F I N A L O R D E R
Facts of the case of the complainant, in short, is that this complainant purchased one mobile phone brand Sansui ST71 – black / white at Rs. 5,999/- - on 13.8.2015 through o.p. nos. 1 & 2 vide order no. 1000716890 on the basis of cash on delivery and o.p. nos. 1 & 2 issued a retail invoice along with warranty card to the complainant. After two months from the date of purchase this case mobile phone started suffering defect. So this complainant went to the service centre/ o.p. no.3 on 08.10.2015 for repairing of the same; but o.p. no. 3 suggested to send the said mobile set to o.p. no. 6 / through DTDC and issued DOA Certificate in favour of the complainant. O.p. no. 6 received the said mobile set on 09.11.2015 but o.p. no. 6 did not return the same to this complainant despite receipt of several emails by him.
So this complainant has filed this case with a prayer to direct o.p. no 6 to return the said mobile phone after its repairing or return the price of the said mobile phone to the tune of Rs. 5,999/- and other reliefs.
Summons of this case were issued to all o.ps. but all o.ps. except o.p. nos. 4 & 5 appeared. O.p. nos. 4 & 5 appeared and filed their respective written versions jointly ; So this case has been heard ex parte against all the o.ps. except o.p. nos. 4 & 5.
DECISION WITH REASONS :
Ld. advocate for the complainant argued by reiterating the facts as stated in the petition of complaint.
On the other hand ld. advocate for the o.p. nos. 4 & 5 argued interalia that they acted as courier and they have got no concern about the purchasing and repairing of the case mobile phone. Moreover, no relief has been prayed by the complainant against this o.p. So this complaint is liable to be dismissed against them.
We have carefully heard the submission made by the ld. advocate for both sides. Perused the petition of complaint and materials on record. It reveals from Annexure ‘A’ which is a photo copy of retail invoice. It proves that complainant purchased Sansui – ST 71 – black / white mobile phone on 13.8.2015 of Rs. 5,999/-. Annexure ‘B’ is the DOA certificate. As per Annexure ‘B’ that the problem mentioned in thisAnnexure ‘B’ that the “battery overheating” and warranty status in. It proves that case mobile phone suffered defect during warranty period. DOA certificate issued on 15.10.2015. These documents have not been challenged either by the o.p. manufacturer or its dealer / o.ps.
Moreover, in view of observation of the Hon’ble National Commission reported in 2018 ( 1 ) CPR page 314 (NC) that “non filing of written version by the o.p. amounts to admission of allegation leveled against them in this consumer complaint.” Moreover, we do not find any reason to disbelieve the unchallenged contents of written complaint as well as documents. So we hold that the case mobile phone was purchased by the complainant from the dealer of o.p. no. 6 and o.p. no. 7 at Rs. 5,999/- only and said mobile phone suffered defect within warranty period.
Further case of the complainant is that he has sent mobile phone through courier, o.p. nos. 4 & 5, to the manufacturer company for its repairing. But o.p. no. 6, manufacturer, has not returned the same after repairing.
It has been observed by the Hon’ble State Commission reported in 2016 ( 4 ) CPR page 397 ( NC ) interalia that “manufacturer cannot escape from its liability in the matter because dealer is selling a product duly manufactured by them only.”
In view of the facts and circumstances we hold that o.p. no. 6 being manufacture cannot escape its liability in the matter of repairing or replacing the case mobile phone sold by manufacturer through its dealer to complainant. So we hold there is deficiency in service on the part of the o.p. no. 6.
Moreover, we find that o.p. nos. 4 & 5 are courier, they have got no liability about the sale or defect occurred in the case mobile phone. So this complaint is liable to be dismissed against o.p. nos.s s4 & 5 as there is no cause of action against o.p. nos. 4 & 5.
Moreover, we find that other o.ps. except o.p. nos. 6 & 7 who are manufacturer of the case mobile phone have got no involvement about the manufacturing of the case mobile phone. Moreover, case mobile phone was purchased directlycash on delivery through on line from o.p. nos. 6 & 7.
In view of the circumstances we hold that the complainant is entitled to the relief as prayed for.
Considering the value of the mobile phone to the tune of Rs. 5,999/- we like to award of Rs. 500/- as compensation as well as cost of litigation.
In the result, the complaint case succeeds in part.
Hence,
O R D E R E D
That the C. C. Case No. 94 of 2017 ( HDF 94 of 2017 ) be and the same is hereby allowed ex parte against o.p. nos. 6 & 7 with cost and dismissed ex parte against the rest.
That the o.p. nos. 6 & 7 are hereby directed either to replace the case mobile phone with new one of similar description which shall be free from any defect or return the price of Rs. 5,999/- only of the case mobile phone to the complainant by 30 days from the date of receipt of copy of judgment failing which o.p. nos. 6 & 7 are to pay simple interest @ of 8% p.a. on Rs. 5,999/- i.e., price of case mobile phone from 1st day of July, 2018 till its full realization to complainant.
O.p. nos. 6 & 7 are also further directed to pay Rs. 500/- as compensation as well as litigation costs to complainant by 30 days from the date of receipt of copy of judgment.
If the o.p. nos. 6 & 7 fail to comply with the direction made in the order within the stipulated period; then complainant is at liberty to get this order / judgment implemented with due course of law.
Let plain copy of this order / judgment be given to the complainant, free of cost, and a plain copy of the judgment be also sent to all o.ps. free of costs by registered post / speed post with A.D. as early as possible.
DICTATED & CORRECTED
BY ME.
( Abdul Kuddus )
President, C.D.R.F., Howrah.
