BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, ADDITIONAL BENCH, MANGALORE
Dated this the 6th December 2016
PRESENT
SRI. VISHWESHWARA BHAT D : HONBLE PRESIDENT
SRI. T.C. RAJASHEKAR : HONBLE MEMBER
ORDER IN
C.C.No.172/2013
(Admitted on 18.06.2013)
Mr. Kumar S Paisari,
S/o Late N. Ganapathi Baht,
Aged 47 years,
Residing at Subhadra,
Baradka, Badiadka,
P.O. Peradala, Kasargod Dist.
…............. COMPLAINANT
(Advocate for the Complainant: Sri KN)
VERSUS
1. M/s Samsung India Electronics Pvt. Ltd.,
A.25, Ground Floor, Front Tower,
Mohan Co-operative Industrial Estate,
New Delhi 110044.
Represented by its Authorised Signatory.
2. M/s United Telecommunications,
Exclusive Mobile Shoppe,
SAMSUNG Mobile Privileged Partner,
No.14.3.171/3, Little Flower Building,
Balmatta Road, Mangalore 575001.
Represented by its Managing Partner.
3. M/s Prabhath Infocm,
SAMSUNG Authorised Service Center,
B.3, Divya Enclave, Jail Road,
Kodialbail, Mangalore 575003,
Represented by its Proprietor
......OPPOSITE PARTIES
(Advocate for the Opposite Part No.1: Sri. JNK)
(Advocate for the Opposite Part No.2: Sri. DJK)
(Opposite Part No.3: Ex parte)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI. VISHWESHWARA BHAT D:
I. 1. The above complaint filed under Section 12 of the Consumer Protection Act alleging deficiency in service against claiming certain reliefs.
The brief facts of the case are as under:
The admitted facts are that the complainant purchased a Samsung Galaxy S mobile hand set from opposite party No.2 and as within 3 days it started giving trouble and approached opposite party No.2 and on following the advised of opposite party No.2 it started functioning.
2. Complainant further contends there was repeated problem with the hand set and he handed over the hand set with opposite party No.2 on 21.11.2012 who informed to complainant after a week. He was also informed that there is problem in the mother board and promised by opposite party to replace the hand set. It was not done. The defective hand set was not replaced. Alleging deficiency in service seeks to replacement the hand set and also compensation of Rs.50,000/ towards mental agony suffering hardship .
II. Opposite party No.1 contends for the first time complainant approached service centre replaced mother board of the mobile hand set and kept it ready for delivery. Due to excess internet browsing, the mobile software became corrupt and not due to inherent defect in the product. When the personnel of complainant was represented to take the hand set the complainant twisted the facts as suite he is convinced. Contending that the complaint is premature as the complainant as not used and tested the same after service. Seeks dismiss of the complainant.
2. In support of the above complainant Mr. Kumar S Paisari filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents as not marked. No evidence was tendered on behalf of opposite parties.
III. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the other reliefs claimed?
- What order?
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No. (i): Affirmative
Point No. (ii): Affirmative
Point No.(iii): As per the final order.
REASONS
IV. POINTS No. (i): In this case the complainant purchased the product with opposite party No.1 and that it developed problems and that there was necessary replace of the mother board and that the refusal of opposite party is to replace the hand set purchased by the complainant clearly indicates that there is dispute between the complainant the consumer and the opposite party the service provider. Hence we answer Point No.1 in the affirmative.
POINTS No. (ii): On 19.07.2012 the hand set was purchased from opposite party No.2 by complainant for Rs.22,900/ is undisputed. According to complainant on numerous occasion the hand set stopped functioning and was setright and that on the 7.12.2012 is admitted and his evidence from the service request copy issued to complainant on behalf of opposite party No.3 as per the version of complainant he visited the opposite party No.3 on 19.12.2012 to collect the hand set but it was not ready and the defect was not rectified.
2. Even as admitted by opposite party in his written version there was defect in the mother board and it was replaced. But as to the contention raised by opposite party that due to excessive browsing of internet the defected occurred. There is no material placed by opposite party either excessive use of the mobile hand set for internet browsing and there is also no evidence tendered by opposite party that the excessive browsing of internet would lead to a defect in the hand set.
3. It was contended for opposite party that the hand set was got ready and complainant has not collected it.
4. Infact the learned counsel for complainant in the argument notes made a mention of an offer made by behalf of opposite party No.1 to pay Rs.22,900/ the invoice value to the complainant. However it is clear that the offer was not accepted by the complainant as opponents has not agreed to pay compensation.
5. Suffice to mention that there was defect in the mother board and despite the complainant approaching to collect the hand set was not handed to complainant. But claim was made that it was ready within 3 days by the opponents.
6. The learned counsel for opposite parties referred to various reported judgments the first one being Classic Automobiles vs Lila Nand Mishra and Another I (2010) CPJ 235 (NC), Raj Bala vs The Managing Director, Skoda Auto India Pvt., Ltd., and another in Indian petition of 4803/2012. And II (2209) CPJ 98 (NC) in these cases it was held in the absence of expert evidence a conclusion of manufacturing defect cannot be arrived of.
7. However on facts of the present case the mother board required for replacement even according to opposite parties to indicate the excessive internet browsing caused defect in the mother board in the hand set. Hence on facts we are of the view that the complainants succeeded in proving deficiency in service require not only payment of invoice Bill Rs.22,900/ required to opposite party No.1 to pay Rs.22,900/ the invoice bill to complainant with interest 9% per annum from the date of complaint till the date of payment but also a sum of Rs.20,000/ as compensation towards mental agony and suffering and cost of the case fixed at Rs.3,000/. Hence we answer point No.2 in the affirmative.
POINTS No. (iii): Wherefore the following order
ORDER
The complaint is allowed. The opposite party No.1 is directed to pay a sum of Rs.22,900/ (Rupees Twenty Two thousand Nine hundred only) with interest at 9% per annum from date of the complaint till the date of payment. The opposite party No.1 shall also pay Rs.20,000/ (Rupees Twenty thousand only) compensation towards mental agony and suffering and to pay cost of the case fixed at Rs.3,000/ (Rupees Three thousand only). Payment shall pay within 30 days from the date of receipt of copy of this order.
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 6 directly dictated by President to computer system to the Stenographer typed by her, revised and pronounced in the open court on this the 6th December 2016)
MEMBER PRESIDENT
(SRI. T.C. RAJASHEKAR) (SRI. 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. Kumar S Paisari
Documents marked on behalf of the Complainant:
Nil
Witnesses examined on behalf of the Opposite Parties:
Nil
Documents marked on behalf of the Opposite Parties:
Nil
Dated: 6.12.2016 PRESIDENT
