BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 14^th September 2016

PRESENT

        SMT. C.V. SHOBHA             :  HON’BLE PRESIDENT 

        SMT.LAVANYA M. RAI        :   HON’BLE MEMBER                                         

COMPLAINT NO. 408/2015

(Admitted on 27.11.2015)

1. Prashanth S.P,

    aged 27 years

    S/o. Soundra Pandiyan,

    R/at 692, Binny Layout,

    Magadi Road,

    Bangaluru  560 023.

2. Sreejith B.K,

    aged 28 years,

    S/o. Kumaran B.K,

    R/at Baladuka,

    Nekraje  Post,

    Kasaragod  671 543.           

                                                                              …….. COMPLAINANTS

(Advocate for Complainant: Sri SSK)

VERSUS

1. M/s Mobile World (Kar),

    Micromax authorized Service Centre,

    D. No. 5.5.279/34,

    Upper ground floor, Empire Mall,

    M.G. Road, Mangaluru  575 003.

    Rep. by its Managing Director/Partner.

2.  Micromax Informatics Ltd,

     Micromax House, 90.B,

     Gurgaon, Sector  18,

     Gurgaon  122015

     Rep. by its Managing Director/Partner.

3. Snapdeal,

    Jasper Infotech Pvt. Ltd,

    Fremont Terraces,

    #3580, 3^rd Floor,

    13 G Main Road, 4^th Cross,

    Indiranagar, 2^nd Stage,

    Bangaluru.

    Rep. by its Managing Director/Parnter

4. Infinity Enterprices  BIJ

    Khasara No.631,

    Phimi Sadak,

    Village Bijwaran,

    Near CISF Camp, Delhi 110061

    Rep. by its Managing Director Partner.

                                                                                         ……OPPOSITE PARTIES

 (Opposite Parties No.1 & 2 Ex Parte)

 (Opposite Parties No.3 & 4 Deleted)                                       

ORDER DELIVERED BY HON BLE PRESIDENT  

SMT. C.V. SHOBHA

1. 1. This complaint is filed under section 12 of the Consumer Protection Act alleging defect in hand set as against the opposite parties claiming certain reliefs.

       2. The complainant prays for the order for reliefs directing the opposite parties to refund the cost of the mobile set Rs.4,999, to pay a sum of Rs.25,000 as compensation for mental and physical stress, strain and monetary loss suffered, cost of Rs.5,000 as compensation and such other relief as the Forum deems fit under the circumstances of the case under section 14(f) of C.P.Act.

II.           The brief facts of the case are as under:

The top Number Complaint lodged by the complainant’s against the above of the opposite parties Under Section 12 of Consumer Protection Act for the relief as sought for, on the strength that the complainant No.1 was the purchaser of one brand new Micromax Canvas Spark mobile phone IMEI/ESN:No.911429301276555/91142301428057 Model code: SERMOB0664 from Opposite party No.3 that on 29 04 2015 on the payment of a sum of Rs. 4,999/ (Rupees Four thousand Nine hundred Ninety Nine) for the same it is also the case that the purchaser obtained the document of Invoice No. S2CBCE/15 16/11864.  And the said mobile phone is also of having one year warranty free from design, material and workman shop of any defects.  And also the Opposite Party No.2 as well other authorised centers are bound to comply the warranty conditions and extend their after sales service.  Further the opposite party No.2 is also the manufacturer and opposite party No.1 is the authorized service center of opposite party No.2.  The opposite party No.3 is with whom the complainant No.1 placed order for the mobile and the delivered.  And also the case that the delivery receipt is the material for opposite party No.4, shown as a seller.  On the said facts, shows that all are as the opposite parties respectively, with respect of the said transaction and service for the said mobile, addressed the complainant.

Thereafter, while using the same by the complainant No.1 for his utilisation, notice that it was not functioned properly from the day one.  Further, it also noticed that it was having a starting problem with Display Touch screen and it becomes useless.  Hence, for repair purpose the same was entrusted to complainant No.2 for its setright and necessary repair, that on 22.07.2015 and he approached the opposite party No.1 and entrusted for setright the said manufacturing defect.  Accordingly the opposite party No.1 told to come after 2 days.  Even though, when he went there, it was not repaired by him.  Thereafter, on several occasions, though visited, no purpose of him was served and all the said mobile was not delivered.

Inspite of it, even without attending the need of the complainant regarding his mobile set, intentionally the opposite party No.1 was fails in doing so.  Thereafter without any option, the complainant No.2 sent a legal notice through his Advocate to the opposite party No.1 on dated 6 10 2015, it was also duly served on him on 7 10 2015.  Inspite of it, it was not either replied or any of the response.

In support of the above materials, the complainants also taken a plea records its advertisements through newspaper and T.V media, for its attraction by the public in general.  For which the said company of the mobile is of a reputed one and also it functions free from all defects and problems including the sale service of the same will be prompt in future.  Apart from that it also covered with a warrantee period.  For the reason of the same, regarding its purchase of the said mobile is concerned it is causing of such a huge deficiency of service in the case on hand.  Hence, the matter raised for claiming an adequate compensation and other appropriate reliefs.  On the strength of the same there is also a ground of prolonging the service by the concerned opposite party.  This also covered with deficiency of service in all the angle.  That apart continues with unfair trade practice in the business transactions.

On the perusal by us of the above matters with all the materials of pleadings including the available documents, we noticed that the same is suffering with the necessary need to the complainants by the opposite parties concern.

III.      Further, on observation by us of the order sheet maintained in the case by this Forum, the necessary notice sent to all the opposite parties by RPAD with copies of the complainant.  And the same was returned as unserved on opposite party No.3 & 4.  But against opposite parties No.1 & 2 duly served, as per the documents available in the case.  Accordingly, the said opposite parties No. 1 & 2 placed Ex parte as on 3.02.2016, and thereafter proceeded the case for steps against the said opposite parties No. 3 & 4.  But on 12.04.2016 the complainant’s counsel filed a memo and prayed for deleting the said opposite parties No. 3 & 4 accordingly the said memo was allowed and ordered by this Forum as on 12.04.2016 and, permitted them to delete the opposite parties No. 3 & 4 from the case.  And posted the case for complainant’s evidence.  Then that on 31.08.2016 complainant No.2 got examined by way of affidavit evidence and got marked the documents Ex C1 to C6.  And prays for its allow.  Arguments of the complainant also heard.

Among the same of pleading with documentary and oral evidence we come to a point of proving the aspect regarding materials required by the complainant’s.    As such, the point regarding.

IV.    In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the complainant proves that  there is a deficiency  of service on the part of the Opposite

Parties No. 1 & 2?

2. If so, for what relief and from whom the complainant entitled?
3. What order? 

We have considered the notes/oral arguments submitted by the learned counsel and also considered the materials that was placed before this Forum and answer the points are as follows:.

Point No. (i):  As per Affirmative

Point No. (i):  As per Affirmative

Point No. (iii): As per the final order.

REASONS

V. POINTS No. (i):  For the convenience, we came to a considered opinion that the point No.1 is in the affirmative, as the complaint is proved against the opposite parties No. 1 & 2.  For the simple reasons is that when we observed from the materials available by the pleading, documents and the affidavit evidence, denotes that the complainant suffered from the deficiency in service by the opposite parties No. 1 & 2.  That apart among the documents Ex.C1 is a cash on delivery of the said mobile set of retail Invoice and also it disclose that a sum of Rs. 5,640/ (Rupees Five thousand Six hundred Forty only) under the column of its value and against the same the collecting amount of a sum of Rs. 4,999/(Rupees Four thousand Nine hundred Ninety Nine only) from the complainant, as the same was demanded by him with the opposite parties No.1 & 2.  And as per Ex.C2, it is a Job sheet of opposite party, Ex.C3 is a warranty card pertains to the said mobile set, Ex.C4 is the copy of legal notice addressed to opposite party No.1 and as per Ex.C5 & C6, it was duly served through post to opposite party No.1 as on 7.10.2015.  With all the above aspects it is enough to conclude by us that the said mobile set was sold by opposite party and also it was an agreement for its repair and service for the reason of utilising the same by the purchaser.  Such being the case, when the said supporting materials found before us we come to a conclusion that there is a deficiency of service to the complainant concerned and for the same the opposite party was and is held responsible and liable.  Hence, we have no other go unless to conclude this point as it is in the affirmative.

POINTS No. (ii): Regarding this point, when once the above point No.1 is in the affirmative, there is no option or remedy, unless to go ahead with this point also in the affirmative and the complainant is entitled for the relief and which both the opposite parties No. 1 & 2 held responsible and liable in order to comply with the same, what the quantum of relief the complainant is entitled.  Further, regarding the quantum is concerned, as per the Ex.C1 a sum of Rs. 4,999/ was collected and as per Ex.C2 the said defected mobile set was accepted for its repair.  Clubbing with both, we considered that once when the said defected mobile set was accepted by the opposite party for the repair as on the date, there is no any document or any material even that of no reply to the legal notice issued as per Ex.C4, it is enough that the said mobile set was not returned with proper condition, for its necessary use by the complainant.  Hence, it is a clear case, that the said collected amount of Rs. 4,999/, the complainant is entitled by way of refund to him by both the opposite parties No. 1 & 2 either jointly or severally, such being so it is the amount collected as per Ex.C1 on 29.04.2015 so that till the day the complainant is also entitled for the interest at the rate of 10% per annum on the said entire sum of Rs. 4,999/, till its realisation.  Apart from that, when once the said deficiency was happened and also it was amounting to unfair trade practice of transactions in the business, the complainant is also

entitled for the reasonable compensation of a tune of 3,000/ (Rupees Three thousand only), including a another sum of Rs. 2,000/ (Rupees Two thousand only) towards cost of litigations expenses incurred by them.  Accordingly, both the opposite parties No. 1 & 2 hereby comply the same.     

POINTS No. (iii): In the result, accordingly we pass the following Order:

ORDER

The Complaint is allowed in part considering is that Opposite parties No.1 & 2 is hereby directed to pay/refund either jointly and severally liable to pay a sum of Rs. 4,999/ (Rupees Four thousand Nine hundred Ninety Nine only) together with interest at the rate of 10% per annum from 29.4.2015 till realisation on the said entire amount.  Further also directed to pay a sum of Rs.3,000/ (Rupees Three thousand only) towards compensation and also to pay Rs. 2,000/ (Rupees Two thousand only) towards the cost of litigation expenses to the complainants, as they are entitled for the same.  Hence the payment shall be made within 30 days from the date of receipt of the copy of this order.

    If in the event of default, the opposite parties No.1 & 2 are liable to pay penal interest at the rate of 2% per annum on the said amount.

Copy of this order as per statutory requirements, be forwarded to the parties and therefore the file shall be consigned to record room. 

(1 to 8 pages dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 14^th day of September 2016

    PRESIDENT                                             MEMBER

    (SMT. C. V. SHOBHA)                          (SMT. LAVANYA M.RAI)

D.K. District Consumer Forum                   D.K. District Consumer Forum

     Mangalore.                                               Mangalore.    

ANNEXUR

Witnesses examined on behalf of the Complainants:

CW.1: Mr. Shrijith B.K

Documents marked on behalf of the Complainants:

Ex.C1: Dated: 29.04.2015         Retail Invoice as issued by

                                              Opposite Party No.4

Ex.C2: Dated: 22.07.2015         Job Sheet issued by the

                                              Opposite Party No.1 (Original)

Ex.C3:                                     Mobile Warranty card of  

                                              Opposite Party No.2 (Original)      

Ex.C4: Dated: 06.10.2015          Office copy of Advocate Notice

Ex.C5: Dated: 06.10.2015           Postal receipt (Original)

Ex.C6: Dated: 07.10.2015           Postal Ack. Card signed by opposite

    Party No.1 (Original).

Witnesses examined on behalf of the Opposite Parties:

Nil 

Documents produced on behalf of the Opposite Parties:

Nil 

Dated: 14.09.2016.                                              PRESIDENT