BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 14th November 2016
PRESENT
SMT. C.V. SHOBHA : HONBLE PRESIDENT
SMT.LAVANYA M. RAI : HONBLE MEMBER
COMPLAINT NO.148/2015
(Admitted on 24.04.2015)
Rohit Raj,
S/o A. Chaudhary,
Shakthi Apartment, First Floor, Flat No.01,
Near Manjunath Eye Hospital,
Bannanje, Udupi 576101,
Karnatak State.
……… Complainant
(Advocate for Complainant by Sri. PRB)
VERSUS
- M/s Lenovo PC HK Limited,
Head Office: 23/F, Lincoln House,
Taikoo Place, 979, Kings Road,
Quarry Bay, Hong Kong,
Rep. by its Managing Director.
- M/s Lenovo (India) Pvt. Ltd,
Ferns Icon, Level 2,
Doddenakundi village,
Marathahalli Outer Ring Road,
K.R.Puram Hobli,
Bangalore 560037
Rep. by its Managing Director.
- M/s Infotech Systems,
Authorised Agent of M/s Lenovo,
PC HK Limited, Ground Floor, Essel Centre,
Next to Hotel Deepa Comforts, Kodialbail,
Mangalore 575003, D.K.District,
Rep. by its Proprietor.
…. Opposite Parties
(Opposite Party 1 and 3: Exparte)
(Advocate for the Opposite Party No.2: VKS)
ORDER DELIVERED BY HON’BLE MEMBER
SMT. LAVANYA M. RAI
- 1. This complaint is filed under section 12 of the Consumer Protection Act alleging defective handset as against the opposite party claiming certain reliefs.
- The brief facts of the case are as under:
The complainant had purchased a mobile of Lenovo P780 Model having IMEI1 865229024494980 and IMEI2 865229024494998 through snapdeal.com dated 28.02.2014 for which a sum of Rs. 16,320/ was paid by him in cash on 01.03.2014. Within a period of 4 to 5 months of the date of purchase of the Mobile in question and within the warranty period of one year the complainant noticed that the Camera of the Mobile had inherent manufacturing defect and dust is being formed inside the camera. That the complainant contacted Opposite party No.3 at Mangalore and in spite of the repair work done by opposite party No.3, after 2 to 3 days of the repair, the problem of Camera of the Mobile continued and accordingly, on 01.12.2014 the complainant contacted opposite party No.3 once again after repairing the Mobile, Opposite party No.3 issued their service Bill No.395 dated 01.12.2014 for Rs. 450/ to the complainant and the collection of Rs. 450/ in cash by opposite party No.3 from the complainant is against the very provisions of the warranty issued by the opposite party company. That the camera of the Mobile could not be set right in spite of the repair made by opposite party No.3. Complainant approached opposite party No. 3 once again for the repair of the said Mobile for which opposite party No.3 once again collected Rs. 350/ in cash from the complainant towards repair and service charge as per service bill No.343 dated 07.01.2015 for Rs. 350/ raised by opposite party No.3 and the collection of Rs. 350/made from the complainant is also against the very provisions of the warranty issued by the opposite party company even after the repair of the mobile in question by opposite party No.3 on 07.01.2015, the manufacturing defect in the Camera of the Mobile still continued and the complainant visited opposite party No.3 on 04.02.2015 and after his specific request, opposite party No.3 issued Lenovo Service Record (Job Sheet) dated 04.02.2015 in which the description of the problem in the Mobile has been indicated as Camera Problem. Aggrieved by the non co operative attitude on the part of the opposite parties to repair the Mobile set in question, the complainant got issued legal notice dated 26.02.2015 to all the opposite parties calling upon them to refund the amount but opposite parties are not responded. Hence the above complaint 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. 17,120/ i.e. Rs. 16,320/ being the cost of the Mobile set by taking back the said Mobile set and repairing charges of Rs. 450/ and Rs. 350/ unlawfully collected by opposite party No.3 with interest at 15% p.a. on Rs. 17,120/ from 01.12.2014 onwards along with a compensation of Rs. 15,000/ for the mental agony Stress and untold sufferings undergone by the complainant and also cost of the proceedings.
- Version Notice served to the opposite party by RPAD inspite of receiving notice to opposite party No.1 and 3 neither appeared nor represented the case hence placed exparte opposite party No.2 filed version stating that there is no deficiency in services or unfair trade practice on part of the opposite parties. The opposite parties duly honored the request of the complainant to clean the dust in the camera and have charged nominal amount for the same which is not covered under the warranty terms. If the complainant resides/ uses the mobile phone in polluted area, naturally dust is formed and the complainant cannot blame/make the answering opposite party liable for his own wrong doings/environmental pollution. Further, as and when the complainant approaches the authorized service provider of the answering opposite party, the said mobile phone was cleaned i.e removed the dust in the camera which is not covered under warranty terms. There is not deficiency in services on part of the answering opposite party and the mobile phone has no manufacturing defect.
It is pertinent to mention that as per the terms of warranty terms, in the first instance, the mobile is only to be repaired. It is only when repair is not possible that the same may be replaced with one that is at least functionally equivalent. In the present case, the service Centre has not detected any defect/issue in the mobile phone in question and have cleaned the camera which is found dusty. Therefore the complainant still demanding a new mobile or refund shows that the complainant wants to harass and make an illegal gain at the cost of opposite parties. That no proof or expert evidence regarding the defect in the subject mobile phone has been filed by the complainant to prove existence of any manufacturing defect which is mandatory requirement under the law as such, in absence of the report of expert, the allegations leveled by the complainant are without basis and the complaint ought to be dismissed on this ground alone. There is no manufacturing defect to the mobile phone and the present complaint is not maintainable.
It is submitted that the above complaint is not all maintainable as no cause of action accrued and this Forum is not vested with the Territorial Jurisdiction to grant any relief that the complainant has sought and on this basis alone the complaint is liable to dismissed. The complaint are denied that within 4 to 5 months of purchase of the mobile phone, the camera of the phone had inherent manufacturing defect and dust being formed inside the camera. It is stated that as per the records of the answering opposite party, the complainant had approached the authorized service Centre of the answering opposite party on 01.12.2014 i.e. after nine (9) months from the date of purchase as there was dust in the camera and not for any other defect /issue in the mobile phone in question of the complainant and not after 4-5 months as stated by the complainant. It is pertinent to mention that the authorized service engineer had found that the mobile phone in good working condition and have cleaned the dust in the camera which is not covered under warranty.
In support of the complainant One Sri. Rohit Raj (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 C10. One Mr. Alex Chandy (RW1) Deputy General Manager of opposite party filed counter affidavit and answered the interrogatories and produced the document marked Ex R1 to R2.
- 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 Lenovo P780 Mobile hand set purchased on 28.02.2014 from the opposite party found to be defective?
- Whether the complainant proves that there is a deficiency of service on the part of the opposite parties?
- If so, for what relief and from whom the complainant entitled?
- 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
V. POINTS No. (i) to (iii):The complainant in order to substantiate the averments made in the complainant filed affidavit supported by the documents i.e. Ex C1 to C10. The Ex C1 is the copy of the details as to the payment of Rs. 16,320/ made online by the complainant on 01.03.2014. Ex C2 warranty card, Ex C 3 and 4 service bill Ex C5 Lenovo Service Record, Ex C6 legal notice Ex C7 to 9 acknowledgments and Ex C10 is the interim reply.
From the above documents which is revealed that the new hand set purchased by the complainant is not working and the defective hand set produced before this Forum along with the complaint that has been marked as M.O.1.
Further we noticed that the opposite party No. 1 and 3 inspite of receiving version notice neither appeared nor contested the case till this date. Opposite party No.2 filed version, stating that the authorized service engineer had found that the mobile phone was in good working condition and upon the instruction of complainant not cleaned the dust formed in mobile camera lens is not covered under warranty. The dust being formed inside the camera is due to the location/use of the mobile phone and there is no manufacturing defect if that being so, the opposite party not examined any exparte to give evidence or any documents to prove that there is not manufacturing defect. From the material evidence placed by the complainant. It is proved that mobile hand set is not working and the some has same defect within 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 slandered hence refund of amount meets the hence 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, private 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.3 office is situated within the jurisdiction of this Forum and the cause of action arose within the jurisdiction of this Forum hence the above the above contention does not arise.
In view of the above said reasons the hold that the opposite party No.1 to 3 are jointly and severally shall refund the cost of the mobile set of Rs. 16,320/ by taking back of the defective hand set i.e. M.O. 1 and also refund of repairing charges as per Ex 3, 4 and 5, further 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.
iv. 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 cost of the mobile set of Rs. 16,320/ (Rupees sixteen thousand three hundred twenty only) by taking back of the defective hand set and also refund of repairing charges. Further Rs. 10,000/ (Rupees ten thousand only) as damages to the complainant and also 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 9 pages dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 14th 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:
CW 1:Mr.Rohit Raj,
Documents marked on behalf of the Complainant:
Ex.C1: Dated: 01.03.2014 Photo copy of the details as to the payment of Rs. 16,320/ made online by the complainant.
Ex.C2: Photo copy of the Lenovo Limited Warranty Card.
Ex.C3: Dated: 01.12.2014 Photo copy of the Service Bill No.395 for Rs. 450/ issued by opposite party No.3.
Ex.C4: Dated: 07.01.2015 Photo copy of the service Bill No.343 for Rs. 350/ issued by opposite party No.3.
Ex.C5: Dated: 04.02.2015 Photo copy of the Lenovo Service Record.
Ex.C6: Dated: 26.02.2015 Office copy of the legal Notice.
Ex.C7: Original Postal Acknowledgment cards received from Opposite Party No.1.
Ex.C8: Original Postal Acknowledgment cards received from opposite party No.2.
Ex.C9: Original Postal Acknowledgment cards received from opposite party No.3.
Ex.C10: Dated: 07.03.2015 Original interim reply of the opposite party company.
Witnesses examined on behalf of the Opposite Parties:
RW 1: Mr. Alex Chandy
Documents marked on behalf of the Opposite Parties:
Ex.R1: Certified true copy of the Resolution.
Ex.R2: Lenovo Limited Warranty
Dated: 14.11.2016. MEMBER
