BEFORE THE DAKSHINA KANNADA DISTRICT
CONSUMER DISPUTES REDRESSAL FORUM,
MANGALORE
Dated this the 31st May 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : HON’BLE MEMBER
ORDERS IN
C.C.No.334/2016
(Admitted on 24.9.2016)
R.Vijaya Hilary Penha,
S/o Richard Penha,
St. Joseph Nagar, Kankanady Post,
Mangalore 575002.
……… Complainant
(Advocate for Complainant by: Smt. LCHH)
VERSUS
- The Manager,
M/s Poorvika Mobiles Private Ltd,
Branch Mangalore Mall,
The Forum Fiza Mall,
Shop No.GF.09,
Mangalore 575001
- The Manager,
Sony Mobile Communications Inc,
Arima Communications (Jiangsu) Corp,
Sony India Pvt, Ltd, A.31,
Mohan Co-Operative Industrial Estate,
Mathura Road,
New Delhi 110044.
…. Opposite Parties
(Opposite Party No.1: Ex parte)
(Opposite Party No.2: In person)
ORDER DELIVERED BY HON’BLE MEMBER
SMT. LAVANYA M. RAI
- 1. This complaint is filed under section 12 of the Consumer Protection Act alleging defect in hand set as against the opposite party claiming certain reliefs.
The brief facts of the case are as under:
The complainant had purchased white Sony mobile (Xperia C4) (E5363) No.352196072809841 from Opposite Party No.1. the said mobile was purchased on 1.1.2016 vide invoice No.SI/MANG/7090 by paying total amount of Rs.22,999/ including tax. Mobile phone purchased has got a warranty for period of 1 year. After few days of purchase, the complainant noticed problem in the touch pad screen of the said mobile. As per direction of Opposite Party No.1 the complainant contacted the service centre and gave the mobile for repair. After repair phone was delivered to the complainant. Even after repair not able to make use of the said mobile phone and once again approached the above mentioned service centre on 9.4.2016 and repaired the same but again in the month of June 2016 there was problem in the touch screen. But within a period of 5 days, again the complainant was not able to make use of the said mobile phone and again he had to approach the servicew centre. he gave the mobile phone to them on 27.6.2016 for repair and the same was returned to the complainant on 29.6.2016 with a remark (Liquid ingression) and the same was not repaired.
The Opposite Parties have supplied a defective handset to the complainant and it suffers from major manufacturing defect. The said defect has occurred during the warranty period and it is a manufacturing defect. It is admitted that by supplying the defective mobile set the Opposite Parties have committed an act of unfair trade practice and it also amounts to deficiency in service. The complainant got issued a legal notice and the Opposite Party No.2 has forwarded a reply for the said legal notice, falsely stating that the said mobile set is damaged due to external cause of liquid ingression. Hence the above complainant filed under section 12 of the C.P Act 1986 (here in after referred to as the Act) seeking direction to the Opposite Party to refund of Rs.22,999/ and take back the defective mobile set and also pay amount of Rs.10,000/- towards compensation of mental agony and further Rs.5,000/ towards cost of the legal notice.
II. Version Notice served to the opposite parties by RPAD, the Opposite party No. 1 and 2 not present hence placed exparte.
III. In support of the above complaint, the complainant Mr. R. Vijaya Hilary Penha, filed affidavit evidence as CW1 and produced documents got marked at Ex.C1 and C3. Opposite Parties not lead any evidence hence treated nil.
IV. 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 purchased white Sony mobile (Xperia C4) (E5363) set from the 1.1.2016 opposite parties found to be defective?
- Whether the complainant proves that there is a deficiency of service on the part of the Opposite
- If so, for what relief and from whom the complainant entitled?
- What order?
We have considered the notes/oral arguments submitted by the learned counsel and also considered the materials that was placed before this Forum and answer the points are as follows:.
Point No. (i) to (iii): As per Affirmative
Point No. (iv): As per the final order.
REASONS
- The complainant in order to substantiate the averments made in the complaint filed affidavit supported by the documents. The Ex.C1 is the legal notice, Ex.C2 is the copy of the reply notice. The Ex C3 is the retail invoice and Ex.C1 shows that the complainant paid Rs. 22,999/ for purchase of handset. From the above documents revealed that the new hand set purchased by the complainant is not working within warranty period. As per Ex.C2 the Opposite Party admits that the purchased product of sony Xperia C4 model E5363 was serviced as per Ex.C3 with in the warranty period. Mobile set was taken for repair for more than 3 times within a period of 6 months. which itself proof that the mobile set has in herent defect and only to cancel the same, the Opposite Party alleging that the phone was found to be damaged due to external cause of liquid ingression and the entire evidence placed by the complainant not contradicted nor controverted by the Opposite Party hence no further proof.
However we also personally examined that the MO produced before this fora which found that, after charging the mobile for long time not working properly hence we consider the mobile hand set is defective. When the goods purchased is defective with in the warranty period then it clearly shows that there is a manufacturing defect in the hand set. The Opposite Party nowhere denied that the mobile hand set is not within the warranty period as per Ex.C2.
As per Ex.C2 Opposite Party No.2 admits that the service estimate for the damage of Rs.9,700/ was given on 22.6.2016 but complainant not approved the estimation and collected the set on 22.6.2016 it presumes that the Opposite Party will fully estimate service charge for liquid ingression after free service of there times.
It is settled position that a person purchased a new hand set only for his/her use and not to suffer the inconvenience of repeated visits to the workshop and frequent deprivation of the case of the hand due to such snags. Similarly in the present case, the complainant purchased the hand set by paying Rs. 22,999/ even thereafter when complainant approached the Opposite Party with several problems it shows the quality and standard of manufacturing of the product sold by the Opposite Party and it amount to deficiency in service. But in this case we also noted that the complainant not produced the original purchase bill. But the amount paid to the hand set mentioned in the Ex.C1 legal notice but Opposite Party not disputed the same in Ex.C2.
When the mobile hand set has manufacturing defect it 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 under taken free service and rectify defect during the warranty do not escape liability towards the manufacturing defect found in the mobile hand set. As we know, the contract through dealer/service provider, private 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 would be for the dealer to claim reimbursement from the manufacturer. Hence the dealer and manufacturer are jointly and severally liable for the defect found in the mobile hand set in this case.
In view of the above said reasons, we hold that the Opposite Party No.1 , and 2 are jointly and severally shall refund of Rs. 22,999/ towards cost of the mobile set and also pay of Rs. 10,000/ as damage to the complainant for the inconvenience and harassment caused. Further pay Rs. 5,000/ as litigation expenses. Payment shall be made within 30 days from the date of this order. As such the answer No.1 to 3 are affirmative.
Point No. IV: In the result, accordingly we pass the following Order:
ORDER
The complaint allowed. The Opposite Party No. No.1 and 2 are jointly and severally shall refund of Rs.22,999/ by taking back the defective hand set and also pay of Rs.10,000/ as damage to the complainant. Further pay Rs.5,000/ as litigation expenses. Payment shall be made within 30 days from the date of this order.
In case of failure to pay the above mentioned amount with in the stipulated time, the opposite parties are directed to pay interest at the rate of 9% 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 forwarded to the parties and therefore the file shall be consigned to record room.
(1 to 7 pages dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 31st May 2017)
MEMBER PRESIDENT
(LAVANYA M.RAI) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW 1: Mr. R. Vijaya Hilary Penha
Documents marked on behalf of the Complainant:
Ex.C1: Copy of the legal notice dated 6.8.2016.
Ex.C2: Copy of the reply notice dated 30.8.2016.
Ex.C3: Copy of the retail invoice dated 11.3.2016, 9.4.2016,21.6.2016 and 27.6.2016.
Witnesses examined on behalf of the Opposite Parties:
Nil
Documents marked on behalf of the Opposite Parties:
Nil
Dated: 31.5.2017 MEMBER
