Dated : 27 Feb 2023

 MR. AYAN SINHA            MEMBER

            This is the complaint u/s 35 of the CP Act, 2019 made by Deepak Kumar Roy alleging unfair trade practice and deficiency in service on the part of the OP, namely, the Signatory Authority Jai Mata Di Communication.

FACTS IN BRIEF

            The case of the complaint is that the Complainant had purchased a Poco X3 Pro phone from OP on 17.10.2021 by paying Rs.17,499/- to which OP issued invoice no.6122 dated 17.10.2021 for the above-said amount. As stated in his complaint petition, after using for several days the phone in question got dead on 10.09.2022. So, the Complainant approached the OP for resolving the issue/problem but the OP did not pay any heed to the Complainant’s grievance.

            Since, OP failed to resolve the issues arose for the phone in dispute within the warranty period, so finding no other alternative way, Complainant requested the OP to refund his money paid for the said phone.

            So, Complainant on several telephonic conversations and email communications requested the OP to resolve the problem cropped up with the phone but the executives of the OP did not give any constructive reply.

            Therefore, the Complainant alleged that the OP was negligent and there was a unfair trade practice and deficiency in service on the part of the OP and thus by such conduct of the OP, Complainant filed this instant case before this Commission praying for a direction upon OP to take necessary steps for rendering service and refund of Rs.17,499/- along with compensation of Rs.50,000/- and litigation cost. Complainant has annexed copy of legal notice dated 27.09.2022 sent to OP along with postal track reports and copy of invoice no.6122 dated 17.10.2021.

            The OP did not contest this case by filing written version in spite of notice was being served upon them and finally this case proceeded ex parte against them vide order no.5 dated 20.01.2023.

            Complainant adduced evidence on affidavit in support of his contention where he has reiterated the facts as mentioned in his complaint petition and thereafter the matter was fixed for final hearing.

POINTS FOR CONSIDERATION

1. Whether the Complainant is a ‘Consumer’ under the purview of CP Act, 2019?
2. Whether there was any unfair trade practice and deficiency in service on the part of the OP as alleged ?
3. Whether the Complainant is entitled to the relief (s) as prayed for?

DECISION WITH REASONS

We have carefully perused the complaint petition and the documents/annexures.

Point No.(i):-

            On perusal of the copy of invoice no.6122 dated 17.10.2021, it is very much clear that the Complainant had purchased one mobile phone being model no. Poco X3 Pro 6/128 Golden Bronze against payment of Rs.17,499/- against which OP issued said invoice with duly signed and stamped.

            So, there is no doubt that the Complainant is a ‘Consumer’ under the purview of CP Act, 2019.

Point No.(ii):-

            On scrutiny of the invoice which is duly signed and stamped by the OP, it is noticed that the said phone was sold with one year warranty and the problem arose on 10.09.2022 and so the legal notice was issued to OP since the grievance of the Complainant was not attended for resolving the issue. Therefore, it is clearly understood that the phone in question had problem well within the warranty period as the said phone was purchased on 17.10.2021. It is also found in the invoice and there are certain terms and conditions for example;  the seller is not liable and responsible for the defect and the services are covered by manufacturer’s service centre. It is very much clear although the Complainant paid a hefty amount of Rs.17,499/-, but could not reap the benefit of his new phone and that also within the warranty period. It is also pertinent to mention that the phone was already in working condition nearly to one year. We have also given a thoughtful consideration that the manufacturer is not made a party in this instant case. But it is settled principle, an agent who sells the product his duty bound to ensure its quality and if the product is found defective, agent should be vicariously liable for the loss caused to the purchaser of any product.

            We have relied upon the judgment passed by Hon’ble NCDRC in 2013 Tata Motors Vs. Rajesh Tyagi and Another decided on 03.12.2013, where the Hon’ble NCDRC was pleased to observe “Thus in our view whenever a manufacturer of the vehicle offers to sell the brand new vehicle to the consumer there is an implied contract as to the claim of the manufacturer that the vehicle being sold by it does not suffer from and will not suffer from any kind of fault or imperfection or shortcoming in the quality, quantity, potency and standard which is required to be maintained.”

            In the instant case, Complainant after buying a phone from his hard earned money in today’s life, never thought he has to take this pain. He had repeatedly requested the seller to resolve the issue as the phone was also within the warranty period but finally when the OP did not pay any heed to his request, he claimed for the refund of the money.

            As per Section 2 (34) of the CP Act, 2019

            “product liability” means the responsibility of a product manufacturer or product seller, of any product or service, to compensate for any harm caused to a consumer by such defective product manufactured  or sold or by deficiency in services relating thereto;”

            So, considering the above-said discussions and the harassment caused to the Complainant, the OP herein, the seller of the product cannot shirk off his responsibility for the said issue. Therefore, we opined that there was certainly a deficiency in service and unfair trade practice on the part of the OP and the Complainant is entitled to the relief(s).

            Moreover, the allegations remain unchallenged and unrebutted also.

            In the instant case, it is already admitted by the Complainant, he purchased the phone on 17.10.2021 and the phone was not in order from 10.09.2022 which is approximately near to one year. That means he had used the phone for this period.

            In our view, if a direction be given upon the OP to repair the said phone along with compensation of Rs.10,000/- and litigation cost of Rs.3,000/- to be paid to the Complainant, justice would be served.

            In the end, complaint succeeds.

Hence it is,

ORDERED

            That the instant complaint be and the same is being allowed ex parte against the OP.

            OP is directed to repair the mobile phone, i.e. Poco X3 Pro 6/128 Golden Bronze, as mentioned in the invoice no.6122 dated 27.09.2021, free of cost and hand over the same with full working condition to the Complainant within 30 days, failing which OP to refund the cost of the phone, i.e. Rs.17,499/- @ simple interest 9% p.a. from the date of filing of this case, until realization in full along with compensation of Rs.10,000/- (Rupees Ten Thousand Only) and litigation cost of Rs.3,000/- (Rupees Three Thousand Only) within the aforesaid period failing which the entire amount shall carry simple interest @10% p.a. from the date of default.

            If the above order is not complied with by the OP within the stipulated time as mentioned above, the Complainant is at liberty to proceed in accordance with law.

            Dictated and correct by me