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Alexander Zachariah v/s Elson Alias, Zinage System

    Revision Petition No. 487 of 2019

    Decided On, 25 October 2019

    At, National Consumer Disputes Redressal Commission NCDRC

    By, THE HONOURABLE MR. JUSTICE R.K. AGRAWAL
    By, PRESIDENT & THE HONOURABLE MRS. M. SHREESHA
    By, MEMBER

    For the Appearing Parties: Elson Alias (In Person), Advocate.



Judgment Text


M. Shreesha, Member

1. The present Revision Petition under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act") has been preferred by the Complainant against the order dated 30.11.2018 passed by the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (for short "the State Commission"). By the impugned order the State Commission has dismissed the Appeal preferred by the Complainant against the Order dated 30.09.2016 of District Consumer Disputes Redressal Forum, Ernakulam (for short "the District Forum") vide which the District Forum had dismissed his Complaint.

2. Briefly stated the facts of the case, as stated in the Complaint, are that the Complainant had entrusted his laptop to the Opposite Party for repair. It is stated that while repairing the said laptop its motherboard was damaged. As the Opposite Party was not willing to provide another laptop or to pay any compensation for the loss occurred to the Complainant, he lodged a Complaint before the Police Station Thevara on 15.05.2014. Before the Police Authorities after discussions the Opposite Party agreed to give a new battery with guarantee for a period of 6 months on payment of half of the price. Thus a new battery was provided to the Complainant on payment of half the price of the battery. But the said battery retained charged only for an hour and 10 minutes and in the subsequent months the said battery retained charged only for 25-37 minutes. The Complainant had taken the same to the Opposite Party on 07.11.2014 and had demanded replacement of the battery but the Opposite Party refused to do so. The Complainant lodged a Complaint with the Police Authorities but the Police Authorities did not take any action, whereafter the Complainant had to file a Complaint before the Additional Chief Judicial Magistrate First Class, Ernakulam on 26.11.2014. The Learned Additional Chief Judicial Magistrate ordered the police to investigate and submit the report. The Police filed the Report before the said Court on 06.11.2015. The Court directed the Complainant to seek relief through the Consumer Fora. Thus the Complainant filed Complaint before the District Forum seeking the following reliefs:-

(a) sum of Rs. 1800/- towards reimbursement of the price of the damaged battery;

(b) Rs. 1234/- towards refund of the "estranged" new battery offered in lieu of the damaged battery;

(c) Rs. 900/- towards auto charges and Rs. 2,000/- towards compensation for mental agony and

(d) Costs of the proceedings.

3. The Opposite Party filed the Written Version resisting the Complaint. The preliminary objection was raised on the maintainability of the Complaint on the ground that the Complaint was filed against the Manager of Zinage Systems and such a post does not exist with the Opposite Party and hence dismissal of the Complaint was sought for non-joinder of the necessary parties. On merits the averments made in the Complaint were denied. It was denied that there was any negligence or laches on the part of the Opposite Party. It was stated that the Complainant earlier submitted the laptop to Corona Systems & Services at Kottayam and they replaced the motherboard of the said laptop. Opposite Party informed the Complainant that original motherboard V 6000 was replaced with DV 6000 model motherboard. The Complainant then asked the Opposite Party to replace the power port with V 6000 model. The Opposite Party accordingly rectified the defects and the Complainant took the delivery. After 10 days the Complainant came to the Opposite Party and complained that the battery was dead. The Opposite Party was ready to provide new battery on payment basis for which the Complainant did not agree and instead filed a Complaint against the Opposite Party with the Police Station Thevara. On the advice of the Police the Complainant was provided with a new battery on half the price with six months warranty. When the warranty period was to expire on 14.11.2014, Complainant approached the Opposite Party on 07.11.2014 and complained that the battery was not having back-up. On enquiry it was made known to the Opposite Party that the Complainant used to charge the battery over-night for more than required time to get full charge and thereby reduced the back-up power of the battery. Instead of surrendering the battery to enable the Opposite Party to replace the battery, Complainant filed a Police Complaint on 07.11.2014 and thereafter a Complaint before the Additional Chief Judicial Magistrate First Class, Ernakulam on 26.11.2014. It is stated that the Opposite Party is not liable to replace the battery free of cost since the Complainant did not surrender the defective battery within the warranty period.

4. The District Forum had dismissed the Complaint on preliminary objection as well as on merits after observing thus:-

"......claim for the refund of the price of the old battery ceases the moment when he accepted the new battery at half of its price and his claim is found not sustainable.

......

We also found that the case filed by the Complainant is against the Manager of the Opposite Party and it is submitted by the Opposite Party that there is no post of manager in the Opposite Party - Zinage Systems. Thus, it is found that the case is filed not against the owners/partners of the Opposite Party concerned. On this account also the complaint is found not maintainable for non-joinder of necessary parties."

5. Aggrieved, the Complainant preferred an Appeal before the State Commission which had dismissed the same after observing thus:-

"........since it (old battery) was replaced with a new battery on the advice of the police, the claim of the Complainant for refund of the price of the old battery cannot be allowed and his claim ceases the moment when he accepted the new battery as its half price. Considering all these facts, the District Forun found that the Complainant is not entitled to realize any amount as prayed for. We consider that there is no reason/ground to interfere with the findings of the District Forum.

The Complaint is filed by the Complainant against the Manager Zinage Systems. In the version filed by the opposite party they contended that there is no post of manager to the establishment and it is a partnership firm. But the complainant has not taken any steps to implead the partnership firm or its partners. The complaint is not against the owners/partners of the opposite party concerned. As rightly found by the District Forum, the complaint is not maintainable for non-joinder of necessary parties. Considering all these facts the District Forum found that the Complainant is not entitled to any reliefs as prayed for and the Complaint was dismissed. We consider that there is no reason/ground to interfere with the Order passed by the District Forum, dismissing the Complaint. So the appeal is to be dismissed."

6. Heard both the sides at length. For the sake of brevity, the facts mentioned in the Complaint, Written Arguments and Written Version are not repeated. It is relevant to mention that the State Commission has dismissed the Appeal preferred by the Complainant on the ground that the Complainant did not take any steps to implead the partnership firm or its partners and that it is not maintainable for non-joinder of necessary parties. Further it is relevant to mention that in the prayer of the Original Complaint, the Complainant has also sought for re-imbursement of the damaged battery together with other expenses and compensation. On a pointed query from the Bench, the Complainant, who was present in person, submitted that he had filed an IA seeking amendment of the same since subsequent to the filing of the Complaint, the CPU also heated and the laptop was not functioning. The Respondent who is present in person contended that he is only a service engineer and that prior to the Complainant handing over the laptop DV 6000 motherboard was installed instead of V 6000 motherboard thereby causing all the problems. Despite this fact, he had made all sincere efforts and delivered the laptop to the Complainant on 05.05.2014 in a working condition and on 15.05.2014 the Complainant had come back to him about a fault in the battery. He submitted that the battery was given to the Complainant had half of its price and that the Complainant had filed Complaints in Thevara Police Station, to the City Police Commissioner and to the Additional Chief Judicial Magistrate First Class Ernakulam and also registered a second Complaint before the Additional Chief Judicial Magistrate First Class on 12.12.2014 only to harass him.

7. Keeping in view the facts and circumstances of the case and particularly to put a quietus to the entire matter a suggestion was made by the Bench on 24.07.2019 to both the parties to amicably settle the matter and the Respondent graciously made an offer of settlement amount of Rs. 25,000/- or providing a new laptop of the same Company. However, the Petitioner refused to accept

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the same stating that he had incurred expenses in travelling from District Forum to State Commission and then to the National Commission. It is the Respondents' case that he too had incurred expenses for travelling to District Forum as he is appearing in person and vehemently opposed imposition of any costs. 8. Perusal of the material on record shows that the State Commission has dismissed the Complaint on non-joinder of parties and instead of remanding the matter back to the Fora below, taking into consideration that the Consumer Complaint is of the year 2015 and the subject matter is of a 'laptop' and four years has lapsed, we are of the view that to put a quietus an amount of Rs.25,000/- may be paid by the Respondent to the Petitioner and all allegations and cases of negligence against the Respondent be withdrawn by the Petitioner. Time for compliance within four weeks from the date of receipt of the copy of this order. This Revision Petition is disposed of with the afore-noted directions.
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