Date of Filling      :  07.08.2015.

                                                                                            Date of Disposal  :  17.08.2016.

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR - 1.

PRESENT:  THIRU. S.  PANDIAN, B.Sc., L.L.M.,              …    PRESIDENT

                     TMT.  S.  SUJATHA, B.Sc.,                          …    MEMBER - I

Consumer Complaint No.40/2015

(Dated this Wednesday the 17^th day of August 2016)

C. Rajasekarapandian,

No.106, Karukku Main Road,

Bharath Nagar,

Menambedu,

Ambattur,

Chennai - 600 053.                                                                … Complainant.

/ Versus /

1.   Poorvika Mobiles Private Limited,

      No.451, M.T.H. Road,

     Ambattur,

     Chennai - 600 053.

2.  Samsung India Electronics Pvt. Ltd.,

     2, 3 & 4^th Floor, Tower C,

     Vipul Tech Square,

     Golf Course Road,

     Gurgaon Sector 43,

     Gurgaon - 122 002.                                                … Opposite parties.

This complaint is coming upon before us finally on 03.08.2016 in the presence of the complainant, Thiru. V.V. Giridhar, Counsel for the 2^nd opposite party and the 1^st opposite party is set Ex-parte for non appearance and  having perused the documents and evidences on the side of the complainant and  2^nd opposite party this Forum delivered the following,

                                            ORDER

PRONOUNCED BY THIRU. S.  PANDIAN, PRESIDENT

          This complaint is filed by the complainant U/S 12 of Consumer Protection Act, 1986 against the 1 & 2 opposite parties for seeking relief to refund the cost of the Samsung mobile of Rs.4,100/- along with 12% interest, to pay a sum of Rs.25,000/- towards compensation for physical strain and mental agony suffered by the complainant with cost.

2.       The brief averments of the complaint is as follows:-

On 01.03.2014, the complainant purchased a Samsung mobile (Model GT C3322i) manufactured by the 2^nd opposite party from the showroom of the 1^st opposite party for the cost of Rs.4,100/- vide invoice no.23426 dated: 01.03.2014.  On the date of purchase, the salesman one Mr.Karthi told the complainant that the mobile has tethering facility inbuilt.  On his words, the complainant trusted the salesman of the 1^st opposite party and bought that mobile phone but it did not have such tethering facility.  Then the complainant immediately informed it to the 1^st opposite party, and they checked the mobile and told the complainant that this type of mobile is not having the software to tether mobile to PC.  After hearing this the complainant was shocked and vexed about the purchase of mobile which did not have the tethering facility by the words of the 1^st opposite party’s shop salesman since the main purpose of his purchase was to tether Mobile to PC.

3.       When the complainant immediately submits the product that the 1^st opposite party refused to get back the mobile and replace it with a new one with Tethering facility.  On 15.03.2014, the complainant issued notice to the opposite parties.  On 11.04.2014 the 1^st opposite party called the complainant at 08:26 p.m. the complainant’s Assistant picked up the call and asked him to call later because of the complainant was driving.  After that, no communication was made by both opposite parties, the complainant extremely disappointed and facing a lot of mental stress and agony for purchase of the defective goods due to the  deficiency of services of the opposite parties’.   Hence this complaint.

4.       The contention of written version of the 2^nd opposite party is  briefly as follows:-

The 2^nd opposite party denies each and every averments made by the complainant which are false.  The 2^nd opposite party states that they are not proper and necessary party in respect of the above complaint has no allegation was made as against the 2^nd opposite party.  Therefore, the above complaint is liable to be dismissed as for misjoinder of parties.  That at no point of time, they have mentioned to the complainant that the said model is provided with the tethering facility.  Further in the box of the mobile itself gives the details of the facilities provided in the mobile. 

5.       Therefore, it is the primary duty of the complainant to verify the details above the specifications of the mobile phone before purchasing the mobile phone.  Therefore, there is no deficiency in service on the part of the opposite party and has no suppression or no false promise was given by the 2^nd opposite party.  There is no cause of action for the above complaint and bare reading of the complaint would clearly establish that there was no substance in the complaint.  The complainant is not eligible either for refund or replacement of the mobile phone and he is not entitled for any compensation.  Hence it is liable to be dismissed with cost.

6.       In order to prove the case, on the side of the complainant, the proof affidavit submitted for his evidence and Ex.A1 to Ex.A4 were marked.   Whereas, on the side of the  2^nd opposite party, proof affidavit is filed and no documents marked as his evidence.

7 .      At this juncture, the point for consideration before this Forum is:-

1. Whether there is any deficiency of service on the part of the opposite parties as alleged in the complaint?

2. To what other reliefs, the complainant is entitled to?

8.     Oral arguments adduced and the written arguments filed on the side of the 2^nd opposite party.   Inspite of sufficient time given, the complainant has neither come forward to file written arguments nor to adduce oral arguments. Hence, it is closed.

          9.       Point no.1:-

According to the case of the complainant is that when he purchased the Samsung Mobile Model GT C3322i which was manufactured by the 2^nd opposite party from the 1^st opposite party for the cost of Rs.4,100/- the complainant was told that the alleged mobile is having tethering facility and can tether from Mobile to PC.  But actually such tethering facility is not found available in the said mobile and it certainly amounts for unfair trade practice committed by the 1^st opposite party, which leads to deficiency of service on the part of the opposite parties.

10.     On the other hand, it is vehemently contended by the 2^nd opposite party that at any point of time, the 2^nd opposite party has mentioned to the complainant that the said model is provided with tethering facility and infact in the box of the mobile itself gives the details of the facilities provided and therefore it is the primary duty of the complainant to verify the same before purchasing the mobile phone.  It is further contended that there is no deficiency in service on the part of the 2^nd opposite party in the complaint itself and hence the 2^nd opposite party is not a necessary party and therefore, this complaint is dismissed for misjoinder of parties.

11.     At this juncture, on careful perusal of the rival submissions put forth on either side, it is crystal clear that it is an admitted fact that the complainant had purchased the Samsung Mobile vide Model GT C3322i from the 1^st opposite party for the cost of Rs.4,100/-and for which the invoice is marked as Ex.A1.  It is further seen from the evidence of the complainant that after purchase of the above said mobile it was found that the tethering facility is not available as per the words of the salesman of the 1^st opposite party and for which, the Inspection Slip is marked as Ex.A2.   It is further stated by the complainant that immediately, he approached the 1^st opposite party to get back the mobile and to replace it with new one with tethering facilities.  But the 1^st opposite party refused to do so and therefore, the complainant had issued Ex.A3, legal notice to the opposite parties and the same was received by the 1^st opposite party.  The acknowledgement card of the 1^st opposite party for the receipt of the same is marked as Ex.A4. Even thereafter, the 1^st opposite party has not come forward to comply the demand of the complainant which amounts for deficiency of service.

12.     In such circumstances, on careful perusal of the averments of the complaint as well as proof affidavit of the complainant, it is crystal clear that none of the averments mentioned about any deficiency of service on the part of the 2^nd  opposite party.  Moreover, the 2^nd opposite party is only the manufacturer of the alleged mobile phone.  Furthermore, it is learnt that the 2^nd opposite party is no way connected with the allegation made by the complainant in the complaint and also the act committed by the salesman of the 1^st opposite party will not any way bind upon the 2^nd opposite party, who is not the employer for the said salesman and also there is no evidence to such extent.  Therefore, as rightly pointed out by the 2^nd opposite party that there is no deficiency of service on the part of the 2^nd opposite party and he is not a necessary party in this complaint.

13.     Such being so, this Forum has to consider whether there is any deficiency of service on the part of the 1^st opposite party?  Regarding this, the complainant has produced Ex.A1, the invoice for the purchase of the Samsung mobile vide model GT C3322i and also Ex.A2, the inspection Report.  At this point of time, in order to disprove Ex.A1 & Ex.A2, the 1^st opposite party ought to have appeared before this Forum and produce relevant evidences.  While being so, the 1^st opposite party has not chosen to appear before this Forum even he is in receipt of the notice issued from this Forum.  Moreover, sufficient time was given to the 1^st opposite party, he has not come forward to contest the allegation made in the complaint.   Not only that, the 1^st opposite party has not given any reply to the Ex.A3, legal notice sent by the complainant which clearly reveals the fact that the allegations made by the complainant are true.   At this juncture, it is crystal clear that there is no contra evidence, to the evidence adduced by the complainant.  Therefore, this Forum has presumed that the allegations made in the complaint are true.   Furthermore, this Forum can easily drawn an adverse inference against the 1^st opposite party.

14.     From the foregoing of among other facts and circumstances, this Forum without any hesitation to conclude that the complainant has proved the allegations made against the 1^st opposite party with acceptable and consistent evidence and thereby, the attitude of the salesman of the 1^st opposite party clearly amounts for an unfair trade practice which leads to deficiency of service on the part of the 1^st opposite party.   Thus, point no.1 is answered accordingly.

15.     Point no.2:-

In view of the conclusion arrived in point no.1, this Forum concludes that the complainant is entitled for reasonable compensation from the 1^st opposite party only, for causing mental agony due to deficiency in service on the part of the 1^st opposite party with cost.

16.     In the result, this complaint is allowed in part.  Accordingly, on production of the alleged Samsung Mobile Model GT C3322i by the complainant to the 1^st opposite party, the 1^st opposite party is directed to refund the cost of the mobile of Rs.4,100/- to the complainant and to pay a sum of Rs.5,000/- towards compensation for causing mental agony and hardship due to the deficiency of service on the part of the 1^st opposite party with cost Rs.2,000/-, totally of Rs.11,100/- (Rupees eleven thousand and hundred only).  In respect of the 2^nd opposite party, this complaint is dismissed.

 The above amount shall be payable within one month from the date of receipt of the copy of the order, failing which, the said amount shall carry interest at the rate of 9.5% till the date of payment.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Forum on this 17^th   August  2016.

Sd/-****                                                                                        Sd/-****

MEMBER - I                                                                             PRESIDENT

List of documents filed by the complainant:-

List of documents filed by the 2^nd opposite party:-

Nil.

Sd/-****                                                                                        Sd/-****

MEMBER - I                                                                             PRESIDENT