BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 15^thJune 2017

PRESENT

  SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

   SMT.LAVANYA M. RAI                   : HON’BLE MEMBER

ORDERS IN

C.C.No.133/2016

(Admitted on 1.4.2016)          

Mr. BasanagoudaMalagimani,

S/o Mr. Malleshappa,

Aged 30 years,

PND Head office,

Karnataka Bank,

Pumpwell, Mangalore 575002,

            D.K. District, Karnataka.                                        

                                                                      ……… Complainant

(Advocate for Complainant by:Sri DS)                                                                                                         

VERSUS

1. Authorised Signatory and

M/s. Nagashree Communication,

Door No. 4.1.12, ground floor,

Regal Towers,

Near K.S.R.T.C Bus stand, Bejai,

Mangalore, D.K. Karnataka.

2. Authorised Signatory,

M/s Motorola consumer Care,

                  K. RahejaI. T. Parke,

Hitech City, Madhapur,

                  Hyderbad 500081.

3. Authorised Signatory,

Flipcart Company,

Reg. Office: W.S.Retail Services,

Private Limited,

Ozone Manay Tech Park,

No.56/18, B block,

                  9^th floor, Garvebhampalya

Hosur Road, Bangalore 560068

                  Karnataka

                                                                   …. Opposite Parties

(Opposite Party No.1: Ex parte)

(Opposite Party No.2: Dismissed)

(Advocate for Opposite Party No.3: KP)

ORDER DELIVERED BY HON’BLE MEMBER

SMT. LAVANYA M. RAI

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

The brief facts of the case are as under:

          On 21.10.2015, the complainant has purchased the subject mobile handset of Motorola company by paying a sum of Rs.16,749/  with one year manufacturer warranty from Opposite Party No.2 and 3 which has been ordered through Opposite Party No.3  for not any  commercial purpose whereas purely for personal use.  Since the complainant was having micro sim and intended to convert the same into nanosim as the same would be compatible for a new handset he was using old handset and subsequent to converting the same into a nanosimthe battery of the mobile handset was not getting charged so the handset was handed over to an authorized repairers of Motorola i.e. Opposite Party No.1.  The complainant has approached the customer care of Opposite Party No.3 since he did not get any positive response from Motorola consumer care in this regard on 8.3.2015 the complainant had again contacted the said Motorola consumer care who informed him to wait up to 24.3.2016 but on the contrary the complainant did neither get any positive reply nor did they do anything in regard to addressing to the problem which the mobile was afflicted with. Hence the above complainant filed under section 12 of the C.P Act 1986 (here in after referred to as the Act) seeking direction to the Opposite Party to refund of Rs.16,749/ along with 9% interest per annum till the final adjudication and to pay Rs.25,000/ for mental harassment and to pay sum of Rs.5,000/ towards the cost of the proceedings.

II. Version Notice served to the opposite parties by RPAD, the Opposite party No. 3 appeared through their counsel and filed version. Opposite Party no.1 and 2 not present hence placed exparte. Opposite Party No.3 submits that the products sold by the Opposite Party No.3 carries manufacturers warranty.  As a reseller, involvement of Opposite Party No.3 in the entire transaction is limited only to selling the products of various manufacturers and in the present complaint, the manufacturer is Opposite Party No.2.  it is pertinent to mention here that there has neither been any shortage of supply nor any deficiency in service on the part of the Opposite Party No.3 liability to provide after sale services does not lie upon the Opposite Party No.3 as the Opposite Party No.3 is not the manufacturer or the service centre engaged by the manufacturer, which in present case is the Opposite Party No.1 and 2. Opposite Party No.3 is an online reseller registered on flipkart.com. Opposite Party No.3 is not the manufacturer but an online reseller and the products sold by Opposite Party No.3 carries warranty issued/provided by the respective manufacturers against manufacturing defects subject to the terms and conditions determined by the manufacturers only.   The Opposite Party No.3 has delivered the product (Mobile phone) in a sealed box to the complainant (as it was received from the manufacturer) within the time specified in the order and hence, there is no deficiency in service on the part of the Opposite Party No.3 it is further submitted that the Opposite Party No.3 does not have any knowledge or facility to ascertain if the alleged defects are due to inherent manufacturing defects or arose due to customer abuse.  Hence, it is the sole duty of the manufacturer and their authorized service station (Opposite Party No.1 and 2), to remove the defects, if, any to the entire satisfaction of the customer.  The mobile phone of the complainant having the alleged defects is a mere statement without any concrete base and hence should be put to strict legal proof of the same.  It is not the case of the selling defective product.  The 30 days replacement warranty provided by the seller (Opposite Party No.3) also stands lapsed on or around 20.11.2015 as admitted by the complainant himself.  It is only after expiry of replacement period, the product had developed alleged problems and the complainant took it to the authorized service centre i.e. Opposite Party No.1 and prays for dismissal.

III. In support of the above complaint, the complainantMr. Basanagoudamalagimani, filed affidavit evidence as CW1 and produced documents got marked at Ex.C1 and C9. Opposite Parties not lead any evidence hence treated nil.

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 purchased handset of Motorolasetfrom the 21.10.2015 opposite parties found to be defective?
2. Whether the complainant proves that  there is a deficiency  of service on the part of the Opposite
3. If so, for what relief and from whom the complainant entitled?
4. 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)and (iii): Affirmative

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

REASONS

5. It is undisputed fact that the complainant purchased mobile handset of Motorola company by paying Rs.16,749/ from Opposite Party No.3 as per Ex.C1 along with one year product warranty as per Ex.C2.  The handset was not getting charged when the complainant convert the micro sim to nanosim, hence the complainant handed over to Opposite Party No.1 for repair as per Ex.C3.  After several visits to the Opposite Party No.1 the mobile handset is not repaired hence communicated the same with Opposite Party No.2 as per Ex.C4 to Ex.C9. But till today the mobile set not repaired nor refunded the purchase price. After goingthrough the version of Opposite Party No.3 stated that the Opposite Party No.3 has delivered the product in a sealed box to the complainant within the time specified in the order.  Hence there is no deficiency in service on the part of the Opposite Party No.3 and does not have any knowledge or facility to ascertain if the alleged defects are due to inherent manufacturing defects and it is the duty of the manufacturer and their authorized service station to remove the defects. The Opposite Party no.3 taking shelter that the product was delivered to the complainant in a sealed box condition as it was received from the manufacturerhence there is no deficiency in service in their part, thecase of the complainant that when he lodged complaint with customer care of Opposite Party No.3 i.e. Opposite Party No.2 motorola consumer care to set right the problem, but Opposite Party No.2 not settle the dispute, therefore the complainant knocking the door of this fora.  The allegation of the complainant that the purchased mobile set is not charging within the warranty period.  The warranty card Ex.C2 is issued by the Opposite Party No.3.  hence the burdon is laid on Opposite Party no.3 to prove that the manufacturing defect. Generally, as we know, the manufacturer not deals with the customers directly dealer having received the amount under taken free service and rectify defect during the warranty do not escape liability towards the manufacturing defect found in the mobile hand set.  As we know, the contract through dealer/service provider, private 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 would be for the dealer to claim reimbursement from the manufacturer.  But herein, the complainant no-where stated that the mobile handset has manufacturing defect.  The contention of the complainant that ordered handset through Opposite Party no.3 by paying Rs.16,749/ is not charging and when it reported to the Opposite Parties by several visits and E mail, neither the mobile set repaired nor refunded the amount which amounts to be deficiency in service of Opposite Parties. However, the complainant visits several times to Opposite Party No.1 for repair of the alleged handset and as per Ex.C3 it is mentioned that not charging.  It is the bounden duty of the service center i.e. Opposite Party No.1 to repair the same.  If there is any defect found in the product then he would have contact the manufacturer/dealer immediately and solve the matter as soon as possible.The Opposite Party No.1 is also responsible to take care of their customers in some extent, hence service center isalso equally liable for the same. Further the ruling cited by the Opposite Party no.3 in this case is not connected to the case in our hand therefore we are not consider the same in the present case. Apart from the abovewenoted that the complainant has not press the case against Opposite Party No.2 by filing memo dated 9.12.2016, hence this fora has discharge the liabilities of the Opposite Party No.2. Now the points for consideration is since the complainant filed memo for not press the case against Opposite Party no.2 we are discharge the liabilities of the Opposite Party no.2 and Opposite Party no.1 and Opposite Party No.3 are jointly and severally liable to refund the amount of Rs.16,749/ within 30 days from the date of this order and also pay Rs.10,000/ as compensation along with Rs.5,000/ as litigation expenses is justified.  As such we answer point no. 1 to 3 affirmative.

In the result, accordingly we pass the following Order:

ORDER

The complaint is allowed.  Opposite Party No.1 and 3 are jointly and severally liable to refund the amount of Rs.16,749/ and also pay Rs.10,000/ as compensation along with Rs.5,000/ as litigation expenses.  Payment shall be made within 30 days from the date of this order.

In case of failure to pay the above mentioned amount with in the stipulated time, the opposite parties are directed to pay interest at the rate of 9% per annum on the above said total amount from the date of failure till the date of payment.

Case against Opposite Party No.2 dismissed.   

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

(1 to9 pages dictated to the Stenographer typed by him, revised and pronounced in the open court on this the15^thJune2017)                                

           MEMBER                                                  PRESIDENT 

 (LAVANYA M.RAI)                              (VISHWESHWARA BHAT D)

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

        Mangalore.                                                      Mangalore.

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1:Mr. Basanagoudamalagimani

Documents marked on behalf of the Complainant:

Ex.C1:The xerox copy of invoice.

Ex.C2: Owners manual.

Ex.C3: Customer unit report dated 18.1.2016.

Ex.C4 to C9: Copies of email communications and replies.

Witnesses examined on behalf of the Opposite Parties:

Nil

Documents marked on behalf of the Opposite Parties:   

Nil

Dated:15.6.2017                                 MEMBER