Orissa

Debagarh

CC/7/2015

Padmalochan Sahu, aged about 57 yrs. S/o-Harihar Sahu - Complainant(s)

Versus

The Proprietor,Barai Electronics, - Opp.Party(s)

28 May 2016

ORDER

IN THE COURT OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, DEOGARH.

                                                     C.C.NO.07/2015

             Shri P. C. Mahapatra, Member and Smt. Jayanti Pradhan, Member.

 

Sri Podmalochan Sahu, aged about 57years,

S/O- Harihar Sahu, Deogarh Town,

At/Post/Dist-Deogarh.                                                              …. Complainant.

 

                        -Versus-

1. The Proprietor,

Barai Electronics,

Kargil Chowk, Deogarh,

 

2. Samsung India Electronic Pvt. Ltd.,

B-1, Sector-81, Phase-2, Noida,

Dist/- Goutam Budha, Uttarpradesh.                            …. Opp. Parties.

 

For the Complainant    :           Nemo.

For the OP1                 :           Pruthivi Raj Pattnaik, Advocate

 

 

DATE OF HEARING 24.05.2016, DATE OF ORDER; 28.05.2016

 

PRATAP CHANDRA MAHAPATRA, MEMBER - Complaint was filed, inter alia, alleging that the above named complainant, S/O – Harihar Sahu, a resident of Deogarh, PO.- Deogarh, PS – Deogarh in the district of Deogarh, has not been replaced with a new mobile handset against a mobile hand set purchased which went wrong within warranty period even after due repairing by Ops.

1. Succistinctly factual matrix of the case is as follows:

1. It has been contended by the complaint that, he purchased one Samsung mobile set Model-5282, Colour-Black, EMIE No.358304051981483 from the O.P.no.1 by paying a sum of Rs.5,000/- on dtd.8.4.2014 which carries  warranty  for a year assured by OP2.
2. The mobile got defect after a month’s use and the complainant reported it to O.P.No.1and produced the hand set for repair.
3. That the O.P1 retaining the set for a month handed over the set to the complainant testifying to be OK. But the Complainant again found the same problem after use of one day associated with the hand set. This he informed to OP1 and demanded a new handset against the defective handset as soon as possible. The OP1 received the defective handset and assured and advised the complainant to wait for at least 2(two) months in order to enable him to replace with a new handset. That, after completion of the stipulated period assured, the OP1 failed to supply a new hand set and it is so and so till today.

 

And hence the complaint. Also it has been contended by the complainant even after paying Rs.5,000/- (Rupees five thousand) for the mobile hand set he is not able to use it and so he is in mental agony and has sustained financial loss,

2. The answeringOP1 in his  Written Statement has contended as follows:

1. The complaint petition filed is false and frivolous since he is only the seller of the impugned mobile hand set and is not the Manufacturer. The complainant has indulged himself in levelling false allegations against him fully concocted. Act of the complainant is sheer reflection of misuse of the mobile hand set for irresponsible, careless and negligent handling of the mobile hand set the answering OP1 cannot be held responsible.
2. The answering OP1 does not provide or assure any warranty for 12 months from the date of purchase of the product and during this limited warranty period a customer can get the defective products or parts there of repaired/ replaced from Samsung or its Authorised service Network, without payment of any charges However, in certain abnormal condition as mentioned in clause 7 (a) of the limited warranty, no such benefits are available to the consumers. The limited warranty document is a part of the user manual and is inserted in every package of a cellular phone imported by OP2 and is caveat to the buyer , that clearly provides that in the event of any defect / problem in the handset of Samsung customer, the handset will be repaired by the  OP2  or its authorised service network, provided: Firstly , the handset is a genuine handset I,e, imported by Samsung India Private Ltd , Secondly ,it suffers from a defect or a problem during the limited warranty period and the said defect / problem is covered under the limited warranty offered by the OP2 i.e. defect in material and workmanship and thirdly, the consumer does not violate/breach any of the terms and conditions as stated in the limited warranty documents .
3. That, the allegations made in the complaint are baseless , frivolous, devoid of any merit or material basis and without any valid cause of action against the answering O.P and in favour of the complainant . The complainant has no right or locus stand to file the present complaint before the Hon’ble Forum as it is a sheer abuse of process of law and the allegations made in the complaint are misconceived and without any rational and based on unfounded facts and is nothing but mere conjecture and surmises.
4. That, the answering OP1 states that it has been alleged in the complaint that a defective / sub-standard mobile set was sold to the complainant and the same could not be repaired by the authorised service centre. It is further submitted that it became therefore necessary to sent the alleged defective handset for proper analysis/test to the appropriate lab to ascertain whether the mobile set in questions is defective or not . It is therefore fair and proper analysis and test as mandated under Section 13(1) (c) of the Consumer Protection Act.
5. That, the complaint is objection on the ground that the complainant has not approached this Hon’ble forum with the clean hands and has filed the complaint in an ambiguous manner to deceived and mislead this Hon’ble Forum. The complainant has not disclosed as to how the handset, if any. Because of the inherent ambiguity in the complaint it is not known as to how this Hon’ble Forum can arrive at any conclusion as to whether the defect in the handset was under warranty defect or due to improper use, whether there is an inherent defect or the handset has been tampered with and hence not compatible with the terns envisaged by warranty documents etc.
6. That, the liability of the answering O.P is importer of the hand set in any manner does not arise and no defect arose in the manufacture of the handset as the answering O.P takes all reasonable care in carrying out proper quality control and testing before delivery into. Market. Further, on examination report to establish that the defect was major defect is adduced by the complainant.
7. That, this Hon’ble forum has no jurisdiction to entertain the present case against the answering O.P as it does not fall within the jurisdiction of the Hon’ble Forum.
8. That, the contents from para no.1 to 3 of the complaint related to the transaction of purchase of the mobile set by the complainant from the O.P and are matters of record and hence need no reply from the answering O.P.
9. That, save and except the matters of record, rest of the contents of para no.4 to 8 of the complaint relate to O.P and are denied for want of knowledge. It is respectfully submitted that the O.P.2 products the mobile phone and issue / grant warranty period of 12 months from the date of purchase during which period k, Samsung or its authorised service network will repair or replace , at Samsung option , any defective product parts thereof with new or refurbished replacement items without payment of any charges . This limited warranty is not applicable where the product is subjected to abnormal use, misuse, abuse, accident, tempering, etc, as provided in Clause 7 (a) of the limited warranty.
10. That, the content of Para No.9 to 12 of the complaint is false, wrong, incorrect and hence denied. The allegation of defective goods supplied by the answering O.P is baseless, and vehemently denied. The answering O.P takes all reasonable care and carries out proper quality control and testing before delivery of its products into the market. Moreover, the O.P.2 provides a limited warranty of 12 months in respect of its products and during this period of limited warranty the O.P.2 undertakes to repair or replace any defective products of parts thereof with new or refurbished replacement item with payment of any charges. The defective product if any is replaced where the product is beyond repair or where there is a genuine problem of repeated repairs of the same problem. The complainant is not entitled to any compensation towards any loss allegedly caused to him due to alleged defects in the mobile handset. No evidence documentary or otherwise has been furnished in support of the allegation of loss caused to the complainant. That, last para is prayer clause and denied completely in the light of the above submission. The complainant is not entitled for replacement of alleged handset and or cost litigation in terms of the limited warranty.

Parties were served with notice U/S.14, while OP1 received notice and filed his written statement, OP2, though served notice through registered post bearing No.RO50734973IN and RO507337431IN on dtd.29.5.2015 and 3.11.2015neither S/R returned nor he filed any version. In order to not to defeat the principle and spirit of Consumer Protection Act, 1986 .O.P.No.2 declared exparte since in doing so none is prejudiced as OP2 being the manufacturer of the impigned mobile hand set, though may be a proper party at the highest but not a necessary party.   Ex-parte hearing was conducted on dtd.24.5.2016, where in complaint being present personally narrated content of his complaint and concluded his version.

            Before dealing open any further it is pertenent to consider whether the complaint is barred by jurisdiction. The OP1 namely Barai Electronics as evident from the Cash Memo issued at the time of sale of the mobile hand set has got its business show-room at Kargil Chowk, Deogarh and OP2 being Manufacturer of the product is doing its business at Deogarh by appointing its authorised Dealer. Hence hardly it can be concluded that the instant complaint is immune to jurisdiction at par with provisions of Section 11, which reads as under ;

Section 11. Jurisdiction of the District Forum. ( I) Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed 2 does not exceed rupees twenty lakhs.

(2) A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction,-

(a) the opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or

2[carries on business or has a branch office or] personally works for gain, or

(b) any of the opposite parties, where there are more than one, at the time of the

institution of the complaint, actually and voluntarily resides, or

2 carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or

2 carry on business or have a branch office, or personally work for gain, as the case may be, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.  But the products were sold by O.P.2.

            In the instant case privity of contract of sale of the mobile handset lies in between complainant and OP1 and seen the mobile sets has gone out of order within the warranty period and the defects is irreparable as per well settled of law in the case of electro Audio vision – Versus- M/S Diddan construction 2014 (1) C.L.T.428 (M.L) Hon’ble Meghalaya State consumer Redressal Commission have held as hereunder:

“6. It is well settled that a necessary party is that in whose absence the court cannot pass an effective decree. At the very highest the original manufacturer, may be a proper party in this case. Merely because the manufacturer may be an possibleparty is no ground for holding in the reverse that he is a necessary party whose non-joinder would be fatal to the whole proceedings. Apart from the above, the Consumer Protection Act, 1986, is a beneficial statute enacted for the better protection of the interests of consumers, it is not to be shackled with intricacies and niceties and technicalities of the Civil Procedure. The proceedings under the CP Act are primarily simple and summary in nature.”

“8. If the Appellant/Opposite party dealer has any claim against the manufacturer, he is left with liberty to pursue the same in separate proceedings before appropriate forum in accordance with law. Xxxxxx”

“9. It may be further added here that the Appellant is an independent dealer and not an agent of the manufacture of the mobile phone in question. Had he been an agent, the matter would have been otherwise. Hence he cannot wash off his hands after making a sale and shift his burden to the manufacture nor can he insist that the manufacturer be added as a party to the proceedings. A consumer is primarily connected with the person from whom he buys the goods, as privity of contract is between them and not with the manufacturer. Ordinarily, it is for the Appellant dealer to take care of the complainant’s concerns, whereafter he can take up the matter with the manufacturer for securing his own interests. Otherwise, the Consumer Protection Act, 1986 would become totally unworkable and for very small complaint a consumer would have to invove the manufacturer, who, although no doubt is a proper party, is not a necessary party.”

In this view of the matter, the liability of the Appellant dealer for sale of defective goods to the consumer is beyond question. In applying the ratio of the aforesaid case, we are of the opinion that in the instant case OP1 and OP2 are deficient of providing service.

Heard both OP1 and the Complainant and on perusal of documents filed in the records we taking recourse in applying the ratio of the aforesaid case, we are of the opinion that in the instant case OP1 and OP2 are deficient of providing service. Therefore I order as under:

 

                                                            ORDER

The complaint is allowed.O.P.1 is directed to supply a new handset of the same make and model and if the same make and model handset is not available now in the market, to refund Rs.5000/- only to the complainant within 45 days from the receipt of this order. Also O.P.1 is directed to pay the complainant amount of Rs.3000/- towards compensation of mental agony and pain sustained and Rs.2000/- only towards cost of litigation within the aforestipulated period i.e. 45 days, failing to comply this order within the time frame, in addition to afore sated amounts he will have to pay an additional amount @12% as interest per annum till the date actually the amount is paid or in course of law.

Office is directed to supply the first copies of the order to the parties free of costs receiving acknowledgement of the receipt thereof.

Order pronounced in the open court today i.e. on 28^TH. Day of May, 2016 under my hand and seal of this forum.

 

                                                I agree,

 

                                          (Jayanti Pradhan)                                        (P.C. Mahapatra)

                                              MEMBER (w)                                              MEMBER

 

Dictated and Corrected by me.

 

 

 

MEMBER