BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 7^th November 2016

PRESENT

        SMT. C.V. SHOBHA             :  HONBLE PRESIDENT

        SMT.LAVANYA M. RAI        :  HONBLE MEMBER                                        

COMPLAINT NO.156/2016

        (Admitted on 23.04.2016)

Mr. Eshwar,

S/o. Raju,

Aged about 28 years,

Residing at Devinagara,

Kunjathbail, Kavoor,

Mangaluru.

                                                                ……… Complainant

(Advocate for Complainant by Sri. MNA)         

VERSUS

1. Digital Assist,

Reliance Retail Limited,

S.F.16, 27A, 2^nd Floor,

City Centre Mall,

                    Hampankatta

                   Mangalore 575001

Represented by its Authorised Signatory.

2. Jain Marketing and Associates,

D.No.170. Okhla Industrial Area,

Phase I, New Delhi  110020,

Represented by its Authorised Signatory.

3. Panasonic Smart Phones,

Service Center Information,

G4, Meridian Guru Plaza,

Bejai, Mangaluru,

Represented by its Authorised Signatory.
 

                                                       …. Opposite Parties

        (Opposite Party No.1: In person)

        (Opposite Party No.2 and 3: Exparty)

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 PANASONIC ELUGA I Cell phone from opposite party No.1 by paying a sum of Rs. 8,199/ as per invoice No. S#3897 on 07.12.2015.  As per the advice of the opposite parties the complainant paid extra amount of Rs. 543/ for 1 year extended warranty from the date of expiry of original one year warranty period by purchasing ResQ Care plan.  Totally he has paid a sum of Rs. 8,663/ the warranty for a period of 12 months from the date of purchase of the mobile set i.e. 07.12.2015 which is still valid.  The complainant using the mobile very carefully, but the complainant has found many defects in as much as handset gets over heating whether in use or not.  That it gets automatically switched off when he trying to open any applications.  So the complainant handed over the said handset to opposite party No.3 for repair on 20.01.2016.

          The opposite parties failed to rectify the defect till this date and the same is within their custody.  The opposite party No.3 behaved rudely with the complainant.  So fed up with the service provided by opposite party No.3, the complainant had contacted opposite party No.2, where in turn he promised to return the mobile within 3 days or else refund the entire amount to him.  The allegation of the opposite party is that the mobile was repaired, but the complainant not turns to get the mobile back.  No documents or mobile produced before this Forum to show that mobile was repaired nor they intimated the same to the complainant.

          The complainant had purchased the said mobile for his convenience and necessity believing the opposite parties recommendation regarding the excellent performance.  But their assurance now turned out to be false and misleading and their service to the complainant is suffering from deficiency.  Therefore issued legal notice on 26.02.2016.  Calling upon the opposite parties to refund the entire amount but opposite party neither replied nor refund the amount 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 refund a sum of Rs. 8,663 received as per invoice along with 18% from 07.12.2015 interest per annum along with damages and also 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.2 and 3 not appeared hence placed expate. opposite party No.1 appeared personally and  filed version stating that the opposite party is only a retail seller of various products, manufactured by genuine manufactures/ vendors, with proper authentication. The opposite party sells the said products manufactured by many reputed Electronic Companies and firms by strictly complying with all norms and regulations in the said regard by adhering to the provisions thereof.  The opposite party as a seller do not keep any product or material for sale, which are unfit for consumption.  The complainant for his personal purpose purchased PANASONIC ELUGA Mobile phone for an amount  of Rs. 8,199/ for the opposite parties digital show room City Center Mall, Hampankatta, Mangalore, vide invoice# 15/5, 07.12.2015 covered under one year brand warranty for the product.  The complainant also purchased extended warranty Rs. 543/ for a period one year from Reliance Resq Plan at his own interest for safer side of the device. That the opposite party further denied, since the warranty on the product Mobile Phone, initially the BRAND PANASONIC shall provide and the same is valid up to 06.12.2016.  The warranty is meant for against any of the manufacturing defects, technical problems of the device brand Panasonic shall resolve such defects through its authorized service centers during warranty period.  The complainant alleged that the product got overheating problem, automatic switch on and off problem and while approached this opposite party, had advised to contact with the authorized service center.  However, complainant alleged that the service center opposite party No.3 has not responded properly and make the complainant to round several times finally the service center opposite party No.3 has sent the mobile phone to Bangalore for repair/rectification of the defects.  The complainant has not substantiated the material facts like job sheet/ service report etc. of the incidents that whether the mobile deposited with opposite party No.3 or not.  This complaint is not maintainable before this Forum and as such the same is dismissed with exemplary costs.  On enquiry from Service Center, that the complainant intentionally rejected to collect the mobile, when it was 100% rectified and in good working condition as confirmed by the service center.  The complainant with an ulterior motive to get a new mobile, filed complaint before this Forum.  The complainant himself accepted during the Brand warranty that the device is authorized to rectify the defects by the service Center only and accordingly deposited with Service Center i.e. opposite party No.3.  It construed that there was no deficiency of service or ignorance of after sales service either of the opposite parties. Further stated that any electronic product which purchased shall cover 1 year BRAND warranty/ guarantee against any of its manufacturing defect.  Similarly the product of the complainant covered under warranty up to 06.12.2016 and the complainant had all the liberty to use after sale services during warranty period.
4. In support of the complainant One Mr. Eshwar, (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 Panasonic Eluga I Cell phone purchased on 07-12-2015 from the opposite party found to be defective?
2. Whether the complainant proves that  there is a deficiency  of service on the part of the Opposite Parties?
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. 8,199/- for purchase of handset.  The Ex C2 is the job sheet.  Ex C3 to 5 legal notice, along with postal acknowledgment and receipt.On perusal of the documents it is revealed that the complainant purchased mobile hand set gets over heat.  Whether the use or not and it gets automatically switched off when open any application 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 dealer with the customer directly.  Dealer having received the amount under taken 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.  Further regarding jurisdiction opposite party No. 1 and 3 office situated within the jurisdiction of this Forum and the cause of action arose within the jurisdiction of this Forum hence the above contention does not arise.  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. 8,663/ and repairing charges along with Rs. 10,000/ as damages 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 party No.1 to 3 are jointly and severally shall refund the amount of Rs. 8,663/(Rupees eight thousand six hundred sixty three only) along with Rs. 10,000/(Rupees ten thousand only) as damages. Further pay Rs. 5,000/ (Rupees five thousand only) as 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 8 pages dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 7^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.Eshwar

Documents marked on behalf of the Complainant:

Ex.C1: Dated: 07.12.2015   Original Invoice.

Ex.C2: Dated: 29.01.2016   Original Job Sheet.

Ex.C3: Dated: 26.02.2010   Legal Notice.

Ex.C4: Acknowledgment (Opposite Party No. 1 and 3).

Ex.C5: Postal receipt of Opposite Party No.2.

Witnesses examined on behalf of the Opposite Parties:

Nil

Documents marked on behalf of the Opposite Parties:   

Nil

Dated: 07.11.2016.                                               MEMBER