BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 30^{th SEPTEMBER} 2015

PRESENT

        SMT. ASHA SHETTY           :  HON’BLE PRESIDENT

        SMT.LAVANYA M. RAI        :   HON’BLE MEMBER                                        

COMPLAINT NO. 156/2015

      (Admitted on 05.05.2015)

Mr. Seetharam, Aged 41 years,

S/o Late Chandra Poojary

Prakash Sannithi

Kapikad 6^th Cross,

Mangalore-4.                          …….. COMPLAINANT

(Advocate for Complainant: Sri A Nagaraj N.)

 VERSUS

1. North India company (P) Ltd.,

TCI supply chain solutions,

C/o Acorn warehouse and Logistrics Park

68 VIII Kapriwas & Malpura

Rewari, Haryana, India-123106

Represented by its authorized signatory,

2. Homeshop 18, 7^th floor, FC 24

Sector 16A, Filmcity Noida 201301,

Uttarpradesh India Rep.

by its authorized signatory.,

3. Shree Devika Enterprises

Narayana Guru Complex,

Near Infosys, Kottara

Managalore-6 Rep.

by its authorized signatory.      ……OPPOSITE PARTIES

(Opposite Party No. 1 to 3: Ex-parte)

ORDER DELIVERED BY HON’BLE PRESIDENT  

SMT. ASHA SHETTY

1. 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 submits that, Opposite Party No. 1 is the manufacturer, Opposite Party No. 2 is the dealer and Opposite Party No. 3 is the service center. As per the wide advertisement in the electronic media and newspaper published by the Opposite Party No. 1 and 2 regarding the high and sophisticated performance of Zen Mobile U 105 Fire Model Ultrafonc color black worth of Rs. 1,999/- the complainant has ordered to Opposite Party No. 2 among the Opposite Parties and same has been delivered at the residence of complainant in Mangalore on 10.11.2014.

The complainant submits that since day one the said mobile is not working and complaint was registered on 11.11.2014. It is stated that, after receipt of the complaint op No. 2 that, the hand set will be replaced. Thereafter, the opposite parties not rectify nor replace the mobile hand set, hence it is contended that, the hand set sold by the opposite parties is defective.  Therefore, the above complaint filed U/sec 12 of the Consumer Protection Act 1986 (herein after referred to as the act) seeking direction from this Forum to the opposite parties to refund a sum of Rs. 1999/- along with interest at 18% per annum from the date of payment till the realization to the complainant along with compensation and cost of the proceedings.

II.      1. Version notice served to the opposite parties No. 1 to 3 by R.P.A.D, even after receiving version notice neither appeared nor contested the case before this For a till this date. Hence we have proceeded ex-parte as against the opposite party No. 1 to 3.  The acknowledgment marked as court Document No. 1 & 2.

III.   1. In support of the complaint, Mr. Seetharam. (CW1) the Complainant filed affidavit reiterating what has been stated in the complaint and produced Ex. C1 to C4.  The defective hand set marked as MO-1. Opposite Parties set ex-parte.

          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 Zen mobile U 105 Fire Model Ultrafone hand set purchased on 05.11.2014 from the opposite parties found to be defective?-
2. Whether the complainant proves that the opposite parties have committed deficiency in service?
3. If so, whether the complainant is entitled for the reliefs claimed?
4. What order?

          We have considered the notes/oral arguments submitted by the learned counsel for the complainant  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-4, wherein the Ex C1 is the retail invoice, which shows that the complainant paid Rs. 1,999/- for purchase of hand set i.e MO.1 on 05.11.2014. The Ex C-2 is the Job sheet wherein shows that the hand set has some problem.  Ex C-4 is the Email communication.  The above documents shows that, till this date the hand set is out of order and not attended the complaint of the complainant it shows gross negligence on the part of the opposite parties.  Further noted that, the hand set found defective within the warranty period. Therefore, the opposite parties are liable to either refund the amount or repair the hand set.  Since, they have not repaired the hand set it is proved that the hand set purchased by the complainant is not up to the quality and suffering from short coming in quality. The opposite parties failed to maintain quality or standard which is required to be maintained. But, in the present case the complaint of the complainant not attended by the opposite parties.  Therefore, the opposite parties are liable to refund the amount of the hand set.  

  Further, the opposite party in-spite of receiving version notice not appeared nor contested the case. That the entire evidence placed by the complainant not contradicted nor controverted by the opposite party. That, the unrebutted evidence requires no further proof. Therefore we find that the opposite party are liable to refund the entire amount paid by the complainant and also pay adequate damages for the inconvenience caused to complainant.

           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 Party No. 1 to 3 jointly and severally shall pay Rs. 1,999/- to  the complainant  by taking back the defective hand set and also pay Rs. 5,000/- as damages for the inconvenience caused to the complainant  and further pay Rs. 3,000/- as litigation expenses. Payment shall be made within 30 days from the date of receipt of this order.

In the result, we pass the following:-

ORDER

The complaint is allowed. The opposite parties No. 1 to 3 jointly and severally shall pay to the complainant an amount of ₹ 1,999/-(Rupees one thousand nine hundred ninety nine only) by taking back the defective hand set and also pay Rs. 5,000/- as damages and further pay Rs. 3,000/- 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 within the stipulated time, the Opposite Party No. 1 to 3 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.

(Page No.1 to 7 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 30^th September 2015)

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. Seetharam – Complainant.

Documents produced on behalf of the Complainant:

Ex. C1 :      Original bill for receipt of Rs. 1,999/- given by Opposite Party No. 1 dated 05.11.2014.

Ex. C2 :      Original Job Sheet mobile for service

Dated 12-11-2014.

Ex. C3 :      Original DOA certification dated 20-11-2014.

Ex. C4 :      Email copy dated 20.11.2014.

Witnesses examined on behalf of the Opposite Party:

- Nil -

Documents produced on behalf of the Opposite Party:      

- Nil -

Dated: 30.09.2015.                                 PRESIDENT

ORDER

The complaint is allowed. The opposite parties No. 1 to 3 jointly and severally shall pay the complainant an amount of ₹ 1,999/- by taking back the defective hand set and also pay Rs. 5,000/- as damages  and further pay Rs. 3,000/- 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 within the stipulated time, the Opposite Party No. 1 to 3 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.

(Page No.1 to 7 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 30^st day of SEPTEMBER 2015)

PRESIDENT                                      MEMBER

 (SMT. ASHA SHETTY)                     (SMT. LAVANYA M.RAI)

D.K. District Consumer Forum                      D.K. District Consumer Forum

               Mangalore.                                                   Mangalore.