Finding no other alternative, the complainant served legal notice to the Ops which was properly received by the Ops, but remained silent. It is stated that the mobile was covering the warranty period at the time of its defect. The complainant is a practicing lawyer and without mobile phone he has suffered a lot.
The cause of action arose for filing of this case on 17.8.2021, when the complainant purchased the mobile in question and on 4.5.2022., when the complainant served legal notice. When the Ops did not pay any heed to the legal notice, the complainant was constrained to file the case. Hence, this case.
To substantiate the complaint, the complainant relied upon the following documents, which are placed in the record, as mentioned hereunder:-
- Photocopy of Tax invoice dated 17.8.2021.
- Photocopy of Warranty information.
- Photocopy of Legal notice.
- Photocopy of Registration receipts.
3. In the present case, in spite of receipt of notice, the OP No.1 neither appeared nor filed his written version for which he was set ex parte. Although OP No.2 appeared in this case and filed his written version, but the written version has not been accepted as the same was not filed within the statutory period.
4. The points for determination in this case are as follows:-
(i) Whether the complainant is a consumer or not?
(ii) Whether the complainant has any cause of action to file this case?
(iii) Whether the case is maintainable?
(iv) Whether there is any deficiency of service on the part of the Ops?
(v) Whether the complainant is entitled to get the relief, as sought for?
(vi) To what other relief(s), the complainant is entitled to?
F I N D I N G S
5. First of all, it is to be threshed out as to whether the complainant is a consumer or not, whether the complainant has cause of action to file the case and whether the case is maintainable or not. On a meticulous examination of the complaint petition as well as the documents produced by the complainant, it is found that the complainant had purchased one Nokia handset of 5.4, 6/64 on 17.8.2021 from the OP No.1 paying Rs.13,920/- and obtained tax invoice vide Annexure-1. Annexure-2 shows that the above purchased mobile carried warranty of one year from the date of purchase. In the present case, OP No.1 is the retailer who sold the mobile handset to the complainant and OP No.2 is the manufacturer of the Nokia Mobile. The purchased handset in question of the complainant was found manufacturing defect from the very beginning for which he lodged complainant before the Ops for its repair. But, as it reveals from the case record, the Ops have not taken any coercive measures for removal of the defect, as narrated by the complainant, rather, they turned a deaf ear to the requests so also the legal notice sent by him till today, for which the complainant was constrained to file the case. From the above, it is clearly made out that the complainant is a consumer as required U/s 2(7) of the Act. Consequently, the complainant has cause of action to tile the case and the case is maintainable.
6. In order to substantiate his case with regard to deficiency in service, learned counsel for the complainant submitted that on 17.8.2021, the complainant purchased one Nokia handset from OP No.1 for Rs.13,920/- with a warranty for one year. As the mobile of the complainant was found defective like non-functioning of touch screen, hand of mobile, he complained before the OP No.1, who in turn repaired the same in the month of December, 2021. Again, after fifteen days thereafter, the alleged handset was found defective which fact is also intimated to OP No.1 by the complainant, but the OP No.1 played a hide and sick game with him. Thus, the complainant was constrained to serve legal notice on the Ops on 4.5.2022. So, considering the date of purchase i.e. 17.8.2021 till the date of sending of legal notice dated 4.5.2022, it can safely be presumed that the alleged handset of the complainant was under the coverage of warranty period. It is further emphatically submitted that the complainant is a practicing lawyer and has reputation in the locality. For the above reason, he could not keep contact with his clients for day to day business in the Court affairs nor could he attend the Courts in time at the time of need. Such type of illegal acts, unfair trade practice and deficiency in service as committed by the Ops not only put the complainant into harassment, mental agony but also violated the principle of natural justice.
7. On the other hand, learned counsel for OP No.2 submitted that the averments made in the complaint petition of the complainant is not supported with any material documents to prove deficiency in service on the part of these Ops. The present OP No.2 is engaged in the business of manufacturing high quality Nokia handset. The complainant has intentionally suppressed the material facts before this Commission which are required for adjudication of the case. Further, the complainant has not approached the authorized service centre of this OP for rectification of the defect if the complainant felt that his handset was defect and the OP No.1 is not the authorized service centre of this OP. Therefore, this OP No.2 is not liable for deficiency in service.
8. From the above submissions and on perusal of the documents, it is found that undisputedly the complainant had purchased one Nokia handset from the business counter of the OP No.1 vide Annexure-1 and the OP No.2 is the manufacturer in respect of the handset in question, as admitted by them. The defects as pointed out in the alleged handset by both the parties are found during the coverage of warranty period. According to the complainant, once the OP No.1 had repaired the alleged handset of the complainant in the month of December, 2021 and just after fifteen days when again the handset of the complainant became defective, he approached the OP No.1 for its repair, at that time, OP No.1 should have suggested the complainant for taking the defective handset to its authorized service centre, but as it is seen OP No.1 did not pay any heed. The facts and circumstances described above leads this Commission to arrive at unanimous conclusion that there is gross deficiency in service on the part of the OP No.1. Further, the OP No.1, who deals with the products of Nokia handset and sold the Nokia handset to the complainant, has not at all took any endeavour nor showed any obligation either to make the handset of the complainant functional or take any initiative with the OP No.2 with regard to the problems of the complainant. From the above, it is held that the mobile handset in question was found defective either manufacturing or other from the date of purchase.
9. Learned counsel for the OP No.2 submitted that the complainant has not visited their authorized service centre in case of any defect occurred in his handset. Therefore, it can safely be said that the handset of the complainant was not at all defective. In case of any defect in the handset, that was occurred due to mishandling by the complainant. Further, it is submitted that OP No.2 cannot be liable for any defect in the handset where the handset is repaired by any third party. In this connection, first of all it is seen that the complainant had been to the OP No.1 in the month of December, 2021 for repair of his handset as the touch screen of the handset was not functioning and became hang and also got it repaired by OP No.1. OP No.2 has admitted that OP No.1 is not their authorized care centre. So, a question crepts in the mind that how OP No.1 has repaired the handset of the complainant when he was not an authorized service centre, as per OP No.2. From the above, it can safely be held that OP No.1 might have repaired the handset of the complainant through their authorized service centre. Thus, it cannot be held that the handset of the complainant was not defective. Secondly, in the present case, both the Ops were silent on receipt of the legal notice sent by the complainant and no immediate action has been taken on their behalf in making the handset of the complainant in good condition. They have intentionally ignored the legal notice. It was their first and foremost responsibility to attend the legal notice at least to suggest the complainant, who is a consumer, to make a visit to their authorized service centre to ascertain the actual problem in the handset and now, in the present case and at the time of hearing, stated that the handset was mishandled by the complainant for which defect, as alleged, has been occurred, has got no meaning at all. When the Ops have not attended the problems in the handset of the complainant and slept over the matter, at present how can they confirmed that the complainant is solely responsible for the defect in the handset by mishandling it. Thus, the submissions, as agitated by the learned counsel for OP No.2 leaves no room to be believed.
10. Apart from it, in the Warranty under Clause-2 (ii), it has been warranted by the OP No.2 that – “during the warranty period, manufacturer or its authorized service centre will, in a reasonable time, remedy the Defect free of charge by either repairing or replacing the defective product or accessory or the defective part of it at its option, provided that you have returned the defective product or accessory to the Manufacturer or its authorized service centre before the Warranty period expired”. In the above facts and circumstances, when it is held that the handset of the complainant was a manufacturing defect, it is obliged on the part of the OP No.2 to replace it in place of a new one.
11. Besides the above, learned counsel for the OP No.2, during course of hearing, has submitted that this OP has no knowledge regarding any defect occurred in respect of the Nokia handset of the complainant. In this context, learned counsel for the OP No.2 has not whispered a single word that this OP has not received the legal notice sent by the complainant. A legal notice for deficiency in service can be sent by a consumer to the service provider or Company who has provided poor quality of service and sending deficiency in service legal notice is the most primary step where the service provider gets an opportunity to compensate the consumer. The very fact in the present case is that the Ops remained silent to the legal notice of the complainant which itself indicates that the Ops are guilty of selling a defective handset and consequent deficiency in service by their negligent attitude in attending to the complainant on the handset which is brought to its notice. That apart, on receipt of legal notice sent by the complainant, OP No.2 remained silent and not showed any obligation at least to reply the legal notice suggesting the complainant to attend the nearby service centre. Apart from this, in spite of due service of notice issued by this Commission, the OP No.1 has neither appeared before this Commission nor filed his version in its defence on the allegation of the complainant, which also otherwise attributes a deficiency in service towards the complainant.
12. Now a days, mobile handset is an essential product and without mobile one cannot adjust his normal life in the home as well as normal work in the offices or in day to day business. Thus, suffering from mental agony by the complainant, who is a practicing lawyer, cannot be ruled out. On the other hand, the Ops could not have shown their obligations towards the complainant for making his handset in good condition or to have suggested for its replacement or to return the product to the place of its purchase or to them. On the other hand, as stated by the complainant, OP No.1 played a hide and sick game with him. Is this a nature and character of the dealer towards a customer? Further, it is seen that OP No.1, who has sold the handset in question to the complainant and once repaired the same on the complaint of the complainant did not contest the case, still then it cannot be said that he is liable for the compensation. But in the present case, the OP No.2 found to have not performed its services towards a consumer like complainant. From the above, it is clearly made out that the OP No.2 has not extended proper and sufficient services towards the complainant to make his handset in question repaired or refund and thereby deficiency in service on his part is clearly attributed. Hence, the OP No.2 is liable for the claim of the complainant.
Hence, it is ordered -
O R D E R
The case of the complainant be and the same is allowed on contest against OP No.2 and dismissed on ex parte against OP No.1. The OP No.2 is directed to supply a new Nokia mobile of same brand and capacity or the next higher version (if the sold version is not available) on replacement of the defective one or to pay a sum of Rs.13,920/- with interest @ 9% p.a. from 17.8.2021. Further, the OP No.2 is directed to pay compensation of Rs.10,000/- for mental agony and Rs.2,000/- for litigation cost, to the complainant. The OP No.2 is directed to carry out the above said order within 45 days from the date of receipt of this order, failing which the complainant is at liberty to realize the same as per the prevailing law.
Pronounced in the open court of this Commission, this the 23rd day of July, 2024 under my signature & seal of the Commission.
