State Consumer Disputes Redressal Commission
Mahesh S/O Dayaldas Madhwani vs Jayant S/O Madanrao Hame on 20 February, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA
STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, MAHARASHTRA
CIRCUIT BENCH
AT NAGPUR
5 TH FLOOR,
ADMINISTRATIVE BUILDING NO. 1
CIVIL LINES,
NAGPUR-440 001
First Appeal
No. A/10/645
(Arisen out
of Order Dated 13/09/2010 in case No. CC/81/2010 of District Consumer
Forum, Bhandara)
Mahesh s/o Dayaldas Madhwani,
C/o. Variety Mobile & Repairing Centre,
Near of Shri Tumsareshwar Ganpati Mandir,
R/o. Tumsar-441 912, Tah. Tumsar,
Distt. Bhandara. (M.S.)
...........Appellant(s)
Versus
Jayant S/o Madanrao Hame,
R/o. Bajaj Nagar, Tumsar- 441 912
Tah. Tumsar, Distt. Bhandara (M.S.)
...........Respondent(s)
BEFORE:
HON'ABLE MR. B.A.Shaikh PRESIDING MEMBER
HON'ABLE MRS. Jayshree Yengal MEMBER
PRESENT:
Adv. Mr.Motwani
......for the Appellant
Adv. Mr. Raut
......for the Respondent
ORDER
(Delivered on 20/02/2014) PER SHRI B.A. SHAIKH, HON'BLE PRESIDING MEMBER.
1. This appeal is preferred against the order dated 13/09/2010 passed in Consumer Complaint No 81/2010 by the District Consumer Forum, Bhandara, by which the complaint has been partly allowed.
2. The case of the complainant has set out in the complaint in brief is that he purchased new mobile handset of Nokia Company Model No. 3310C, black with 1GB Memory card for Rs.4300/- on 08/08/2009 from the opposite party (for short O.P.) who is the authorized dealer of the Nokia Company. The said mobile handset started giving trouble since the month of Oct. 2009 and its memory card was also not working properly. Therefore complainant took it to O.P., who also said that it was not working properly. The warranty period was not over. Therefore, the O.P. sent that hand set on 06/12/2009 to Nokia Care Centre for its repairing. The said hand set was then returned to the complainant through the O.P. However, the defects were not removed. Therefore second time the complainant took that handset to the O.P. within warranty period. It was again sent to the Nokia Care Centre. It was returned to the complainant on 26/12/2009. Thereafter also the said mobile hand set did not work. Therefore complainant served legal notice dated 07/04/2010 to the O.P. In spite of service of notice also the O.P. did not repair the handset and it also did not give reply of that notice. Therefore, the complaint prayed that direction be given to the O.P. to replace the mobile hand set by new one to him or in alternative to refund him its price of Rs.4300/- and also to pay him Rs.2000/- towards litigation expenses.
3. The O.P. filed written version and resisted the complaint. He raised preliminary objections to the effect that the complaint is bad in law for non joinder of manufacturer of the mobile hand set namely Nokia India Pvt. Ltd., New Delhi as a respondent and that Shri Mahesh Dayaldas Madhwani who is joined as a Prop. Variety Mobile and Repairing Centre is not actually proprietor of that shop. It is denied that the O.P. is a authorized dealer of Nokia Company. It is admitted that the complainant purchased the aforesaid Nokia hand set of Rs.4300/- for O.P. It is submitted that the shopkeeper is not responsible for warranty of the mobile hand set. The customer has to approach directly to Customer Care Centre established by the manufacturer. It is admitted that the O.P. sent the mobile hand set of the complainant to Customer Care Centre for repairing. However, it was found that the mobile hand set was damaged due to liquid intake and hence it was not repairable. Therefore the repairing Centre sent it back. Hence, it is requested by O.P. that complaint may be dismissed.
4. The Forum below after hearing Advocates of both parties and considering the evidence brought on record found that it is not necessary to join manufacturer to complaint when goods developed problem during warranty period. The Forum below relied upon observation made by Hon'ble National Commission in this respect, in the case of Blue Chip India Vs. Dr. Chandrashekar Patiyal, I (2007)CPJ 69. The Forum below also found that as the warranty period was not over, the dealer is liable to provide service to the customer when the goods sold by it developed the defects. The Forum also found that the mobile handset sold to complainant by the O.P. was not working properly during the period of warranty and that the O.P. did not got it repaired and hence it is liable to replace the said mobile hand set to new one or to pay its price Rs.4300/- to the complainant and also to pay cost of Rs.1000/- to the complainant. According direction has been given under impugned order to the O.P.
5. Feeling aggrieved by that order, the original O.P. has preferred this appeal.
6. We have heard Advocates appearing for both sides and we have also perused the written notes of argument and other documents filed by them. The learned Advocate of the respondent submitted that his written notes of argument may be treated as his oral argument.
7. The learned Advocate of the appellant reiterated the case of the original O.P. as put forth above in brief. He further submitted that the job card produced on record shows that the mobile hand set was liquid damaged and therefore it cannot be repaired . He relied upon the terms and conditions of the repairing and submitted that as mobile hand set was liquid damaged, the original complainant/ respondent herein cannot claim that the appellant should repair it as warranty period was not over. He also submitted that the Forum below erred in holding that memory card was also defective, without pleading in the complaint to that effect. Thus he submitted that as memory card was found blank, the complainant may have downloaded it unauthorizely and therefore it might have developed the problems. He also submitted that the appellant is no authorize dealer of Nokia Company and he simply sent mobile hand set to authorized work shop and therefore the impugned order is illegal and it may be set aside.
8. On the other hand, the learned Advocate of the respondent herein in his written notes of argument has supported the impugned order and submitted that the appellant did not produce the dealership certificate and therefore there is possibility that the mobile hand set was made by assembling parts by the appellant or it may have been manufactured by other company. He thus submitted that appeal may be dismissed.
9. It is thus not disputed that appellant had sold mobile hand set with memory card to the respondent herein on 08/08/2009 and as the same was not working properly due to certain defect, it was taken to the appellant for repairing, but its defect was not removed and still it is not working properly. Moreover it is not disputed that the warranty period of the same was not over when it was handed over to the appellant twice for repairing. In view of the aforesaid decision of the Hon'ble National Commission in the case of Blue Chip India Vs. Dr. Chandrashekar Patiyal, I (2007)CPJ 69, we find that in such a case the manufacturer is not a necessary party. Moreover we also find that as admittedly the appellant sold the mobile hand set to respondent herein, the complaint is not bad in law either for mis joinder of party or non joinder of necessary party.
10. No doubt as one of the terms and condition of the repair, it is not obligation of the Nokia Care Centre to repair its product, if it is found water logged. However, no affidavit of any expert or technician of Nokia Care Company filed by the appellant to show that the said mobile hand set was not working due to water logging. Hence, the appellant cannot take benefit of the aforesaid term and condition for repair.
11. The appellant cannot shirk his responsibility being the dealer of mobile handset by simply saying that it was the responsibility of Nokia Care Centre to repair the mobile hand set of the complainant during warranty period. The complainant is entitled to make claim against the dealer i.e. appellant who sold the mobile hand set to him and did not get it repaired from Nokia Care Centre during warranty period, particularly when it is found that there is no breach of any term and condition for the repair.
12. Thus we hold that the Forum below properly appreciated the evidence brought on record it also came to proper conclusion. There is no merit in this appeal and hence it deserves to be dismissed.
ORDER i. The appeal is dismissed.
ii. No order as to cost in appeal.
iii. Copy of order be furnished to both parties free of cost.
Dated:- 20/02/2014.
[HON'ABLE MR.
B.A.Shaikh] PRESIDING MEMBER [HON'ABLE MRS.
Jayshree Yengal] MEMBER ay