Sandeep Bhalla vs Ashoka Electronics

PRESENT revision under Section 21(b) of the Consumer Protection, 1986 (for short as "Act") has been filed against order dated 13th August, 2010 passed by State Consumer Disputes Redressal Commission, New Delhi (for short as "State Commission"). By impugned order, appeal filed by the petitioner against order passed by District Consumer Disputes Redressal Forum, (Central), Delhi (for short as "District Forum"), was dismissed.

PETITIONER, who was complainant before the District Forum has pleaded that he purchased a mobile phone-cum pocket PC namely. Imate Pdal from respondent/OP on 7.4.2007 for Rs. 21,900. Later on, the petitioner found that there were serious manufacturing defects in the product, which constitute deficiency of goods. Respondent failed to disclose the address of the manufacturer and has also failed to provide after sale service.

PETITIONER pleaded in his complaint about following defects in the product: 1. The device is not supported by the manufacturer''s web site and upon entering the 1MEI No. it flashes a massage that it is not supported hence no update of its virus databse has been possible. 2. The quality of touch screen is extremely poor. 3. The top portion of touch screen is malfunctioning and to click at a point one has to click above the actual point to get desired result. 4. The exclusive use of style provided in the device in the right side area of the screen at the point ''closed'' and ''scroll bar'' and also at start button as developed ugly scars/marks. 5. The signal quality is very poor. The functioning of processor at the speed of 250 mhz is very slow as comparison to other devices. 6. The GPRS connectivity is impossible. 7. The WIFI connection provided in the device, is extremely slow. 8. The hand free speaker is too small and suffers from designing defects. 9. The promised talk time is 5 hours but the battery hardly last around 2-3 hours and again it has to be recharged. 10. The size of phone pad at touch screen is inadequately designed. The side button are placed unimaginatively and very often are pressed involuntarily while attempting to hold the device.

IT is further stated that the device appears to have been launched in India as a Beta product to test it and gullible people have been persuaded to believe that it is an advanced product. It has been also pleaded by the petitioner that he has suffered monetary loss and mental agony, harassment in financial and hardship, etc. and has claimed the refund of the sale price of the product along with damages to the tune of Rs. 25,000 and a sum of Rs. 5,000 as litigation charges. He has also claimed compensation amount to the tune of Rs. 25,000.

NOTICE was issued to the respondent but it did not appear and was thus proceeded ex parte vide order dated 27.5.2008, passed by the District Forum. The District Forum dismissed the complaint.

AGGRIEVED by the order of the District Forum, petitioner filed an appeal before the State Commission and the same was dismissed by the impugned order.

PETITIONER himself has appeared and has argued his case.

IT is contended by the petitioner that State Commission as well as District Forum have erred in holding that in the absence of any written warranty issued by the vendor, the vendor is not liable for the quality of goods. This view is erroneous on the fact of the case. Further, it is argued that an express warranty or condition does not negative a warranty or condition implied by the Sales of Goods Act, 1930. Respondent has given a warranty purported to have been issued by the manufacturer but it is of no avail, as manufacturer has no presence in the country.

DISTRICT Forum while dismissing the complaint, in its order held: "It has come to the knowledge of the complainant that the product in question was not manufactured in India. It was launched in India. The complainant purchased it from the OP. The retail invoice does not contain any terms of warranty. Since the product has not been manufactured in India its manufacturer is not known and there is nothing on the record to suggest that there is any sale/service centre of the product in India, therefore, the OP cannot remove the defects of the product nor it can change it. The product was purchased on 21.4.2007. The complainant filed the complaint in March, 2008 i.e. after about one year of purchase of product. However, during that period the complainant did not make any complaint of the product to the OP except sending legal notice dated December, 19th, 2007. Thus, the notice was sent after about eight months of the purchase of the product. Since, there was no warranty period of the product and that complainant did not point out the aforesaid defects to the OP immediately after purchase or in a month or so of the purchase, therefore, the OP cannot be asked to replace the product or to provide service to it. As per the pleading, there is no service centre of the product in India. Considering the nature of the product, we are of the view that it will not be appropriate to hold that OP is in any way liable for any deficiency in service."

AGREEING with the findings of the District Forum, State Commission observed: "We are wholly in agreement with the conclusion arrived at by the District Consumer Forum. The only thing we would like to add in furtherance of the findings of the District Consumer Forum, is that purchaser complainant, who practises law, should have been cautious and careful at the time of purchase of the mobile, the invoice issued for which contained no warranty, no manufacturer''s details, which he has not been and he cannot now complain after 8 months of the purchase, that he has been cheated, and the OP be directed to refund him the purchase amount and the compensation."

AS per petitioner''s own case, he purchased the mobile phone from the respondent on 7th July, 2007 and during the period of its use, it has been revealed that the mobile phone has serious manufacturing defects which constitutes deficiency of service and respondent has failed to disclose the address of the manufacturer.

HOWEVER, after using the phone for about eight months, for the first time petitioner gave a notice on 19th December, 2007 claiming that there was defect in the instrument and asked the respondent to make the refund. Admittedly, there was no warranty period of the product and petitioner never pointed out any defects or with regard to the warranty to the respondent after purchase of the mobile. It was only after using the mobile for eight months, all of a sudden petitioner (who is an Advocate) woke up and pointed out the defects in the instrument. Moreover, it is petitioner''s own case that he knew at the time of purchase of mobile that there is no service centre of the product in India.

UNDER these circumstances, the complaint of the petitioner is not maintainable due to delay and laches on the part of petitioner himself. Even otherwise, there are concurrent findings of the facts given by two Fora below.

THE present revision petition has been filed under Section 21(b) of the Act. It is well settled that the powers of this Commission as a Revisional Court are very limited and have to be exercised only, if there is some prima facie jurisdictional error in the impugned order.

RECENTLY, Hon''ble Supreme Court in Mrs. Rubi (Chandra) Dutta v. M/s. United India Insurance Co. Ltd., II (2011) CPJ 19 (SC)=IV (2011) SLT 303=2011 (3) Scale 654, has observed: "Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21(b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21(b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora."

IT is not that every order passed by the Fora below have to be challenged, even if the same are based on sound reasoning. Since two Fora below have given detailed and reasoned order which does not call for any interference nor they suffer from any infirmity or erroneous exercise of jurisdiction, in our opinion, the present petition is nothing but gross abuse of the process of law and deserve to be dismissed with cost.

ACCORDINGLY, the same is dismissed with costs of Rs. l0,000.

PETITIONER is directed to deposit the costs by way of cross cheque for a sum of Rs. 10,000 in the name of "Consumer Legal Aid Account" within four weeks from today.

IN case, the costs are not deposited within the prescribed period, petitioner shall be liable to pay interest @ 9% p.a., till realization.

LIST on 9th September, 2011, for compliance. Revision Petition dismissed.