BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 31st August2016
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : HON’BLE MEMBER
COMPLAINT NO.270/2014
(Admitted on 28.07.2014)
N.M. Shifan,
S/o N.M. Shali,
Aged about 20 years,
R/at Uppinangady,
Hirebandady,
PutturTq, D.K.
…….. COMPLAINANT
(Advocate for Complainant: Sri Sanjay. D.)
VERSUS
1. Managing Director,
LAVA International Ltd,
A 56, Sector 64, Nodia 201301,
U.P. India.
2. Proprietor,
Mobile Care,
SusheelLaxman Building,
Near Shenoy Hospital,
Uppinangady, D.K.
3. Proprietor,
Alder Glare Trade Export,
No.105, 1st Floor, Vasanth Chamber,
Besent College Cross Road,
Mangalore.
……OPPOSITE PARTIES
(Opposite PartiesNo.1& No.3 Ex Parte)
(Advocate for Opposite Party No.2 Sri.ShreedharaK)
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. ASHA SHETTY
- 1. This complaint is filed under section 12 of the Consumer Protection Act alleging defect in hand set as against the opposite parties claiming certain reliefs.
The brief facts of the case are as under:
The complainant purchased mobile phone i.e. the XOLO A500S for Rs.7,199 from Opposite Party No.2 on 07.04.2014. It is stated that within one week of the purchase the above phone started to mal function and the complaints were that the ring tone was so low and the caller s voice was also very low and some time the phone gets switched off automatically. Immediately the complainant reported the said defect to Opposite Party No.3. The Opposite Party No.3 made some temporary repair and returned to the complainant without giving receipt. But the above said mobile phone again one week had the same problem and Opposite Party No.3 failed to rectify the defect. It is stated that the opposite parties 2 & 3 have not responded properly to the complainant. Thereafter the complainant issued a notice and finally the Opposite Parties returned the defective handset to the complainant. It is stated that the defect in the handset are not rectified by the Opposite Parties and the handset produced along with this complaint. It is contended that the handset has manufacturing defect and hence the above complaint filed under the section 12 of the Consumer Protection Act 1986 seeking direction from this Hon ble FORA to give direction to the Opposite Party parties to refund the cost of the hand set and also pay compensation and cost of the proceedings.
II. 1. Version notice served to the opposite parties No. 1 to 3 by R.P.A.D.
Inspite of receiving version notice the OppositeParties No.1 & No.3 neither appeared nor contested the case before this FORA. Hence we have proceeded ex parte as against the opposite parties No. 1 & 3. Version of Opposite Party No.2 not filed hence treated nil.
III. 1. In support of the complaint, Mr. N.M. Shifan (CW1) the Complainant filed affidavit reiterating what has been stated in the complaint and produced Ex. C1 to C5. Defective hand set marked as M.O.No.1. TheOpposite Parties No.1 & 3 placed Ex parte.
4. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the complainant proves that the XOLO A500S mobilehand set purchased on 07.04.2014 from the Opposite Parties found to be defective?
- Whether the complainant proves that the opposite parties have committed deficiency in service?
- If so, whether the complainant is entitled for the reliefs claimed?
- 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 (ii): Affirmative
Point No. (iii) and (iv): As per the final order.
REASONS
IV. 1. 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 C 1 to C 5.The Ex C 1 is the Original Tax Invoice dated 7.04.2014 which shows that the complainant paid Rs.7,199/ for purchase of handset on 07.04.2014. The Ex C 2 is the Warranty card. Ex. C 3, C 4, C 5 lawyer s legal notice along with postal acknowledgment and receipt.
From the above documents it is revealed that the new hand set purchased by the complainant is not working and the defective hand set produced before this FORA along with the complaint that has been marked as M.O. No.1.
Further we noted that the opposite parties inspite of receiving version notice neither appeared nor contested the case till this date. The entire evidence placed by the complainant not contradicted nor controverted by the Opposite parties, which requires no further proof.
From the material evidence placed by the complaint it is proved that hand set is not working and the same has some defect within the warranty period which shows the opposite parties failed to maintainthe 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 handset has manufacturing defect is to be borne by the manufacturer. That would not mean that, the dealer is absolved from joint and several liabilities. As we know, the manufacturer not deals with the customers directly. Dealer having received the amount, undertaken free service and rectify defect during the warranty do not escape liability towards the manufacturing defect found in the mobile handset. 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 to claim reimbursement from the manufacturer. Therefore, the dealer and the manufacturer both are jointly and severally liable for the defects found in the mobile hand set in this case.
In view of the aforesaid reasons, we hold that, the Opposite Parties No.1 to 3 jointly and severally shall refund the cost of the mobile handset Rs. 7,199/ by taking back the defective handset i.e. M.O No.1 and also pay of Rs. 10,000/ as damages to the complainant for the inconvenience and harassment caused. Further pay Rs. 3,000/ as litigation expenses. Payment shall be made within 30 days from the date of receipt of this order.
6. In the result, we pass the following:
ORDER
The complaint is allowed. The opposite parties jointly and severally refund Rs.7,199/ (Rupees Seven thousand One hundred and Ninety Nine only) by taking back the defective handset and also pay Rs. 10,000/ (Rupees Ten thousand only) as compensation and Rs.3,000/ (Rupees Three thousand only) as cost of the litigationexpenses.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 within 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 forward to the parties and file shall be consigned to record room.
(Dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 31st day of August 2016)
PRESIDENT MEMBER
(SMT. ASHA SHETTY) (SMT. LAVANYA M.RAI)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW 1: Mr. N.M. Shifan.
Documents Marked on behalf of the Complainant:
Ex.C1:07.04.2014 Original Tax Invoice
Ex.C2: 07.04.2014 Original Warranty Card
Ex.C3: 23.05.2014 O/c of the regd. lawyer s notice
Ex.C4: 23.05.2014 Postal Receipt of 1st Opposite Party
Ex.C5: 24.05.2014 Postal acknowledgement of 2nd and 3rd Opposite parties.
Material object produced by the Complainant:
M.O.No.1 Defective hand set
Witnesses examined on behalf of the Opposite Parties:
Nil
Documents produced on behalf of the Opposite Parties:
Nil
Dated:31.08.2016. PRESIDENT
