Orissa

Rayagada

CC/128/2019

Amulya Ratna Sahu - Complainant(s)

Versus

The Sevex Technologids Pvt. Lt.d, - Opp.Party(s)

Self

19 Mar 2020

ORDER

DISTRICT   CONSUMER  DISPUTES REDRESSAL    FORUM, RAYAGADA,

STATE:  ODISHA.

C.C. Case  No.  128/ 2019.                                           Date.     19  . 3  . 2020

P R E S E N T .

Dr. Aswini  Kumar Mohapatra,                       President.

Sri   Gadadhara   Sahu,                                         Member.

Smt. Padmalaya  Mishra,                                     Member.

 

Sri Amulya  Ratna  Sahu,  Kalinga  T.V., Co-operative  Colony,  3^rd. lane, Near Fire Station,  Po/ Dist:Rayagada   (Odisha). 765 001,  Cell No.94375-75900.                                                                                                                                                                      …. Complainant.

Versus.

1.TheManager,Savex Technologies Pvt. Ltd., A-94, Sector -5, Noida, 201301, State: Utter Pradesh.

2.The Samsung  Service Centre, Srikrishna Mobiles, New Colony, Rayagada.

3. The  Manager, Samsung  India Electronics Pvt. Ltd., Regd. Office, A-25, Ground Floor, New Delhi- 110044.                                    .…..Opp.Parties

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Counsel for the parties:                         

For the complainant: - Self.

For the O.Ps :- Sri  K..Ch.Mohapatra, Advocate, Bhubaneswar.

 

JUDGEMENT

The  crux of the case is that  the above named complainant alleging deficiency in service  against  afore mentioned O.Ps    for  non rectification of Samsung mobile   which was found defective within warranty period and not removed the defects by the O.Ps service centre for which  the complainant  sought for redressal of the grievances raised by the complainant. 

 

Upon  Notice, the O.Ps  put in their appearance and filed written version 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.

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.

There  is no dispute that   the  complainant has purchased  Mobile phone Galaxy A705GZA70 Blue- Samsung   bearing IMEI  No. 355922100749734    from the O.P. No.1 through on line purchase  bearing  tax  invoice P.O. reference No.11057715117 on Dt.2.05.2019  on  payment  of  consideration  a sum of Rs.28,990/-. The O.Ps. have   sold  the  said set to the complainant providing  one year warranty period. (copies  of the  Tax invoice No. P.O. reference No.11057715117 on Dt.2.05.2019      inter  alia   one year warranty  card  is in the file which is marked as Annexure-I ).

After  using 5(five) months the complainant  has  shown  defective in the above set. Hence  on Dt. 29.10.2019  the complainant  approached the  service centre  i.e. O.P.No.2  for its rectification(copies of the   service centre report is in the file which is marked as Annexure-2). The  O.P. No.2 Service center has not rectified the  same within the warranty period.

            The main grievances of the complainant is that due to non  rectification of the  above  set perfectly  within warranty period  he wants  refund  of purchase  price of the above set. Hence this C.C. case.

The O.Ps in their written version  contended that  the white traces on Mother Board causes due to liquid  damage, which  completely  violated  warranty  condition   i.e. found to be damaged due to external cause of liquid ingression and needs to be replaced to service of the product. We found definite  liquid entry.  Even if a  product   remains   under  warranty, as we mentioned in our warranty terms and conditions,   this service is not covered under warranty.    Due to the Liquid damage condition of the said  set the service centre  shared an estimated cost a sum of Rs.14,000/- for replace of parts  and to repair of the above set.   The complainant  instead of approving  the said  estimated cost   started   raising   unreasonable demands and later claim for repair or replace the product  being  frustrated with out any cause of action   preferred  to file the  present complaint.

The O.Ps in their written version relied  citations which are mentioned  here:-

It is held  and reported in  CPJ – 1997(2) page  No. 81 in the case of Punjab Tractors Ltd.  Vrs.  VirPratap  where in the   Hon’ble  National Commission observed  “Where 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 this case is not entitled to any  relief. In the present case the OPs have duly attended the complaints of the complainant and have therefore never been deficient in providing the services  to the complainant.”

Further 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 VedarEzkhone P.O.  where in the  Hon’ble State CDR Commision, Kerala  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 also been reaffirmed by the  Hon’ble State Commission,West Bengal  in the case of  Sri Keshab Ram MahtoVrs. Hero Honda Motors Ltd and Anrs.  2003(2) page No. 244. 

Again  it is held and reported  in AIR-2006 S.C 1586   in the case of  i.e. Maruti Udyog Ltd. Vrs. Susheel  Kumar Gabgotra and others 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.Ps 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.Ps  and to secure the unlawful gains from the O.Ps.

 Further is it held and reported  2014(3) CPR- 724   in the case of Bajaj Tempo Ltd Vrs. Shri  Ajwant Singh & Another where in   the  Hon’ble National Commission opined that “Manufacturing defect must be proved by expert opinion”.

Again it is held and reported in CPJ 1999(3) page No.28(Supreme Court), SLT 1999(IX) page No.311(Supreme Court), CLT 2000(1) page No.33(SC) in the case of Ravneet Singh Bagga Vrs. M/S. KLM Royal Dutch Airlines  where in the Hon’ble Supreme Court observed “Burden of proving the deficiency in service is upon the  person who alleges it”.

Further It is held and reported  in CPC 2006(2) page No. 115  in the case of Sahib Singh Vrs. Sonu where in the  Hon’ble  Commission  observed  “The claim of the complainant based only on averments made in complaint without any corroborative evidence can not be allowed”.

Again it is held  in F.A. No.523 of 2017 on DT.16..11.2017  in the case of G.M.Gupta Vrs. Colston Bath and SPA Pvt. Ltd.  Hon;ble  SCDRC, New Delhi where in observed   “Consumer Court is not meant to enriching the consumer, claim for  compensation without support  of materials on record  establishing how he suffered mental agony, financial loss and harassment is  not maintainable.”

Further it is held and reported in  NCJ page No. 59  2000(1) in the case of  Sterocraft Vr. Monotype India  Ltd.   where in  Hon’ble  State CDR Commission, New Delhi  observed “ When terms of warranty does not cover refund  or replacement then consumer can not claim either replacement or refund during or after the lapse of warranty period.  The consumer can only claim repairing  of the product, if permissible  under the terms of service contract or warranty”.

Again  it is held and reported  in CPR- 1999(1) page No. 20  in the case of M/S. Videocon International  Ltd. Vrs. K.Vivjayan & others  where in the Hon’ble National Commission observed “For replacement  of product the defect must be manufacturing and for proving manufacturing defects, Export report is essential”.

Further   it is held and reported in CPR 2002(3) page No.92  where in the Hon’ble National Commission observed “ Necessity of expert evidence to prove the submission of manufacturing defects in the mobile phone made by the complainant”.

Again it is held and reported in  NCJ 2003 page No. 473  the Hon’ble National Commission where in observed  “Section 2(1) (f) –defect: No evidence of defect in computer- held defect not proved”.

Further it is held and reported  in CLT 2006(1) page No. 527 the Hon’ble National Commission where in observed   “An equipment or machinery can not be ordered to be replacement, if it can be  repaired”.

For better appreciation  this forum  relied citations  which are mentioned here under:-

It is held and reported in Current Consumer Case  2005  Page No. 527 (NS) in the case of Meera&Co Ltd. Vrs. ChinarSyntex Ltd  where in the Hon’ble National Commission  observed “Consumer-    Generating set purchased -  defects developed  during  warranty  period - repairs done on payment - dealer can not be absolved from his liability   because manufacturer has not  been impleaded- dealer deficient in service- order  to dealer   refund   amount with interest to the complainant.”

Again It is held and reported  in CTJ-2005, Page No. 1208 where in  the hon’ble  National Commission   observed  “Both the dealer & manufacturer of the  product having defects  in it, are jointly and severally liable to the  purchaser, because he knows only the dealer from whom he purchased that  product and not its manufacturer”. 

 

Further   It is held and reported in CPR- 2009 (2) Page No. 42  where in  the Himachal Pradesh  State Commission  observed “ we may mention here that it is by now well settled that the C.P. Act, 1986 is a welfare  legislation  meant to give  speedy  in expensive and timely justice to the parties. Similarly it is also well know that where  two views are possible, one favourable to the consumer needs to be followed.”

           

            Again it  is  held and  reported in  Consumer Law today 2014(1) page No. 153 where in the  Hon’ble  Goa State Commission observed “The tax invoice duly   signed by dealer can be considered to be an agreement between the parties subject to which the   sale was   made to the  consumer – liability for defect in article sold both the dealer and manufacturer  are jointly and severally. 

 

Further It is held and reported in C.P.R-2012(1) PAGE No.  303  in the case  of Loga Prabhu Vrs. Adonis Electronics Pvt. Ltd and ors  the Hon’ble  State  CDR Commission, Chennai  where  in observed  “Consumer  is entitled to free service/replacement during warranty period”.

Again  It is held and reported in NC  & SC on consumer cases (Part-VI) 1986 to 2005  page  No. 9089(NS) the Hon’ble National Commission, New Delhi where in observed   “ Motor Vehicle- dealer’s responsibility- vehicle sold by dealer after receiving payment- manufacturing defect- dealer can not be absolved  from his liability in refund the price or replacement-  jointy  liable with manufacture”.

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   manufacturing company   purchased from the  present  O.P.  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.

Since the  above  goods     was sold by the   O.P, it can not evade  liability  for repair/replacement of spare parts on the ground of manufacturer of the  above goods  with whom the  complainant did not have any privity of contract , having  not been impleaded as party to the complaint  or service was to  be  affected. Further the complainant  will be a consumer within the meaning of Section 2(1)(d) of C.P. Act, 1986.

            Further no trader or  manufacturer can escape from its liability of selling defective goods much less the defects that are manufacturing and irreparable. In the instant case  the consumer has been left high and dry due to the defective  above set  and faulty workmanship  used at the time of manufacturing the above set. It was with an object to protect the interest of the consumer  and curb  the tendencies of unscrupulous manufacturers and dealers who care  for the quality or  standard which is required to be maintained in relation to the goods  the Consumer  Protection Act was brought on the  statute book and  by virtue of provisions of Section -14 of the Consumer Protection Act,1986 the Consumer Fora  has the power to direct the dealer to do one or more of the following things, namely:-

                        Sec.14( c) : to return the complainant the price, or as                                               the case may be, the charges paid by the complainant ,

                         (d) to pay such amount as may be awarded by its  as                                              compensation to the consumer for any loss or injury                                                suffered by the consumer due to the negligence of    the  opposite party; 

            The 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 and  the term ‘ deficiency in service ‘  as per Section 2(1)(g) 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.           

The complainant  is a reporter of  Kalinga T.V.  of Rayagada Buero  of  District: Rayagada (Odisha State).  A  Good defect free   mobile set  is highly essential  for     his Journalism  profession for its defect he suffered a lot and got injured professionaly.

In the present case in hand    the defects therein developed  within warranty period of one year. For the best interest of justice in our opinion the O.Ps. should  replace  the  Samsung Mobile  Galaxy A-70 purchased by the complainant  with a new defect free set  with  higher end model    Samsung Mobile  Galaxy A-71 without charging any extra price.

The  Samsung mobile  Galaxy A-70  is not functioning properly within warranty period which was purchased by the complainant on Dt. 2.5.2019   on payment of Rs.28,990/- from the O.P. No.1 . The  defect  was not rectified by the O.Ps service centre and now  the same is lying unused  in the O.Ps Service centre.   Now Samsung Galaxy A 71 costs    Rs.30,000/-. So there  is no much more  differential  amount of   price  between  A-70 to  A-71.  It will just and proper if he be replaced  a new set of same price which  had been paid by the complainant while purchasing.

Further this forum observed the O.Ps are not rendering proper service to the complainant establishes their callousness and whimsical attitude. The  forum feel that the O.Ps services are deteriorating and does not follows professional  ethics.  Due to the same attitude  of the  O.Ps  the complainant deprived of  to get the good service during warranty period.

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 the meet the ends of justice the following order is passed.

                                                ORDER.

In resultant the complaint stands allowed in part against  O.Ps  on contest.

The O.P No.3  (Manufacturer)   is ordered to replace the  Samsung Mobile  Galaxy A-70 purchased by the complainant  now   which  is  lying unused at the Service centre    i.e.  O.P  No.2 premises  with a new defect free set at same price   with  higher end model    Samsung Mobile  Galaxy A-71 without charging any extra price.  Parties  are left to bear  their own cost

 

 

This  is to  be  complied   by the O.Ps.  within 30 days  from the date of receipt of this order. 

Copies of the order be served  on the parties free of cost  as per rule.

Dictated  and corrected by me. 

Pronounced  on  this              19  ^th.     March,  2020. 

 

Member.                                          Member.                                                      President.

 

 

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