BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 25^th MAY 2017

PRESENT

   SRI VISHWESHWARA BHAT D     : HON’BLE PRESIDENT

   SMT. LAVANYA M. RAI                 : HON’BLE MEMBER

ORDERS IN

C.C.No.55/2015

(Admitted on 31.01.2015)

Mr. Keshav Salian,

S/o Late Damodhar Puthran,

Aged 55 years,

R/at Prathista,

Kabbinahithulu,

Iddya Village, Surathkal,

Mangaluru, D.K.

                                                                                 ….. COMPLAINANT

(Advocate for the Complainant: Sri MRK)

VERSUS

1. Lenova India Pvt. Ltd,

    Fern Icon,

    Level 2, Daddenakund Village,

    Martha Halli, Outering,

    Bangalore.

    Represented by Manager.

2. Reliance Retail Ltd,

    SF16, 27 A, 2^nd Floor, City Centre Mall,

    K.S. Rao Road, Hampankatta,

    Mangalore, Karnataka.

    Represented by Manager.

                                                                    …...........OPPOSITE PARTY

(Advocate for the Opposite Party No.1: Sri VKS)

(Advocate for the Opposite Party No.2: Sri ADR)

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 is a business man and had purchased a Lenova P780 8GB Model Android mobile handset on 16.4.2014 manufactured by opposite party No.1 and opposite party No.2 authorized dealer of mobile handsets.  The claim is from day one there was charging problem in the handset which was reported to the service centre of opposite parties at Mangalore i.e. Infotech Systems, Rectify, Ground Floor, Essel Centre, Kodialbail, Mangalore   as receipt No.1220 dated 25.09.2014.   Opposite parties service centre stated to complainant that he had misused the handset and it cannot be repaired.  Even though the hand set had a warranty period of one year contends that opposite parties have sold a defective hand set.  Hence seeks relief claimed in the compliant for refund of the purchase of the hand set and compensation.

2.   Opposite party No.1 in the version contends opposite party No.2 is a reseller/dealer of opposite party No.1, and the opposite party No.1 the manufacturer/importer.   The relationship is only of providing service in the event of any defects found after the purchase of the product from opposite party No.2. The first complaint came was logged through service centre on 25^th September 2014, 5 months after the date of purchase. Issued a phone being dead and it was deliver to complainant in good faith of conduct at the time of the purchase.  The authorised engineer of opposite party No.1 found the charging pins were broken and identified as CID as customer induced damage is not covered under the warranty.  First complaint received on 25^th September 2014 and the allegation that there was charging problem from the day of purchase is false as complaint was filed after the 5 months of the purchase. It shows complainant had mishandled the smart phone.  Complaints was informed by the authorized service centre of opposite party No.1 on 25.9.14 itself that the reason for not charging was charger pin broken and identified as customer induced damage. It occur only due to mishandling and it does not comes under the exclusion of the warranty.  The complainant is not a consumer as the smart phone having been purchased for business/commercial purpose the complaint is not maintainable.  Hence seeks dismissal of the complaint.

3.     In support of the above complaint Mr. Keshav Salian filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked at Ex.C1 to C3 as detailed in the annexure here below.   On behalf of the opposite parties Mr. Alex Chandy (RW1) Deputy General Manager-Legal and Authorised Representative of opposite party No.1, also filed affidavit evidence and answered to the interrogatories served on him and produced documents got marked at Ex.R1 to Ex.R3.  Mr. Ritesh Alimar (RW2) Store Manager, also filed affidavit evidence and not answered to the interrogatories served on him.    

4.     In view of the above said facts, the points for consideration in the case are:

1. Whether the Complainant is a consumer and the dispute between the parties?
2.  If so, whether the Complainant is entitled for any of the reliefs claimed?
3. What order?

     The learned counsels for both sides filed notes of arguments.  We have considered entire case filed on record including evidence tendered by parties.   Our findings on the points are as under follows:

                        Point No. (i) : Affirmative

                       Point No. (ii) : Affirmative

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

REASONS

5.        POINTS No. (i):     The term word consumer is defined in C P Act 1986 under section 2(1)(d) with explanation which read:

d) Consumer means any person who

(i) Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) (hires or avails of) any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who (hires or avails of)  the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose);

(Explanation: For the purposes of this clause, commercial purpose does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self employment;)

6.     Thus ongoing through the above provisions from the highlighted portions and allegation in the complaint at para 4 (c) wherein complainant asserted to us plus loss of business due to inability to communicate despite of purchasing a mobile for complainants business and personal use .

7.     To this highlighted portion it was argued that the mobile was purchased and used by complainant for business purpose. However the complainant did not make any assertion he purchased a mobile for exclusively for business purpose and he also alleged for his personal use.  The subject namely the mobile purchased by complainant cannot be construed as used only for business and also in view of the use of the words personal use in the complaint hence the contention on this count by opposite party is declined.

8.     The complainant having purchased the mobile from opposite party having not disputed, there is relationship of consumer and service provider between the parties.  There was complaint made with the authorized service centre of opposite party No.1 which declined to effect under the terms of the warranty even though it was within period of one year from the date of purchase. The ground urged for opposite party is it was due to CID hence they are not responsible.  Hence there is dispute between the parties as contemplated under section 2 (1) (e) of the C P Act.  Hence we answer point No.1 in the affirmative.

 9.       Points No. (ii): The damage to the handset occurred after a period of almost 5 months from the date of purchase. The purchase of hand set was on 16.4.2014 and the first complaint with opposite party i.e. Infotech Systems service centre on 25.09.2014 as per Ex.C2.  Ex.C3 is the notice issued by complainant to opposite party No.1.  As seen from the Ex.C2 the problem reporting shows as dead and physical condition mentioned as scratches.  In the column pertaining to engineer’s remarks the entire column is kept blank.  With not finding any nature of observation made by the engineer of Infotech Systems either on 25.09.14 or subsequent there to.

10.     In affidavit filed by one Mr. Alex Chandy, Deputy General Manager Legal and Authorised Representative of opposite party No.1 mentions the authorised engineers duly attend to the complaint and checked the phone and found the charging pin broken and CID as which is not covered under the warranty and points to Ex.R2 is snap shot of the charging pin which they claim as damaged.  As seen from Ex.R2 which as marked at exhibit.B we find the charging pin is damaged.  But however we are unable to understand why if really there was any such damage to the hand set purchased by complainant was observed when complainant handed over it for repairs on 25.9.14 itself, there is also no reasons assigned from the engineer though signed at Ex.C2 not making any remarks in engineers remarks column of Ex.C2.  Hence we are not able to accept the case of opposite party that the alleged damage to the mobile hand set of complaint on 25.9.14 was CID Customer induced damage.  When once opposite party failed to establish in view of the absence of remark at Ex.C2 there being no other explanation by opposite party for the mobile hand set not functioning, we are of the view there is deficiency in service by concluding that it was due to manufacturing defect.  Hence we answer point No.2 in the affirmative.

11.     POINTS No. (iii):     The complainant had paid Rs.16,659 for the purchase of the hand set as seen from Ex.C1 and he used it for 5 months.  In the circumstance it is a fit case to opposite parties to refund the cost of the hand set to complainant of Rs.16,659 and

also directed to opposite parties to pay Rs.10,000 towards compensation and cost of the case.  Wherefore the following

ORDER

     The complaint is allowed.  Opposite parties are directed to pay a sum of Rs.16,659/ (Rupees Sixteen thousand Six hundred Fifty Nine only)  to the complainant.

2.     Opposite parties are also directed to pay a sum of Rs.10,000/ (Rupees Ten thousand only) as compensation to the complainant.

3.     The above amounts shall be paid within 30 days.  If the amount is not paid to the complainant with in the stipulated period opposite parties shall pay interest at 9% per annum on the entire amount to the complainant from the date of complaint till date of payment.

     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 9 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 25^th May 2017)

              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. Keshav Salian

Documents marked on behalf of the Complainant:

Ex.C1: Original receipt for purchase of LENOVA P780 8GB Model Android mobile handset

Ex.C2: Acknowledgment by the repairer

Ex.C3: Notice issued by the complainant with acknowledgement

Witnesses examined on behalf of the Opposite Parties:

RW1 Mr. Alex Chandy, Deputy General Manager Legal and Authorised Representative of opposite party No.1

RW2  Mr. Ritesh Alimar, Store Manager

Documents marked on behalf of the Opposite Parties:

Ex.R1: Notarized copy of the Board Resolution Exhibit A

Ex.R2: Notarized copy of the snap shot of Exhibit B

Ex.R3: Notarized copy of the Lenovo Limited Warranty Exhibit C

Dated: 25.5.2017                                          PRESIDENT