BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 30th July 2016
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : HON’BLE MEMBER
COMPLAINT NO. 67/2016
(Admitted on 06.02.2016)
Mrs. Sahana S.K.,
W/o Sujith Kumar,
aged 37 years,
Residing at H.No. 4.3A,
Permannur Village,
Babbukatte, Thokkottu,
Mangalore, D.K.
…….. COMPLAINANT
(Advocate for Complainant: Prashanth Poojary A.)
VERSUS
1. The Manager,
Sangeetha Mobiles Pvt. Ltd.,
#258/2A, Balmatta Complex,
Balmatta Road,
Opp. Juice Junction,
Main Road,
Mangaluru 575002.
2. The Manager,
TECH SMART MOBILE SOLUTIONS,
#292, Ist Main, Ist Cross, Defence Colony,
Indiranagar,
Bengaluru.
……OPPOSITE PARTIES
(Opposite Parties No.1 & No.2 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 handset as against the opposite parties claiming certain reliefs.
The brief facts of the case are as under:
The complainant purchased mobile handset i.e. the WS.50-2.1WHAM for Rs.7,303 from opposite party No.1 on 05.10.2014.
It is stated that immediately after purchase there was problem in hand set, no battery backup, camera not working properly, no speedy arrival of internet in the Mangalore city and touch not working. Thereafter the complainant taken the hand set to service center and delivered the hand set to Opposite Party No.2. But Opposite Party No.2 not repaired the hand set stating that complaint has misused the hand set and it cannot be repaired. The complainant stated that, the hand set purchased by him is defective and produced the defective hand set before the FORA. Feeling aggrieved by the above, 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.7,303/ along with interest and compensation and cost of the proceedings.
II. 1. Version notice served to the opposite parties No. 1 & 2 by R.P.A.D. Inspite of receiving version notice the Opposite Parties
neither appeared nor contested the case before this FORA. Hence we have proceeded ex parte as against the opposite party No. 1 to 2. The acknowledgment marked as court Document No. 1 to 2.
III. 1. In support of the complaint, Mrs. Sahana S.K. (CW1) the Complainant filed affidavit reiterating what has been stated in the complaint and produced Ex. C1 to C5. Defective hand set marked as M.O.No1. 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 Mobile handset WS.50.2.1WHAM, i.e. Android Mobile Phone purchased on 05.10.2014 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 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 C1 to C5. The Ex C1 is the Invoice dated 05.10.2014 which shows that the complainant paid Rs. 7,303/ for purchase of handset on 05.10.2014. The Ex C2 is the service job sheet. Ex C3 is the legal notice dated 03.9.2015 shows that hand set does not work properly from the date of purchase and power does not switch on. From the above documents it is revealed that the new hand set purchased by the complainant is not working that the defective hand set produced before this FORA along with the complaint has been marked as M.O No.1.
Further we noted that the opposite parties inspite of receiving version notice neither appeared nor contested the case till this date. The entire evidence placed by the complainant not contradicted nor controverted by the Opposite parties, which requires no further proof. From the material evidence placed by the complainant it is proved that hand set is not working and the same has developed some defect with in the warranty period which shows the opposite parties failed to maintain the quality or standard which is required to be maintained. Therefore the Opposite Parties liable to refund the entire amount instead of replacing the hand set because the service rendered by the opposite Parties not up to the standard hence refund of amount meets the ends of justice in this case instead of replacement of handset.
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 and 2 jointly and severally shall refund the cost of the mobile handset Rs.7,303/ by taking back the defective handset i.e., M.O. No.1 and also pay of Rs.7,000/ 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.
6. In the result, we pass the following
ORDER
The complaint is allowed. The opposite parties No. 1 and 2 jointly and severally shall pay the complainant an amount of ₹ 7,303/ by taking back the defective retaining the defective hand set and also pay Rs.10,000/ as compensation and cost of the 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 and 2 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.
(Dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 30th day of JULY 2016)
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:
CW1: Mrs. Sahana S.K.
Documents produced on behalf of the Complainant:
Ex. C1: Cash Invoice
Ex.C2: Service Job Sheet issued by the TECH SMART
MOBILE SOLUTIONS
Ex.C3: Legal Notice
Ex.C4 &Ex.C5: Postal Acknowledgement (in 2 Nos.)
Material object produced by the Complainant:
M.O. No.1
Witnesses examined on behalf of the Opposite Party:
Nil
Documents produced on behalf of the Opposite Party:
Nil
Dated: 30.07.2016. PRESIDENT
