BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 30th SEPTEMBER 2015
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : HON’BLE MEMBER
COMPLAINT NO. 203/2015
(Admitted on 10.07.2015)
Sri Goraknath Shetty,
Son of late Radhakrishna Shetty,
Aged about 39 years,
Residing at ‘Sai Grandur Apartments’
Apartment 401 B, 4th Floor, Jail Road,
Mangalore-575003. …….. COMPLAINANT
(Advocate for Complainant: Sri Sudhakar Rai.S.)
VERSUS
1. Proprietor/Authorized Signatory,
Univercell, the mobile expert, Univercell Telecommunication India Pvt. Ltd., G2, Inland Avenue,
Ground Floor, M.G. Road,
Lalbahag, Mangalore- 575003.
2. Proprietor/Authorized Signatory,
Micromax Mobil Service Center,
D.No. 16-163/51,
Mangalore Gate Complex,
Kankanady By-Pass Road,
Mangalore-575002.
3. Mangaing Director/
Authorized Signatory,
Micromax Informatics Ltd.,
Block-A Plot No. 21/14,
Naraina Industrial Area, Phase-II
New Delhi-110028.
Delhi-India. ……OPPOSITE PARTIES
(Opposite Party No. 1 to 3 : Ex-parte)
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 hand set Micromax on 18.05.2014 by paying sum of Rs. 10,739/-. It is stated that, within two months from purchase the hand set developed some problems and approached opposite parties. The service center returned the hand set after repair. Again the same problem started and approached the service center and requested to replace the hand set. But, the opposite parties failed. Hence 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. 10,800/- 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, Sri Goraknath Shetty. (CW1) the Complainant filed affidavit reiterating what has been stated in the complaint and produced Ex. C1 to C5. Opposite Parties ex-parte.
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 MICROMAX hand set purchased on 18.05.2014 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 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-5 and also produced defective hand set i.e. MO.1, wherein the Ex C1 is the cash bill which shows that, the complainant paid Rs. 10,739/-. for purchase of hand set on 18.05.2014. The Ex C-2 is the legal notice issued by the counsel for the complainant. It shows that the hand set sold by the opposite party has problem i.e. the back botton is not working, the complainant could not transfer the phone number to other gadgets. MO No. 1 shows that, the hand set is defective and not usable. However it is noted that, the hand set found above defect 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. Therefore, the opposite parties are liable to fund the amount by taking back the defective hand set i.e. MO No. 1.
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 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 the complainant an amount of Rs.10,800/-(Rupees Ten thousand eight hundred only) by taking back the defective hand set and also pay Rs. 10,000/- as compensation 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 the complainant an amount of ₹ 10,800/-(Rupees Ten thousand eight hundred only) by taking back the defective hand set and also pay Rs. 10,000/- as compensation 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 30st 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.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW-1 : Sri Goraknath Shetty – Complainant.
Documents produced on behalf of the Complainant:
Ex. C1 : Xerox copy of the bill for receipt of Rs. 10,739/- given by Opposite Party No. 2 dated 18.05.2014.
Ex. C2 : The Office copy of the Lawyer’s Notice
dated 28.11.2014.
Ex. C3 : Postal acknowledgment of Opposite Party No. 1 dated 01.12.2014.
Ex. C4: Postal acknowledgment of Opposite party No. 2
Dated 01.12.2014.
Ex. C5: Postal acknowledgment of Opposite party No. 3
Dated 29.11.14
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 ₹ 10,800/- by taking back the defective hand set and also pay Rs. 10,000/- as compensation 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 30st day of September 2015)
PRESIDENT MEMBER
