BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 31^th AUGUST 2015

PRESENT

        SMT. ASHA SHETTY           :  HON’BLE PRESIDENT

        SMT.LAVANYA M. RAI        :   HON’BLE MEMBER                                        

SRI B. NIRMALAKUMAR     :   HON’BLE MEMBER

COMPLAINT NO. 69/2015

(Admitted on 13.02.2015)

Mr. K. Divakar

S/o. K. Parameshwar

Aged about 54 years,

“Upasana” Post Madhur

Kasaragod, Kerala State

Now working at

Mangalore.                               …….. COMPLAINANT

(Advocate for Complainant: Sri K.B. Arasa.)

 VERSUS

1. The General Manager,

M/s MICROMAX Informatics Ltd.,

Micromax House, 90B, Sector 18,

Gurgaon-122 015.

2. The Proprietor,

M/s Rajaram Telecom

Dubai Market

City Market Shopping Complex

Opp Central Market,

Mangalore-575 001.

3. The Manager,

MICROMAX

M/s Mobile Field

D.No. 16-1-63-51(FF)

Mangalore Gate Complex

Kankanady Bypass Road,

Mangalore. 575 002.                       ……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 purchased mobile hand set Micromax P 4101 on 29.05.2014 by paying sum of Rs. 9,999/-.  It is stated that, immediately after purchase there was problem in display in touch screen. Thereafter the complainant taken the hand set to service center and delivered the hand set to Opposite Party No. 3.   But Opposite Party No. 3 not repaired the hand set nor returned the same.  The complainant stated that, the hand set purchased by him is defective and 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. 9999/- 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 receiving version notice neither appeared nor contested the case before this Fora, 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. K. Divakar. (CW1) the Complainant filed affidavit reiterating what has been stated in the complaint and produced Ex. C1 to C6. 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:

1. Whether the complainant proves that the MICROMAX P 4101 Model hand set purchased on 29.05.2014 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 counsels 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 cash bill which shows that, the complainant paid Rs. 9999/- for purchase of hand set on 29.05.2014. The Ex C-2 is the Job card wherein shows that, the hand in the custody of opposite party No. 3 i.e. authorized service Center for repair.  But, till this date the hand is not repaired nor delivered the complainant shows the 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.  Therefore, the opposite parties are liable to instead of repairing the hand set, we hereby directed them to refund the entire amount because their service toward the customers/complainant herein is not upto the standard. 

  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 refund the cost of the mobile handset Rs. 9,999/-by retaining the handset and also pay of Rs. 10,000/- as damages to the complainant for the inconvenience and harassment caused. 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 ₹ 9,999/ by retaining the defective hand set and also pay Rs. 10,000/- as compensation and also 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 31^st day of AUGUST 2015)

PRESIDENT             MEMBER                  MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW-1  :       Mr. K. Divakar – Complainant.

Documents produced on behalf of the Complainant:

Ex. C1 :      Original bill for receipt of Rs. 9,999/- given by Opposite Party No. 2 dated 29.05.2014.

Ex. C2 :      Original receipt for receipt of mobile for service

Dated 21-08-2014.

Ex. C3 :      The Office copy of the Lawyer’s Notice

dated 19.11.2014.

Ex. C4 :      Postal receipts -3 Nos dated 19.11.2014.

Ex. C5 :      Postal acknowledgment of Opposite Party No. 2 and 3 dated 20.11.2014.

Witnesses examined on behalf of the Opposite Party:

- Nil -

Documents produced on behalf of the Opposite Party:      

- Nil -

Dated: 31.08.2015.                                 PRESIDENT