BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 27th February 2017
PRESENT
SRI. VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SRI. T.C. RAJASHEKAR : MEMBER
ORDER IN
C.C.No.40/2013
(Admitted on 02.02.2013)
Mr. Durgaprasad K,
S/o Balakrishna Gowda K,
Age of 23 years,
Alake Bridge, Near Devaki Sadan,
Mangalore.
….. COMPLAINANT
(Advocate for the Complainant: Sri. DS)
VERSUS
- Authorised Signatory, M/s. TATA Mobiles,
Ganesh Mahal Building, K.S.Rao Road, Mangalore.
- Authorised Signatory,
Prabhat Info Com, Samasung,
Authorised Service Centre, Shop No.G.9,
Divya Enclave, Jail Road, Mangalore.
- Authorised Signatory,
Samsung India, Electronic Pvt. Ltd,
A 25, Ground floor, Front Tower,
Mohan Co.operative Indl. Estate,
New Delhi.110044, India.
OPPOSITE PARTIES
(Opposite Party No.1 and 2: Ex parte)
(Advocate for the Opposite Party No.3: Sri. JNK)
ORDER DELIVERED BY HON’BLE MEMBER
T.C. RAJASHEKAR:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming, the Opposite Parties to refund Rs.15,500/ along with 10% interest from the date of purchase till the final adjudication, to pay a sum of Rs.25,000/ towards the solatium to the complainant for mental harassment, to pay sum of Rs.7,000/ towards the cost of proceedings.
2. In support of the above complaint the complainant Mr. Durgaprasad K, filed affidavit evidence as (CW1) and answered the interrogatories served on him and produced documents not marked. On behalf of the opposite parties Mr. Sudheer P Nair, (RW1) Senior Manager-Commercial, also filed affidavit evidence and not replied to the interrogatories served on him.
The brief facts of the case are as under:
We have perused the complaint and the version of the parties. The dispute is with regard to defect in the mobile purchased. According to complainant he had purchased a mobile handset from the opposite party and after seven months there is problem of heating and the opposite party service center repaired it and delivered on 21.12.2012, but again in the month of Jan 2013 the same problem recurred. Hence the complainant alleges the deficiency in service on the part of the opposite parties. The opposite party no 1 and opposite party no 2 not participated. The opposite party no 3 contested on the ground that the reported problem to the service center in Network problem but not heating problem, and the opposite party no 2 has repaired and delivered to the satisfaction of the complainant. Hence forth no complainant received from the complainant. Hence there is no deficiency in service from their part. These are being the facts of dispute in resolving this dispute we consider the following
POINTS FOR ADJUDICATION
On considering the evidence of the parties and based on documents produced, the admitted facts are, the purchase of the mobile from the opposite party and giving the mobile set for repair with the opposite party no 2 and the opposite party repaired and handed over the mobile set after servicing on 21.12.2012. It is denied by the complainant that the mobile serviced properly and delivered defect less. It is denied by the opposite party that there is defect still in the mobile set and deficiency in service on their part. Admissions and denials reconciled and considered the following points for adjudications.
- Whether the complainant is a consumer as per Consumer Protection Act 1986?
- Whether the deficiency in service proved against the opposite party by the complainant?
- Whether the complainant is entitled for the relief prayed for?
- What order?
We have examined the evidence produced and the documents produced are considered. The opposite party not replied the interrogatories served by the complainant. We have traversed through the notes filed and the citations produced. Heard the rival submissions and adjudicated the points and answered as under:
- In the affirmative.
- In the negative.
- In the negative.
- As per delivered order.
REASON
POINT NO 1: The complainant produced the tax invoice No 00199 dated 17.05.2012 having purchased the mobile set and also Job cord Order No. 4047 which established the relation of consumer and the service provider between the complainant and the Opposite parties. Hence we answered the point no 1 in the affirmative.
POINT NO 2 & 3: The complainant in his affidavit states that, after using for nearly 7 months the mobile starting giving heating trouble. First complained to opposite party no 1 and directed by the opposite party no 1 the complainant approached opposite party no 2 and expatiated the opposite party no 2 about the problem on 14.12.2012. Complainant continue to state that the opposite party no 2 described the problem as network problem as stated in job card Annexure 3 and 4 and that, more so subsequent to effecting necessary repair by the opposite party no 2 on 21.12.2012 as per Annexure 4, the problem again cropped up in the month of January 2013. Hence complainant states he came to conclusion that the mobile set is innately defective.
2. It is true the complainant had produced Annexure No 3 dated 14.12.2012 and 4 dated 21.12.2012 the job card and the service request respectively which established the problem in the mobile hand set. But as per complainant admissions the opposite party no 2 has effected necessary repair and as per Annexure 4 the complainant is satisfied with the repair done by the opposite party no 2 which is as per warranty card (produced by the complainant) given under condition No 8. The condition says The company obligation under this warranty shall be limited to repair or providing replacement of part/s only in bold letters. The warranty does not speak about the replacement of the product. The point raised as defense by the Opposite party no 3 is that the complainant complained about the network problem as per Job card dated 14.12.2012 and the opposite party no 2 is not responsible for the network problem. We are not inclined to accept the defense as we know the defect in the mobile set may also result in network problem due to poor receiving the signals. The complainant also contended the same in assailing the defense.
3. However we noticed in the complaint that, the complainant had come to conclusion that the mobile set is defective as he experiencing the same problem cropped up again, but neither given it to opposite parties for confirming the repeated defect nor get it certified by expert about the defect persisted in the mobile set. We cannot come to conclusion that the mobile set is defective only on the assertion of the complainant without corroboration. There is no cogent evidence to show that the mobile set again become defective in the month of Jan,2013 after effecting necessary repair to the satisfaction of the complainant on 21.12.2012 and annexure 4 signed by the complainant. Hence we are of the opinion that the complainant not proved that the mobile has become defective again or the opposite party as per warranty liable to replace/refund, and in effect the deficiency in service on the part of the Opposite parties. The opposite party no 3 produced the citation of Honorable National Commission in Revision Petition No 3973 of 2012 which we rely on point that the complainant has to prove his case. It is held by Honorable National Commission that the report of an expert was essential or some other evidence essential showing manufacturing defect and in Revision Petition No 4803 of 2012 it is held relying on its own decision in IV (2009) CPJ 144 NC. That, the consumer cannot throw their weight and be adamant to decide on their own that there is manufacturing defect in the vehicle without any supporting evidence of justification. So relying on the above decisions we hold the complainant not proved the manufacturing defect in the mobile set. So in result we answered the point no 2 in the negative and so also the point no 3 in the negative.
POINT NO 4: In the light of above discussion and adjudication of the above points we deliver the following
ORDER
The complaint is dismissed. No order as to cost.
Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.
(Page No.1 to 7 directly typed by Member, revised and pronounced in the open court on this the 27th February 2017)
MEMBER PRESIDENT
(T.C. RAJASHEKR) (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. Durgaprasad K.
Documents marked on behalf of the Complainant:
Nil
Witnesses examined on behalf of the Opposite Parties:
RW1: Sudheer P Nair.
Documents marked on behalf of the Opposite Parties:
Nil
Dated: 27.02.2017 MEMBER
