BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 28th November 2016
PRESENT
SMT. C.V. SHOBHA : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : HON’BLE MEMBER
ORDER IN
C.C. No.188/2016
(Admitted on 31.05.2016)
Mr. Jayakiran Acharya,
S/o Seethara Acharya,
Aged 29 years,
Residing at Bhatrakodi House,
Pedamale Post, Bhatrakodi,
Neermarga, Mangalore 575029.
…… COMPLAINANT
(Advocate for complainant Sri. VK)
VERSUS
- The Managing Director,
Sony India Pvt.Ltd,
Corporate Office, A.31,
Mohan Co operative Industrial Estate,
Mathura Road, New Delhi 110044.
- The Branch Manager,
M/s Harsha,Milagres Jubilee Mall,
Falnir Road, Milagres,
Mangaluru 575001
- The Proprietor ,
M/s Accel Frontline Ltd,
#515/A, P%T Block, Anikethan Main road,
Kuvempunagar, Mysore 570023.
- The Proprietor,
M/s Roshan Electronics,
LIG, 123, HUDCO, Panchamanthra Road,
Near JSS Law College, Jayanagar first stage,
Kuvempunagar, Mysore 23.
…...........Opposite Parties
(Opposite Parties Exparte)
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. C.V. SHOBHA:
I. 1. The above complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The complainant purchased Sony cell phone Xperia C3 D2502 Black, being Batch No.356872066265564, from Opposite Party No.2 on 18.07.2015 for a sum of 16,990/ as per Tax Invoice bearing No. G3BM201158.
Further, using phone camera complainant noticed that the camera was not clear and it is very blurry, the selfie view mode also blurry. Immediately on 22.07.2015 the complainant informed the Opposite Party No.2. The Opposite Party No.2 directed the complainant to go to the authorized service center of Opposite Party No.1 M/s Accel frontline Ltd, Kuvempunagara Mysore the Opposite Party No.3 their authorized service center personals took his phone and repair and returned the same on 25.07.2015 to upgrading the software of the phone and the stated problem had been rectified. But the complainant after noticed that the phone camera was in the same condition, again complainant approached Opposite Party No.3 on 12.08.2015 again repair and return the same. Thereafter the blurry of phone camera increased, hence again approached the Opposite Party No.3 third time. The Opposite Party No.3 again directed and advised to give the phone to Opposite Party No.4 they are authorized service Center. The complainant again given the mobile phone for repair on 14.08.2015 to the Opposite Party No.4, and till the date the Opposite Party No.4 is not rectified the problem. Again Opposite Party No.4 informed the complainant that the defective mobile, and finally on 26.12.2015 Opposite Party No.4 informed the complainant to collect the repaired set and informed that the problem has been rectified by changing the mobile main camera and Ant Top Frame Assy and upgrading the software. After laps of 4 months, the complainant noticed that the defects were not rectified by Opposite Party No.4. Further the complainant submits that the phone was used only for a week then there was repealed problem with the phone. The Opposite Party ie. The company, dealer, and service center have totally ignored and neglected the complainant Srievances and rights. Opposite Party No.1 being the manufacture of the phone, have indulged in unfair trade practice by manufacturing defective phone, retaining it to the market for sale and making unlawful gains. Further the complainant was issued a legal notice dated 06.01.2016 to all Opposite Parties through their advocate to pay damages and return the sale consideration. The Opposite Party No.2 to 4 has neither complied with the notice nor given any reply to the notice but the Opposite Party No.1 has replied the notice dated 22.02.2016 stating that they are offered to refund the amount to the complainant. Hence, the Opposite Party No.1 have clearly admitted the complainants claim. Hence this complaint.
II. 1. Version notice served to the Opposite Parties by RPAD inspite of receiving version notice the Opposite Parties No.1 to 4 neither appeared nor contested the case before this FORA. Hence we have proceeded ex-parte as against the Opposite Parties No.1 to 3. In support of the above complaint, Mr. Jayakiran Acharya, (CW1), the complainant filed affidavit reiterating what has been stated in the complaint and produced the document same has marked as Ex C1 to C10. The defective hand set marked as MO 1 Opposite Parties exparte.
III. 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 (Sony Xperia C3 D2502 Black cell Phone) hand set purchased on 18.07.2015 from the Opposite Parties found to be defective?
- Whether the complainant proves that the opposite parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
We have considered the 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) & (ii): Affirmative.
Point No. (iii) and (iv): As per the final order.
REASONS
IV. POINTS No. (i) & (iii):
In the instant case, the complainant in order to substantiate his complaint filed evidence in affidavit supported by material documents i.e. Ex.C1 to C10. The Ex.C1 is the original Tax invoice receipt issued by Opposite Party No.2 reveals that the complainant paid Rs.16,990/ on 18.07.2015 for purchase of subject hand set. The Ex.C2,C4,C5 and C7 retail invoice Bill where in shows that the complainant lodged a complaint with the Opposite Parties stated that the hand set camera was not clear and it is very blurry, the selfie view mode also blurry and the said hand set handed over to the Opposite Parties. Ex.C3 and C6 are the service Job Sheet and Ex.C8 and C9 is the legal notice with 4 acknowledgement issued by the complainant to the Opposite Parties, and C9 is the reply given by the Opposite Party No.1 that is the manufacturer to the complainant. It is pertinent to note that Opposite Parties not appeared nor contested the case till this date. The material evidence placed before the Fora is not contradicted nor controverted by the Opposite Parties. The unrebutted evidence requires no further proof. Apart from the above, we also observed that the complainant handed over the hand set to the Opposite Parties for repair with the complainant mentioned in Ex.C3 and C6 (Job Card) within the warranty period. It is noted that the Opposite Parties have not repaired the hand set till this date. Therefore, it is proved beyond doubt that hand set purchased by complainant is not up to the quality and suffering from short coming in quality. The Opposite Parties failed to maintain the quality or standard which is required to be maintained. Therefore, the Opposite Parties are liable to refund the entire amount because their service towards the customers/ complainant here in is not up to the standard and not satisfactory the same is amounts to deficiency in service. Generally, it the mobile hand set 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, under taken free service and rectify the defects during the warranty period do not escape liability towards the manufacturing defect found in the mobile hand set. As we, know, the contract through dealer/ service provider, privity of contract is with them. To insure 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 and responsible for the defect found in the mobile hand set in this case. But the complainant issued a legal notice as per the Ex.C8, the Opposite Party No.1 manufacturer has replied the notice dated 22.02.2016 stating that they are offered to refund the amount to the complainant, but no one is contacted to the complainant. Hence it is very much important to hold that the Opposite Parties are serving defective hand set to the complainant and there is a deficiency in service in the part of the Opposite Parties is proved. In view of the aforesaid reasons. We hold that, the Opposite Party No.1 to 4 jointly and severally shall refund the cost of the mobile hand set Rs.16,990/ by retaining the defective hand set and also to pay for a sum of Rs.10,000/ as damages to the complainant for the inconvenience and harassment caused. Further to pay another sum of Rs.5,000/ towards cost and litigation expenses incurred by the complainant.
Point No. (iv): In the result, accordingly we pass the following Order:
ORDER
The complaint is allowed in part. All the Opposite Parties are jointly and severally held liable and responsible for refund the cost of the mobile phone of Rs. 16,990/(Rupees Sixteen thousand nine hundred ninety only) with accrued interest at the rate of 10% p.a from the date of purchase that on 18.07.2015 till realization. Further for a sum of Rs. 10,000/ (Rupees ten thousand only) towards compensation also to pay, for causing inconvenience, mental agony including unable to use the said mobile, and further Opposite Parties also to pay another sum of Rs. 3,000/ (Rupees Three thousand only) towards cost and litigation expenses incurred by the complainant. Payment shall be made within 30 days from the date of receipt of copy of this order. Further, after complying the orders within the stipulated period by the Opposite Parties, they are at liberty to collect the said mobile set MO 1 from this forum with due proper identification.
Copy of this order as per statutory requirements, be forwarded to the parties and therefore the file shall be consigned to record room.
(Page No.1 to 7 directly dictated by President to computer system to the Stenographer typed by him, revised and pronounced in the open court on this the 28th day of November 2016.)
MEMBER PRESIDENT
(SMT.LAVANYA M. RAI) (SMT. C.V. SHOBHA)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1: Mr. Jayakiran Acharya.
Documents marked on behalf of the Complainant:
ExC1: Purchase Tax invoice bearing No.G3BM201158 dated 18.07.2015.
ExC2: Cash invoice bill dated 25.07.2015.
ExC3: Job card dated 12.08.2015.
ExC4: Cash invoice bill dated 12.08.2015.
ExC5: Cash invoice bill dated 14.08.2015.
Ex.C6: Job card dated 02.09.2015.
Ex.C7: Cash invoice bill dated 26.12.2015.
Ex.C8: Legal notice dated 06.01.2016.
Ex.C9: Postal Acknowledgement 4 No’s.
Ex.10: Reply notice dated 22.02.2016 by the Opposite Party No.1.
Witnesses examined on behalf of the Opposite Parties:
Nil
Documents produced on behalf of the Opposite Parties:
Nil
Dated: 28.11.2016 PRESIDENT
