BEFORE THE DAKSHINA KANNADA DISTRICT  CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 07^thJanuary 2017

PRESENT

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

      SMT.LAVANYA M. RAI        :   HON’BLE MEMBER                                         

COMPLAINT NO.185/2016

        (Admitted on 04.06.2016)

Charan B.K.

S/o. Ramachandra,

Aged about 19 years,

Residing at PeralKodenchikar,

Mandekolu Village,

SulliaTaluk, D.K.

                                                             ……… Complainant 

(Advocate for Complainant by Sri. CNG)         

VERSUS

1. Adkar electronics,

Rep.by it’s Manager,

Shrihari Compex

Main Road, Sullia,

SulliaTaluk, D.K.

2. Autus Enterprises Pvt.Ltd,

Rep.by it’s Manager,

Door No.16.117/2,

Avinash Mosaic Road,

Kulashekhara,Mangalore, D.K.

3. BG Communication,

Rep. by it’s  Manager,

G4, Meridian, Guru Plaza,

Bejai, Mangalore, D.K.

4. Panasonic India Pvt.

Rep. by it’s Manager,

              12^th Floor, Ambience Towers,

Ambience Island,

NH-8 Gurugon 122002,

Haryana, India.

                                                             …. Opposite Parties

 (Opposite Party No.1 and 4: Ex parte)

ORDER DELIVERED BY HON’BLE PRESIDENT

SMT. C.V. SHOBHA:

I.       1. The above complaint is filed under Section 12 of the Consumer Protection Act alleging defect in handset as against the Opposite Parties claiming certain reliefs.  

The brief facts of the case are as under:

The complainant purchased mobile set Panasonic Mobile Eluga Icon from Opposite Party No.1 on 21.11.2015 by paying a sum of Rs. 13,000/ as per the receipt No.6772, the warranty card and manual book, which assured one year warranty.  It is stated that the just after few days from the date of purchase, there found the defects of auto off and there by becomes not functioning properly.  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 are not rectify the problem or defects of the said mobile handset.  It is contended that the hand set is defective and because of the above problem the complainant put to inconvenience.  Hence the above complainant filed before this Forum under Section 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 new mobile set on the basis of warranty or to repay the cost of the mobile.  For a sum of Rs.13,100/ along with interest and compensation and cost of the proceedings.

II.      1. Version notice served to the Opposite Party No.1 to 4 by RPAD.Inspite of receiving version notice neither appeared nor contested the case before this FORA, hence, we have proceeded exparte as against the Opposite Party No.1 to 4. In support of the above complaint, Charan B.K, (CW 1)the Complainant filed affidavit reiterating what has been stated in the complaint and produced Ex.C1 to C6.  Opposite Party Ex parte.

III.     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 the (Panasonic Mobile Eluga Icon) hand set purchased on 21.11.2015 from the Opposite Parties found to be defective?
2. Whether the complainant proves that the opposite parties committed deficiency in service?
3. If so, whether the Complainant is entitled for the reliefs claimed?
4. What order?

           We have considered the notes 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) & (ii): Affirmative.

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

REASONS

IV. POINTS No. (i) & (ii):

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 C6.  The Ex.C1 is the original receipt/ Tax invoice issued by Opposite Party No.1 reveals that the complainant paid Rs.13,100/ on 21.11.2015 for purchase of subject hand set.  The Ex.C2 is the warranty card and Ex.C3 to C5 is the courier receipts where in shows the complainant corresponded with the Opposite Party No.2 pertaining to the said defective handset.  The complainant taken the hand set to Opposite Party No.1 for repair, but the Opposite Parties are not rectify the problem or defects of the said mobile.  Ex.C5 is the legal notice issued by the complainant to Opposite Parties No.1 and 2 and Ex.C6 is the reply given by Opposite Party No.2.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 required no further proof.Apart from the above, we also observed that the complainant firstly handed over the mobile set to Opposite Party No.1 for its repair, even though the Opposite Party No.1 send the defective hand set to Opposite Party No.3 through Opposite Party No.2 and inspite of repeated service not rectified and not functioning properly.  Inturn, the Opposite Party No.2 write a letter to complainant stating that we are not the authorized service center for Panasonic only we are the distributors for Panasonic mobile, hence we are not responsible.  Thereafter the complainant requested Opposite Party No.1 to replace the defective mobile set to new one.  The Opposite Party No.1 forcing to return back the said defective mobile set and refused to replace the same, the said mobile handset is 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 the short coming in quality.  The Opposite Parties failed to maintain quality or standard which is required to be maintained.  Therefore, the Opposite Parties are liable to refund the entire amount of the hand set or to replace the new mobile set on the basis of warranty.Generally, if the mobile handset has manufacturing defect is to be born 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 defects during the warranty time 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 handset in this case. In view of the aforesaid reasons, we hold that, the Opposite Party No.1 to No.4 are jointly and severally shall replace the defective handset to new mobile on the basis of warranty or to repay the amount for a sum of Rs.13,100/ (Rupees thirteen thousand one hundred only) by retaining the defective handset and also to pay for a sum of  Rs.10,000/(Rupees ten thousand only) as compensation and also to pay for a sum of Rs. 5,000/ (Rupees five thousand only) as litigation expenses incurred  by the complainant. The Payment shall be made within 30 days from the date of receipt of copy of this order.

     In the result, we pass the following:

ORDER

The complaint is allowed in part.  The Opposite Parties No.1 to No.4 are jointly and severally shall replace the defective handset to new mobile on the basis of warranty or to repay the amount for a sum of Rs.13,100/ (Rupees thirteen thousand one hundred only) by retaining the defective handset and also to pay for a sum of  Rs.10,000/(Rupees ten thousand only) as compensation and also to pay for a sum of Rs. 5,000/ (Rupees five thousand only) as litigation expensesincurred  by the complainant. The Payment shall be made within 30 days from the date of receipt of copy of this order.

In case of failure to pay the above mentioned amount or replace the new one with in stipulated time, the Opposite Party No.1 to 4 are directed to pay interest at the rate of 12% p.a. on the above said total amount from the date of failure till the date of payment.

The copy of this order as per the statutory requirements be forwarded to the parties and therefore the file be consigned to record.

(Page No.1 to 7 directly dictated by President to computer system to the Stenographer typed by him, revised and pronounced in the open court on this the 07^th day January 2017.)

      MEMBER                                      PRESIDENT

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

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

  Mangalore.                                          Mangalore.    

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1:Charan B.K.

Documents marked on behalf of the Complainant:

ExC1:21.11.2015: The purchase receipt (original).

ExC2: The warranty card (original).

ExC3: 28.11.2015: The copy of courier receipt of 1^st Opposite Party (original).

Ex.C4: 24.12.2015: The copy of courier receipt of 1^st Opposite Party (original).

Ex.C5: 20.01.2016:The copy of courier receipt of 1^st Opposite Party (original).

Ex.C6: The copy of lawyer notice. (Xerox)

Witnesses examined on behalf of the Opposite Parties:

Nil

Documents Marked on behalf of the Opposite Parties:   

Nil

Dated:07.01.2017.                              PRESIDENT