KUNDAN KUMAR KUMAI

This is an appeal u/s 41 of the Consumer Protection Act, 2019, preferred against the order and judgement dated 29/08/2022 passed by the Ld. DCDRC, Malda, in DCC case no.21/2021.

The Appellant’s case in brief is that the Appellant owned one Samsung Mobile

being Model No. M30 having IMEI No. *359451/10/218516/4*.

                                                                   *359452/10/21856/2*

But as the said Mobile did not function properly, the Appellant had taken the mobile to the Respondent No.1/Authorized Service Center, who verified with the purchased voucher and on being satisfied, issued a deposit slip being no. 4302475683 dated 16/05/2020, after noting the problems. The Appellant had then left the mobile in their custody after being assured, that the problem of slow charging and non-functioning of the touch screen would be removed. Since the office of the OP No.1, was located at Kolkata, which was quite a distance, from the place of residence of the Appellant, the Appellant, enquired about the repair works and as the pandemic period had set in, the Appellant had to endure much hardship to visit the office of the Respondent No.1, but on one pretext or the other, the mobile could not be repaired and he even authorized  his friend to get back the mobile after repairing and even after making the numerous calls, no effective result could be found, even after the passage of more than one year. Thus, the Respondents committed unfair trade practice and caused unlawful harassment and mental pain following which, the Appellant had to take recourse by filing a complaint before the Ld. DCDRC, Malda with necessary prayers.

None appeared on behalf of the Respondents/Ops No. 1, 2 & 3, following which the case was heard ex-parte.

After going through the evidence and materials on record, the Ld. DCDRC, Malda, passed the impugned order dismissing the complaint of the Appellant.

Being aggrieved by the above order, the Appellant preferred the instant appeal, on the ground that the Ld. DCDRC, Malda, had erred in law and facts while passing the impugned order.

                                                                     Decisions with Reasons

Ld. Advocate for the Appellant at the time of final hearing had submitted that u/s 73 of the Indian Contract Act the Respondent nos. 1 & 2 were liable for providing the service, being service provider, but in reply to the Legal Notice, had submitted that the mobile was not working due to ‘liquid’ damage which was outside the purview of the warranty. That apart the Ld. Commission below, had failed to appreciate the difference between Exhibit 2 - Job-Sheet and Exhibit 6 – Reply of Legal Notice, causing miscarriage of justice. Moreover, the Respondent nos. 1 & 2, not only failed to provide service, but also failed to intimate the Appellant for the unfair trade practice and restricted trade practice, deficiency in service and he had relied in the judgement passed in Frost Vs. Aylesbury Dairy Co. Ltd., Houghton Vs. Trafalgar Insurance Co. Ltd., United India Insurance Co. Ltd. Vs. M/s. Kiran Combers & Spinners passed by the Hon’ble Supreme Court on 08/12/2006 and Export Credit Guarantee Corporation (India) Ltd. Vs. M/s. Garg Sons International passed by the Hon’ble Supreme on 17/1/2013.

None appeared for the Respondents No.1 & 2, for which the appeal was heard ex-parte.

Ld. Advocate for the Respondent No.3, had submitted at the time of final hearing that the impugned judgement had been judiciously passed and the instant appeal be dismissed.

The undisputed position is that the mobile in question was purchased sometime in the month of October, 2019 and the same had been handed over for repair on 16/05/2020. Therefore, within a short period of 8 months the mobile in question became non-functional. It is not the case of the Respondent nos. 1 & 2, that the mobile in question developed problems, due to any violations of the conditions, laid down in the Receipt dated 16/05/2020. Under the circumstance, the non-repair and non-delivery of the same to the Appellant, is a serious case of unfair trade practice and deficiency in service on the part of the Respondents. Hence, the Respondent nos. 1 & 2 are liable to pay compensation of Rs.10,000/- (Rupees ten thousand) only and also to repair the mobile in question, to the full satisfaction of the Appellant, free of charge. As a result, the instant appeal succeeds.

                                                                                 It is therefore,

                                                                                 ORDERED

That the instant appeal be and the same is allowed ex-parte, against the Respondent nos. 1, 2 & 3 and dismissed against the Respondent no.3 on contest.

The impugned order is hereby set aside.

The Respondent nos. 1 & 2, shall comply with the directions mentioned in the body of the judgement and the Respondent no.3 shall also ensure that the above order is compiled in body and spirit, within 45 days, from the date of receipt of this order. 

Copy of the order be sent to the parties, free of cost.

Copy of the order be sent to the Ld. DCDRC, Malda for necessary information.