BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 18th February 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI T.C. RAJASHEKAR : HON’BLE MEMBER
ORDERS IN
C.C.No.40/2014
(Admitted on 27.01.2014)
Mr. R. Srinivas Baliga,
S/o Late R Venkatesh Baliga,
Aged 43 years,
Residing at Door No7.3.203,
Raayee Compound, Tilak Nagar,
Boloor, Mangalore 575003.
….. COMPLAINANT
(Advocate for the Complainant: Sri RBM)
VERSUS
1. Authorised Person,
Mobile Care, Near Passport Office,
Kodialbail, Mangalore 575003.
2. Authorised Service Centre,
Samsung Mobile, Divya Enclave,
Opp: Canara College,
Jail Road, Managlore 575003.
3. Authorised Person,
Samsung Indi Electronics Private Limited,
A-25, Ground Floor, Front Tower,
Mohan Co-Operative Industrial Estate Suites,
New Delhi 110044.
…............OPPOSITE PARTIES
(Advocate for the Opposite Party No.1 & No.2: Ex-Parte)
(Advocate for the Opposite Party No.3 : Sri TNR)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI. VISHWESHWARA BHAT D:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite parties alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The complainant claims he purchased a Samsug Note II7100 mobile with Samsung Micro USB connecter manufactured by opposite party No.3 from opposite party No.1. On 7.10.2013 the device became dead due to problem in connecting with the network and immediately he approached opposite party No.1 with the complaint and opposite party No.1 advised the complainant to approach opposite party No.2 for repair and application and the device got repaired as per their advice. On 27.11.2013 the problem occurred in touch screen and stopped once again showed it and they once again adviced to update it with new software and he then contacted the toll free number of customer care on 15.12.2013 and on 17.12.2013 there was some words used by official of opposite party No.3 who subsequently to complainant on his saying. Despite reminder and request and legal notice opposite party No.3 is not willing to replace the hand set. As the action amounts to deficiency in service seeks relief claimed in the complaint using it for business purpose.
II Opposite party in the written version contends exhaust on his remedies before approached a Forum complainant had not placed any material. The problem in network even as per the complainant when there is network alleged the product with inherent defect. There is clearly mentioned in the warranty card that it is not applicable if used for commercial purpose. Even according to complainant he was using it for business purpose. Hence the claim is not maintainable before the Forum as document as to the alleged touch screen and other problems alleged on various days produced by the software problem will have direct effect to operating system of the customer device and not due to any inherent defect as alleged by the complainant. Hence seeks dismissal.
2. In support of the above complainant Mr. R. Sriniva Baliga filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked Ex.C1 to C6 and MO 1 as detailed in the annexure here below. On behalf of the opposite parties Mr. J Srinivas Joshi (RW1) Senior Manager, also filed affidavit evidence and answered the interrogatories served on him got marked Ex.R1 as detailed in the annexure here below.
III. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsel for complainant filed notes of arguments. Opposite parties not filed notes of arguments taken as nil. We have considered entire case file on record including evidence tendered by the parties and notes of argument of the parties. Our findings on the points are as under are as follows
Point No. (i): Affirmative
Point No. (ii): Affirmative
Point No. (iii): As per the final order.
REASONS
IV. POINTS No. (i): The complainant purchased product manufactured by opposite party No.3 is not disputed by opposite party. Hence there is relationship of consumer and service provider between them. The claim of complainant that there is defect in the hand set and despite repeated demands he was not setright and due to repeated problems opposite party No.3 ought did not replace the part. Opposite party No.3 did contest claim shows that the parties are at dispute on this aspect. Hence there is dispute between the parties as defined under section 2 (1) (e) of the C P Act. Hence we answer point No.1 in the affirmative.
POINTS No.(ii): The words at para 2 of the complaint made by complainant challenged by opposite party No.3 reads thus:
At the time of purchase it is recommended in the show room by the sales person of opposite party No.1 that the said device is very good device and as the complainant being a Business man had very much useful of such device for his business work as the same was useful for his business and professional dealings and by impressing upon such representation the complainant purchased the same.
From the above portion complainant did mention that it was contended for opposite party that the complainant was using mobile for commercial purpose.
2. Hence as per condition in the warranty in respect of exclusion clause No.7 if the product is used for commercial warranty is not applicable. The exclusion clause reads thus:
Warranty Condition:
7. In case of any damage to the product/misuse detected by the Authorised Service Centre personnel, the warranty conditions are not applicable and repairs will be done subject to availability of parts and on a chargeable basis only
3. However it is to be noted it is not the case of opposite party that before the purchase of the product complainant was made aware of the exclusion clause in the warranty. Hence in our opinion opposite party cannot take advantage of this exclusion clause to avoid liability under the terms of the warranty.
4. As to the recurring problems with the mobile Ex.C6 is the copy of the exchange of e-mails between the complainant and the one Mr. Anubhav Sud, Manager of opposite party No. 3 where in for the use of the rude language apology was tendered on by the said official with complainant. He also assures the product in question will be serviced and the complainant can use the hand set without any problems. Again on the same day 23.12.2013 as a promised made to service the hand set and the mention made that he cannot replace the hand set. There is another email of 28th December 2013 the hand set will be repaired. Hence on behalf of opposite party No.3’s witness he admits the handset was sold to complainant by opposite party No.1 and that the opposite party No.1 directed to complainant states he has no knowledge of opposite party No.1 approached opposite party No.2 for repairs. Even when the question were asked to opposite party No.3’s witness as to the nature of problems with which the complainant approached opposite party No.2 opposite party No.3 is authorised service centre. He expressed ignorance and also seeks proof and it should have been with in the knowledge of opposite party No.3 ought to have gathered the relevant information from opposite party No.2. Considering this and the evidence of complainant, complainant established that the hand set in question purchased by complainant from opposite party No.1 the product of opposite party No.3 had recurring problem. Which in in fact the is produced before the Forum and marked at MO1 and as the complainant in our view established MO1 defective hand set and that opposite party No.3 failed to service it properly and that it is a defective product requiring replacement as repeated requires by opposite party No.2 did not setright MO1. Hence complainant proved deficiency in service on the part of opposite party No.3 in the affirmative.
5. As per Ex.C1 complainant paid Rs.31,500/ towards the purchase of the hand set from opposite party No.1. As such opposite party shall be directed to refund this amount of Rs.31,500/ with interest at 9% from the date of legal notice i.e. 22.12.2013 till the date of payment to complainant. As to damages claimed by complainant opposite party No.2 towards tension and hardship experienced by complainant an amount of Rs. 12,000/ in the circumstance would meet the ends of justice. Opposite party No.3 shall be directed to pay cost of the litigation and advocate fee fixed at Rs.5,000/.
POINTS No. (iii): Wherefore the following order
ORDER
The complaint is allowed with cost. Opposite party no.3 is directed to pay Rs.31,500/ (Rupees Thirty One thousand Five hundred only) with future interest at the rate of 9% per annum from the date of legal notice i.e. 22.12.2013 to complainant till the date of payment.
2. Opposite party No.3 shall also directed to pay Rs.12,000/ (Rupees Twelve thousand only) towards compensation.
3. Advocate fee fixed at Rs.5,000/ (Rupees Five thousand only).
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 7 directly dictated by President to computer system to the Stenographer typed by her, revised and pronounced in the open court on this the 18th February 2017)
MEMBER PRESIDENT
(SRI T.C. RAJASHEKAR) (SRI VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Additional Bench, Mangalore Additional Bench, Mangalore
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. R. Sriniva Baliga
Documents marked on behalf of the Complainant:
Ex.C1: Copy of invoice
Ex.C2: Warranty Card
Ex.C3: Copy of Legal Notice dated 22.12.2013
Ex.C4: Postal receipts
Ex.C5: Postal AD Cards
Ex.C6: Copy of e-mail communications
MOI: Defective mobile handset
Witnesses examined on behalf of the Opposite Parties:
RW1 Mr. Mr. J Srinivas Joshi, Senior Manager
Documents marked on behalf of the Opposite Parties:
Ex.R1: Customers details cum Warranty Card
Dated: 18.02.2017 PRESIDENT
