BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 31st MARCH 2016
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : HON’BLE MEMBER
COMPLAINT NO. 407/2015
(Admitted on 05.12.2015)
Ramesh Kumar B.
S/o Nanappa Poojary,
R/at 137, Mogru,
Belthangady. …….. COMPLAINANT
(Advocate for Complainant: Sri Sachindra U.)
VERSUS
1. The Properietor,
Zoom Mobiles, Sales and Service,
Shop No. 13, 107F Bharath complex,
Main Road, B.C. road,
Bantwal.
2. Micro Max, authorized signatory,
M/s Mobile world (Kar),
D.No. 5, S-279/38,
Upper ground Floor,
Empire Mall, Kodialbail,
Mangalore.
3. Micromax Informatics Ltd.,
Plot No. 21/14, Block A,
Nariana Industrial Area,
Phase II New Delhi. 110028 ……OPPOSITE PARTIES
(Opposite Party No. 1 to 3 : Ex-parte)
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. ASHA SHETTY
- 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.
The brief facts of the case are as under:
The complainant purchased mobile hand set Micromax Canvas Fine 4 cell phone (IMEI 911417450437326, battery No. VO27751501728208064) from opposite party No. 1 on 06.03.2015 by paying sum of Rs. 7,488/- as per TIN No. 29340812491. It is stated that, the cell phone on /off button and ringer is not working, when it is kept for charging the hand set getting off mode. Thereafter the complainant taken the hand set to opposite party No. 1. The said hand set under warranty and the same was given for repair, but the opposite parties not returned till this date. It is contended that the hand set is defective and because of the above problem the complainant put to inconvenience. Hence the above complaint filed U/sec 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to replace the said machine costing of Rs. 7,488/- with Vat of Rs. 412/- along with interest and compensation and cost of the proceedings.
II. 1. Version notice served to the opposite parties No. 1 to 3 by R.P.A.D. In-spite of receiving version notice neither appeared nor contested the case before this FORA, Hence we have proceeded ex-parte as against the opposite party No. 1 to 3.
III. 1. In support of the complaint, Ramesh Kumar B. (CW1) the Complainant filed affidavit reiterating what has been stated in the complaint and produced Ex. C1 to C7. The defective hand set marked as MO-1. Opposite Parties ex-parte.
In view of the above said facts, the points now that arise for our consideration in this case are as under:-
- Whether the complainant proves that the (MICROMAX Canvas Fine 4 Cell Phone) hand set purchased on 06.03.2015 from the opposite parties found to be defective?-
- Whether the complainant proves that the opposite parties have committed deficiency in service?
- If so, whether the complainant is entitled for the reliefs claimed?
- 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 answered the points are as follows:-
Point No. (i) and (ii): Affirmative
Point No. (iii) and (iv). As per the final order.
REASONS
IV. 1. POINTS No. (i) to (iv):
In the instant case, the Complainant in order to substantiate his complaint filed evidence on affidavit supported by material documents i.e. Ex.C1 to C7. The Ex C-1 is the original receipt issued by opposite party No. 1 reveals that the complainant paid Rs. 7,900/- on 06.03.2015 for purchase of subject hand set. The Ex C-2 is the warranty card and Ex C-3 is the Job card wherein it shows that the complainant lodged a complaint with the opposite parties stated that the hand set on /off button and ringer is not working, when it is kept for charging the hand set getting off mode and the said hand set handed over to the opposite parties. Ex C-4 is the legal notice with acknowledgment issued by the complainant to the opposite parties.
It is pertinent to note that the opposite parties not appeared nor contested the case till this date. The material evidence placed before the FORA is not contradicted nor controverted by the opposite parties. The un-rebutted evidence requires no further proof.
Apart from the above, we also observed that the complainant handed over the hand set to the opposite parties for repair with the complaint mentioned in Ex C-2 (Job Card) within the warranty period. It is noted that the opposite parties have not repaired the hand set till this date. Therefore, it is proved beyond doubt that hand set purchased by the complainant is not up to the quality and suffering from short coming in quality. The opposite parties failed to maintain the quality or standard which is required to be maintained. Therefore, the opposite parties are liable to refund the entire amount because their service towards the customers/complainant herein is not upto the standard and not satisfactory the same is amounts to deficiency in service.
Generally, if the mobile handset has manufacturing defect is to be borne by the manufacturer. That would not mean that, the dealer is absolved from joint and several liabilities. As we know, the manufacturer not deals with the customers directly. Dealer having received the amount, undertaken free service and rectify defect during the warranty do not escape liability towards the manufacturing defect found in the mobile handset. As we know, the contract through dealer/service provider, privity of contract is with them. To ensure execution expeditiously and immediately, if necessary by making the payment/replacement to the complainant initially and then it will be for the dealer to claim reimbursement from the manufacturer. Therefore, the dealer and the manufacturer both are jointly and severally liable for the defects found in the mobile hand set in this case.
In view of the aforesaid reasons, we hold that, the Opposite Party No. 1 to 3 jointly and severally shall refund the cost of the mobile handset Rs. 7,900/- by retaining the defective handset and also pay of Rs. 10,000/- as damages to the complainant for the inconvenience and harassment caused. Further pay Rs. 3,000/- as litigation expenses. Payment shall be made within 30 days from the date of receipt of this order.
In the result, we pass the following:
ORDER
The complaint is allowed. The opposite parties No. 1 to 3 jointly and severally shall pay the complainant an amount of ₹ 7,900/(Rupees Seven thousand nine hundred only) by retaining the defective hand set and also pay Rs. 10,000/-(Rupees Ten thousand only) as compensation and also pay Rs. 3,000/- (Rupees three thousand only) as litigation expenses. Payment shall be made within 30 days from the date of receipt of this order.
In case of failure to pay the above mentioned amount within the stipulated time, the Opposite Party No. 1 to 3 are directed to pay interest at the rate of 12% per annum on the above said total amount from the date of failure till the date of payment.
Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.
(Page No.1 to 7 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 31st day of MARCH 2016)
PRESIDENT MEMBER
(SMT. ASHA SHETTY) (SMT. LAVANYA M.RAI)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW-1 : Mr. Ramesh Kumar B. – Complainant.
Documents produced on behalf of the Complainant:
Ex. C1 :06.03.2015 Original receipt for Rs. 7,900/-.
Ex. C2 :06.03.2015 Original copy of the warranty card
Ex. C3 :20.04.2015 Service Job Card issued by the
Zoom mobiles.
Ex. C4 :23.06.2015 Office copy of the notice issued by the complainant to the opposite parties.
Ex.C5 :03.07.2015 Postal acknowledgment,
Ex, C6:20.07.2015 Postal acknowledgment,
Ex, C7:02.07.2015 Postal acknowledgment,
Witnesses examined on behalf of the Opposite Party:
Nil
Documents produced on behalf of the Opposite Party:
Nil
Dated: 31.03.2016. PRESIDENT
ORDER
The complaint is allowed. The opposite parties No. 1 to 3 jointly and severally shall pay the complainant an amount of ₹ 7,900/(Rupees Seven thousand nine hundred only) by retaining the defective hand set and also pay Rs. 10,000/-(Rupees Ten thousand only) as compensation and also pay Rs. 3,000/- (Rupees three thousand only) as litigation expenses. Payment shall be made within 30 days from the date of receipt of this order.
In case of failure to pay the above mentioned amount within the stipulated time, the Opposite Party No. 1 to 3 are directed to pay interest at the rate of 12% per annum on the above said total amount from the date of failure till the date of payment.
Copy of this order as per statutory requirements, be forward to the parties and file shall be consigned to record room.
(Page No.1 to 7 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 31st day of MARCH 2016)
PRESIDENT MEMBER
(SMT. ASHA SHETTY) (SMT. LAVANYA M.RAI)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
