BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 10^th November 2016

PRESENT

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

        SMT.LAVANYA M. RAI        :  HON’BLE MEMBER                                        

COMPLAINT NO.82/2016

        (Admitted on 20.02.2016)

Mr. Lokesh M.J,

S/o Janardhana,

Aged 35 years,

Office No.43, 3^rd floor,

Bharath Building, P.M.Rao Road,

Hampankatte, Mangaluru.

                                                                ……… Complainant

(Advocate for Complainant by Sri. SRS)         

VERSUS

1. Authorised Signatory,

Managing director,

Sangeetha Mobiles Pvt, Ltd,

Mohitisham Complexes Pvt, Ltd,

                     6^th & 7^th Floor Empire 

M.G.Road, Mangaluru 575003.

2. Authorized Signatory,

M/s. Coretech Service, 1st floor,

Metro plaza, above Axis Bank,

Velencia, opp. More Supermarket,

                  Mangalore 575002

3. The Authorized Signatory,

Mangaging Director,

Sony Mobile Communication,

(India) Pvt, Ltd, A.31, 2^nd Floor,

Mohan Co operative Industrial estate,

Mathura Road, New Delhi, India.
                                                          …. Opposite Parties

        (Opposite Party No.1: Exparte)

        (Advocate for the Opposite Party No.2 and 3: PKS)

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 defective handset as against the opposite party claiming certain reliefs.
2. The brief facts of the case are as under:

          The complainant had purchased a mobile set along with battery manufactured by sony Xperia M dual sim C2004 mobile set from the Opposite Party No.1 on 19.01.2014 by paying a sum of Rs. 12,001/ including vat charges.  At the time of purchasing the mobile set Opposite Party No.1 apprised and convinced the complainant that Xperia M Dual sim C2004 mobile set which is the latest and the fastest moving set and there is no complaint what so ever nature and the complainant could purchase the said set.  Further Opposite Party No.1 also assured to the complainant that if there is any defect found either in set or in earphone, the complainant could approach Opposite Party No.2 or he would either repair it or replace the set.  The manner, the way, and the sweet words of the Opposite Party No.1 who is the authorized dealer in Mangalore, the complainant was attracted and accordingly purchased the Xperia M Dual Sim C2004 mobile set along with earphone irrespective of its price of Rs. 12,001/ for that opposite Party No.1 had issued a bill and also given one year company warrantee and further given additional one year warrantee for the set. On 21.07.2015 the above said mobile set developed with some problem in the power button.  The power button automatically switching on.  Therefore, the complainant took the mobile set to the dealer Opposite Party No.1 and explained the problem.  In turn the Opposite Party No.1 told that, the complainant should go to Opposite Party No.2 who is service center.  As advised by Opposite Party No.1 the complainant took the set and handed over the same to Opposite Party No.2 after verifying the set Opposite Party No.2 issued job sheet and asked to come after one week.  Accordingly the complainant visited Opposite Party No.2 and enquired about the set, at that time Opposite Party No.2 told that in order ro rectify the defect found in the set the complainant require to pay a sum of Rs. 6,000/.  Hearing the reply of the Opposite Party No.2 the complainant got shocked and thereafter told that the set is within in the warrantee period and requested to set right the defect free of cost.  But Opposite Party No.2 totally refused to rectify the set.  That the defective set which has handed to Opposite Party No.2 for rectify the defect is still in the custody of the Opposite Party No.2 and not returned back to the complainant. After refusing to rectify the defect found in the set by the Opposite Party No.2 the complainant got issued a registered legal notice to the opposite parties calling upon the opposite parties jointly to set right the defect or replace the mobile set but Opposite Parties are not turned up hence the above complainant filed under section 12 of the C.P Act 1986 (here in after referred to as the Act) seeking direction from this Forum to give direction to the opposite parties to pay a sum of Rs. 12,001/ of mobile set and also pay a sum of Rs. 25,000/ towards compensation  mental agony  stress undergone by the complainant along with 18% from the date of the complaint and  cost of the proceedings.

3. Version Notice served to the opposite party by RPAD, inspite of serving notice to the opposite parties.  Opposite party No. 1 not appeared hence placed expate. Opposite party No. 2 and 3 appeared through their counsel and filed version stating that the opposite party No.1 and 2 are the Authorized dealer and the Authorized Service Centre of the Opposite Party No.3 therefore, the present reply is being filed on behalf of the Opposite Party No.1 to 3. That in the present case the complainant has purchased XPERIA M C2004 phone, having IMEI No. 352709061780722 on 19.01.2014.  However, it is reiterated that the complainant approached the authorized service Centre of the Opposite Party No.3 for the first time on 13.10.2014 after using the said handset for 9 months with an issue of Camera button loose in the said handset the service Engineer of Opposite Party No.3, immediately fixed the problem by replacing the camera key vide job sheet No. W114101301344 and the mobile phone were delivered back to the complainant to his full satisfaction.  That the complainant again approached on 22.07.2015 the service Engineer of answering Opposite Parties with an issue of power button problem and automatically switch on the said handset.  However, on examination by the service engineer the answering Opposite Parties vide job sheet No. W115072201665 it was found that the mobile has been misuse or mishandling by the complainant own and there were clear sign of external damage due to water ingression as the litmus paper turned red for which only the complainant was liable.  It was communicated to the complainant that evidently this is a case of physical damage caused due to liquid ingression and hence warranty is rendered void and the answering Opposite Parties are willing to repair the set but the same would be done on payment of charges.  The estimate for repair for Rs. 6709/ was also handed over to the complainant.  But the complainant rejected the offer of the answering Opposite Parties and was adamant for free repair.  Thus, it is apparent that there is no lack or deficiency in service by or ends of the answering Opposite Parties and the complainant has made a case which is completely false and frivolous in nature, hence prays for dismissal.
4. In support of the complainant One Mr. Lokesh M.J, (CW1) complainant No.1 filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him and produced the document got marked as Ex C1 to C5.  On behalf of the opposite parties not lead any evidence hence treated nil.

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 sony Xperia M dual sim C2004 mobile set from the 19-01-2014 opposite party 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) to (iii): As per Affirmative

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

REASONS

5. POINTS No. (i) to (iv):  The complainant in order to substantiate the averments made in the complaint filed affidavit supported by documents i.e. Ex C1 to C5.  The Ex C1 is the original tax invoice dated 07-12-2015 which shows that the complainant paid Rs. 12,001 /- for purchase of handset.  The Ex C2 is the job sheet.  Ex C3 to 5 legal notice, along with postal acknowledgment 2 in numbers and reply issued by Opposite Party No.3. On perusal of the documents it is revealed that the complainant purchased mobile hand set developed with some problem in the power button.  The power button automatically switching on.  Therefore, the complainant took the mobile set to the dealer opposite party No.1 and explained the problem.  In order to repair the defect the complainant require to pay Rs. 6,000/, from the above documentary evidence placed by the complainant which is proved that hand set is not working condition and the same has some defect within the warranty period which shows that the opposite parties failed to maintain the quality or standard which is required to be maintained.  Therefore the opposite parties liable to refund the entire amount instead of replacing the hand set because the service rendered by the opposite parties not up to the standard, hence refund of amount meets the ends of justice in this case.Generally if the mobile hand set has manufacturing defect is to be borne by manufacturer that would not mean that the dealer is absolved from joint and several liabilities.  As we know, the manufacturer not deal with the customer directly.  Dealer having received the amount undertaken free service and rectify the 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, 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 the claim reimbursement from the manufacturer.  Therefore all the opposite parties are jointly and severally liable for the defects found in the mobile hand set in this case. In view of the above said reasons we hold that the opposite party No.1 to 3 are jointly and severally shall refund the cost of the mobile set of Rs. 12,001/ and also pay Rs. 10,000/ as compensation to the complainant for the inconvenience and harassment caused.  Further pay Rs. 5,000/ as litigation expenses, payment shall be made within 30 days from the date of receipt of this order.    

 In the result, accordingly we pass the following Order:

ORDER

          The complaint is allowed.  The opposite parties jointly and severally shall refund of Rs. 12,001/(Rupees Twelve thousand one only) and also pay Rs. 10,000/ (Rupees ten thousand only) as compensation and Rs. 5,000/ (Rupees five thousand only) as cost of the 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 with in the stipulated time, the opposite parties 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 forwarded to the parties and therefore the file shall be consigned to record room.

(1 to 9 pages dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 10^th of November 2016)

              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:Mr.Lokesh M.J.

Documents marked on behalf of the Complainant:

Ex.C1: Dated: 19.06.2014   Original Invoice.

Ex.C2: Dated: 22.07.2015   Job Sheet issued by the Opposite Party No.2.

Ex.C3: Dated: 14.08.2015   Office copy of the legal notice.

Ex.C4:                               Acknowledgment (two in number).

Ex.C5: Dated: 09.09.2015    Reply issued by the Opposite Party No.3.

Witnesses examined on behalf of the Opposite Parties:

Nil

Documents marked on behalf of the Opposite Parties:   

Nil

Dated: 10.11.2016.                                               MEMBER