Date of Filling:      06.04.2016

                                                                                                                       Date of Disposal:  02.11.2018

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

THIRUVALLUR-1

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

THIRU:R.BASKARKUMARAVEL, B.Sc.L.L.M., BPT., PGDCLP.,      …MEMBER

CC No.15/2016

FRIDAY, THE 02^nd  DAY OF NOVEMBER 2018

N.Udayachandar,

S/o.T.Nithyanandam,

No.3/488, Rajeev Gandhi Street,

M.G.R. Nagar,

Pullarambakkam village &Post,

Thiruvallur Taluk & District.                                               ……Complainant.

                                                 //Vs//

1.The Manager,

   Univercell,

   No.281, T.T.K. Road,

   Alwarpet, Chennai -600 018.

2.The Manager,

   Univercell,

   209/3, JN Road,

   Thiruvallur -602 001.

3.The General Manager,

   Micromax Head Office,

   Micromax House,

   90B, Sector -18,

   Gurgaon - 122 015.

4.The Manager,

   Micromax Tamil Nadu Head Office,

   No-17, 1^st Noble Street,

   Near to Engine Values Limited,

   Alandur, Chennai -600 056.

5.The Manager,

   DRB Enterprises,

   No – 141, AC Block, 1^st Floor,

   4^th Avenue, Shanthi Colony Road,

   Anna Nagar, Chennai -600 040.

6.The Manager,

   M/s. Shyam Info System,

   No.51/9 Oragadam Road,

   Venkata Puram,

   Ambattur, Chennai .

7.The Manager,

   M/s. Sky Way Technologies,

    Shop No.2,30/24, Balfore Apartment,

    Belfore Road, Kilpauk,

   Chennai.                                                                           …..Opposite parties.

The complaint is coming upon before us finally on 26.10.2018 in the presence of Thiru.S.Sushilkimar, counsel for the complainant and counsel for the opposite parties 1 and 2 filed written version and subsequently not come forward to file proof Affidavit,  the  1^st and 2^nd opposite parties were set Ex-parte and 3^rd to 7^th opposite parties were set ex-parte in the initial stage for non appearance and having perused the documents, evidences and written argument of the complainant side, this Forum delivered the following:-

ORDER

PRONOUNCED BY THE S.PANDIAN, PRESIDENT.

This complaint is filed by the complainant U/S 12 of the Consumer Protection Act-1986 against the opposite parties for seeking direction to provide new mobile phone instead of defective mobile and to pay a sum of Rs.2,00,000/- towards compensation for causing mental agony, hardship due to the deficiency of service on the part of the opposite parties and with cost Rs.10,000/- only.

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

The Complainant is a practicing Advocate in Thiruvallur, who purchased a Micromax Bolt Q 324 mobile phone No.911422856868694 on 09.11.2015 from 2^nd opposite party, Univercell Showroom at Thiruvallur for Rs.3333.32/-.  After two days, the mobile phone gave trouble by hang up.  From the next day onwards, the mobile did not work and the complainant contacted 2^nd opposite party and in turn he was told that no services are done and he directed the complainant to contact the service center, within 7 days from the date of purchase and also informed to the complainant that they will replace or exchange to defective mobile to a new mobile.  Since there was heavy rain during deepavali holidays, on 16.11.2015 the complainant went to 6^th opposite party, Ambattur service Center where the complainant found the office kept closed, and the complainant waited till 2.00p.m.  But none of them come forward to attend.

3. Thereupon, the complainant proceeded to 5^th opposite party, Anna Nagar service center.  There, they have verified the mobile and informed that there was a manufacturing defect and accepted to take the mobile and undertook to give a new mobile for that.  Since, they are not having DOA pouch, they informed that they are unable to receive the mobile, for replacing to a new one and informed the complainant to contact 7^th opposite party.  Bonafide believing their words, the complainant approached 7^th opposite party.  There, they informed, due to power shut down, they would not in a position to login.  They advised the complainant to contact the Anna Nagar service center.  In Anna Nagar Service center they gave customer information slip on 16.11.2015 in token No 22 and stated, since they were not having DOA pouch, they were unable to take the defective mobile.

4. Having purchased that mobile, the complainant informed that he being an Advocate, his clients was unable to contact him, because of the defective mobile phone and thereby the complainant was put in great difficulty and even he was not rendering service by the opposite parties. Thus there is negligence on the part of the opposite parties 1to7 and they are jointly and severally liable to replace the mobile, and also to pay compensation for mental agony, torture, inconvenience, and travelling expenses and the compensation for hardship caused to the complainant.  Hence this complaint.

5. The contention of written version of the 1^st and 2^nd opposite party is briefly as follows:-

The opposite parties1and2 submits that it denies all the averments and allegations in the complaint. The opposite party admits that it sold the Micromax Bolt Q 324 Model on 09.11.2015 with good condition and the same was accepted and acknowledged by the complainant.

6.  At the outset, each and every averments, statements, allegations and contention made by the complainant which are contrary and inconsistent, that this opposite parties only a seller of the product and not the manufacturer of the product.  The opposite party further submits that they are not giving any warranty and does not hold warranty of the products sold by them.  It was informed the complainant at the time of the terms and condition of the sale and the same is accepted by the complainant and signed the invoice.

7. That the complainant approached only the Authorized service center and the complainant never submitted the mobile for service to this opposite party.  The warranty card along with mobile handed over to the complainant on the purchase of the mobile phone is valid for the year specified there itself.

8. That, sale of handset is made subject to the conditions agreed by the customer with the retail dealer.  The terms incorporated in the receipt specified that the retailer seller is not personally liable to answer the defects that may occur in the sets.  The retail seller would only supply the product if they have and which is demanded by the customer and do nothing more.

9. It is clear that for the manufacturing defects in the mobile, the dealer cannot be held liable.  The liability must be borne by the manufacturer.  The 1^st and 2^nd opposite party is only the dealer of the mobile phones and not the manufacturer.  Hence the opposite party is not liable for any manufacturing defects.

10. That this opposite parties have no power to replace the product, unless or otherwise on the receipt of the Dead on Arrival (DOA) certificate from the manufacturer or its authorized signatory and on receipt DOA, the retailer may forward thesuch Certificate to the manufacturer.  On receipt of such DOA certificate, the supplier will provide the new handset.  Without DOA, the opposite party cannot help to customer.  In this case the complainant fails to submit such certificate to provide his claim.

11. The complainant has suppressed the material facts of the case and concocted at story with an ulterior motive to make unjust gains out of the false and vexatious complaint. There is no deficiency of service of any nature and neither any negligence on the part of the opposite parties and hence this opposite parties are not liable to make payment of any compensation.

12. In order to prove the case, on the side of the complainant, the proof Affidavit submitted as his evidence and Ex.A1 to Ex.A7 were marked.  While so on the side of the 1^st and 2^nd opposite parties though the written version filed, but proof affidavit not filed on their side and thereby 1^st and 2^nd opposite party were set ex-parte and op3 to op7 are set ex-parte in the initial stage for non appearance before this Forum.

13. At this juncture, the point for consider 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?

14. Written arguments filed and oral argument also adduced on the side of the complainant.

Point.No.1:-

15. On perusal of the averments of the complaint and proof Affidavit filed by the complainant, it is learnt that the complainant had purchased a Micromax Bolt Q 324 mobile, bearing No.911422856868694 on 09.11.2015 from the 2^nd opposite party for Rs.3334/- along with another LENOVA-HANDSETS-A for the tune of Rs.6667/- through Ex.A1 and the customer information slip Ex.A2 also issued by the 2^nd opposite party.  On further perusal, it is seen that from the next day onwards, the said mobile did not work and gave trouble by hang-up and immediately, when the complainant contacted the 2^nd opposite party and in turn he was informed that in that show room, no services are done by the 2^nd opposite party and he is directed to approach the service centre within 7 days from the date of purchase and they will replace or exchange the defective mobile to a new mobile.  On 16.11.2015, during Deepavali holidays the complainant went to 6^th opposite party, where the complainant found that the office kept closed.  Thereupon, the complainant proceeded to 5^th opposite party, they verified the mobile and informed there was a manufacturing defect and accepted to take the mobile and undertake to give a new mobile for that. Since they are not having DOA pouch (Dead on Arrival), they informed the complainant to contact the 7^th opposite party.

16. It is further seen from the evidence of the complainant that on believing the 7^th opposite party word, the complainant again contacted the 5^th opposite party as per the address given in the Ex.A4.  But, they also not come forward to comply the demand of the complainant because of not having DOA Pouch and thereby the complainant was wandering here and there unnecessarily and therefore the complainant issued notice Ex.A5 to the opposite parties and the acknowledgement card for the same is marked as Ex.A6(s).  Notice returned from the 4^th opposite party which is marked as Ex.A7.  There is no response on the side of the opposite parties.

17. At the outset, on going through the written version of the 1^st and 2^nd opposite parties, it is categorically admitted about the purchase of the alleged mobile from them and there is a manufacturing defect in the alleged mobile, the dealer cannot be liable and also it is pertinent to note that the 1^st and 2^nd opposite parties have no power to replace the product, unless or otherwise on the production  of the Dead on Arrival (DOA) certificate from the manufacturer and or its authorized signatory and therefore, there is no deficiency of service on the part of the 1^st and 2^nd opposite party.

18. Such being so, in order to substantiate the version filed by the 1^st and 2^nd opposite party, in spite of repeated opportunities and sufficient time were given to the 1^st and 2^nd opposite parties they have not chosen to appear before this Forum and filed the proof affidavit as their evidence and therefore  they were set Ex-parte.  At this instance, unless or otherwise placed their oral evidences by means of proof Affidavit in order to prove the averments made in the written version this Forum cannot be looked into the same.  Moreover, it is pertinent to note that even from next day of purchase of the said alleged mobile gave trouble by hang-up, which is not at all disputed anywhere on the side of the opposite parties.  At this point of time, it is crystal clear that there is a manufacturing defect in the alleged mobile purchased by the complainant through Ex.A1.  While being so, the opposite parties have not given any reply to the notice sent by the complainant and also they are not prepared to appear before this Forum though the notice sent from this Forum has been served properly, which clearly shows that there is no valid ground to dispute the averments of the complaint made against them.  In such circumstances, it goes without saying that the complainant has proved the deficiency of service on the part of the opposite parties 1to 7 and thereby causing mental agony and hardships to the complainant.  While so, there is no iota of evidence to disprove the same on the side of the opposite parties1 to 7.  Thus the point noNo.1 is answered accordingly.

19. Point No.2:

As per the conclusion arrived in point No.1, the complainant is entitled for relief as prayed in this complaint.  Thus the point No.2 is answered accordingly.

In the result, this complaint is allowed in part.  Accordingly, the opposite parties1 to 7 are jointly or severally liable and directed to provide new mobile phone namely Micromax Bolt Q 324 model on returning the defective mobile by the complainant  to the opposite parties or to refund the cost of the alleged mobile of Rs.3334/-(Rupees three thousand three hundred and thirty four only) and to pay a sum of Rs.5,000/-(Rupees five thousand only) towards compensation for causing mental agony and hardships to the complainant due to the deficiency of service on the part of the opposite parties 1to7 and also to pay a sum of Rs.2,000/- towards cost of litigation in toto  to the complainant.

The above order shall be complied within one month from the date of receipt of this copy of the order, failing which, this said amount shall carry interest at the rate of 9% per annum 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 of this 02^nd Novermber 2018.

                 MEMBER                                                                               PRESIDENT

List of document filed by the complainant:-

            MEMBER                                                                                        PRESIDENT