Karnataka

Gadag

CC/37/2014

Budappa.H.Hunashimarad, R/o Manjunath Nagar Badavne, Betgeri. - Complainant(s)

Versus

Home shop18, North India Top Cmpy(P) Ltd. Logistic Park, Haryana. - Opp.Party(s)

V.F.Sindagi

21 Jun 2016

ORDER

JUDGEMENT DELIVERED BY

SMT.C.H.SAMIUNNISA ABRAR, PRESIDENT:

The complainant has filed this Complaint against the Opposite Party (herein after referred in short as OP) u/s 12 of Consumer Protection Act, 1986 alleging deficiency in service against OP. 

 

2.    The brief fact of the case is that the Complainant had purchased a mobile hand set from OP who is the distributor and dealer, the said mobile handset had been ordered on phone, the OP accepted the order and sent the product through Value Payable Post at Gadag, the mobile model bearing No.44-34-White Phone Spice Full Touch, Dual SIM. Mobile phone No.NITCDRH/DRH/08/2014/ 2516787 and Order No.951126871 and sub-order No.58100323. Accordingly, the Complainant accepted the mobile handset by paying the value of the product of Rs.4999/- on 18.08.2014.

 

3.      After 4-5 days, the mobile handset started giving problems in its function and thereafter it totally stoped functioning, an air phone device was also not functioning properly along with the battery. The Complainant had noticed many other problems in the said handset same had been informed to the OP.

 

4.      Further, Complainant submits that the problem was informed to the OP, but the OP did not came forward to repair or exchange the mobile set after appraising the above problems to the OP. Complainant submits that instead of replacing the product, the OP directed the Complainant to contact the Service Centre at Davanagere, Bellary or Bagalkot. But those Service Centers were not ready to repair the said mobile and stated that they do not accept or entertain any Complaint of the OPs Company. Hence, the Complainant had issued the legal notice to the OP through his advocate on 30.09.2014 and amended notice on 01.10.2014. The said legal notice was duly served on the OP, but the OP not replied to the notice nor repaired or exchanged the mobile.

 

5.      Further, Complainant prayed to order the OP to replace the new mobile or alternative pay Rs.5,000/- cash along with Rs.60,000/- compensation along with 18% interest.      

 

6.      The predecessor on the seat registered the Complaint and notice was issued to OP. The OP appeared before this Forum through his Advocate and filed his written version.

Brief facts of the Written Version of OP:

The OP had totally denied the averments made in the Complaint and submits that the title of the Complaint is defective as the address of the OP has not been mentioned the Complainant had order the product from the OP, TV 18 Home shop Network the OP will receive the order through HS 18 TV channels of TV, SMS, internet and mail and will be distributed/sold on behalf of North India top Company. Even payment collected by the OP on behalf of N.I.T.C. (North India Top Company) as per the MOU between these two Company.

 

7.      The OP further submits that the allegations made by the Complainant in the Complaint are false, incorrect and baseless. It is instituted for the purpose of harassment to the OP. Hence, the Complaint is liable to dismiss with heavy costs.

 

8.      The Complainant had wrongly and falsely impleaded the OP instant Complaint is fit case of misjoinder of necessary party. Further, submits that Complainant had not mentioned single allegation against the OP. The Complainant had not impleaded the manufacturer of mobile i.e. SPICE Mobile Company. In the absence of the manufacturer proper adjudication is not possible.

 

9.      Further the OP submits that the allegation made by the Complainant is pertaining to manufacturing defect and deficiency in service. The Complainant had not deposited mobile phone before the Forum and also not filed any report of Expert showing the defect in mobile in absence of evidence of Expert or Expert Report, the allegation made are baseless. Further the OP stated that the Order by the Complainant on 13.08.2014 to purchase a SPICE Full touch Duel SIM phone 449-3G-white worth Rs.4,999/-, the OP had deliver the same and Complainant received it on 28.08.2014. Since there was no discrepancy or deficiency in service regarding delivery of the product, the OP had delivered the product in time which had not been disputed by the Complainant, the role of the OP was limited and restricted only to receive the purchase order and ensure delivery of the product, OP had nothing to do with its manufacturing defect hence the OP had prayed to dismiss the Complaint with costs.        

10.    On the back ground of the above said pleadings, the Complainant himself examined before this Forum as CW-1 and got marked the documents as EX P1 to P5. The documents are as follows:

1)  EX P1 Amended Legal notice,

2)  EX P2 Invoice,

3)  EX P3 Retail Invoice cum Order Form,

4)  EX P4 Postal Details,

5) EX P5 Legal Notice.

        On the other hand, OP was filed a written version and filed a Memo stating that Written Version itself may be considered at a Chief Affidavit of OP and 03 zerox documents are produced. The said documents are as follows:

1.   MOU
2.  Warranty Card,
3. List of Authorized Service Centre,

11.    On the basis of above said pleadings, oral and documentary evidence, the following points arises for adjudications are as follows:   

1.   2.     3.   4.	Whether the Complaint lies in this jurisdiction?   Whether the Complainant proves that there was deficiency in service on the part of the OP?   Whether the Complaint is bad of non-joinder of necessary party?   Whether the Complainant is entitled for any relief sought?
5.	What Order?

 

Our Answer to the above Points are:-

Point No.1 – Affirmative,

Point No.2 – Negative,,

Point No.3 – Affirmative,

Pont No.4 - Negative

Point No.5 – As per the final order.

                

R E A S O N S

 12.  POINT NO.1 and 2:  Here we proceed both the points together. It is the case of the Complainant that he had purchased a mobile handset SPICE full touch Dual SIM Phone 449-3G-White for consideration of Rs.4,999/- by placing an order to Home Shop 18 having a retail Invoice from North India Top Company Pvt. Ltd., This is an undisputed fact by the OP. The Complainant had alleged that the mobile handset stop functioning after 4-5 days of the delivery, thereafter it is stop functioning totally, a warranty of one year for given to the product hence the Complainant had called the OP on phone and informed about the non-functioning of the mobile handset and asked to replace the said mobile, but the OP adviced the Complainant to contact the Service Center at Davanagere, Bellary and Bagalkot. As per the Complaint, these Service Centers were not ready to accept the defective mobile handset for repair stating that they do not accept or entertain any Complaints of the OP. Hence, the Complainant had alleged that the OP had made deficiency in service and untrade practice.

 

13.         The learned counsel for OP submits that Home shop 18 and North India Top Company are two separate Companies they run their business by entering into MOU i.e. Home Shop 18 publish and advertise the product through TV channel, internet, SMS, mail and etc. and receive the order place by the Customers and products will be delivered by North India Company and the manufacturer of the said product (Mobile) is SPICE Mobile Company.

We heard both the counsels, the Complainant had produce the retail invoice placed on the record by which it clears that the Complainant had purchased mobile handset for consideration of Rs.4,999/- on 13.08.2014 addressed to the Complainant at Gadag, since it is very much clear that the jurisdiction lies at Gadag where the Complainant had received the product. Hence, this Forum had jurisdiction to try this Complaint. We do not ourselves with the findings and observations that the Complainant had taken defective mobile handset to the Service Center regarding non-functioning of the mobile even the Forum had asked the Complainant to file an application to appoint Expert to file and Expert opinion of the non-functioning of Mobile handset. The reason best known to him the counsel of the Complainant nor Complainant came forward to get the Expert opinion even after giving sufficient opportunity. The Complainant failed to file the report of the Expert/evidence with cogent evidence on record. It is hard to believe that the allegations made by the Complainant are true. Hence, the Complainant failed to prove that the OP had made deficiency in service. We answer Point No.1 in affirmative and Point No.2 in Negative.

                             

14.    POINT NO.3: The Complainant placed the order to purchase the handset with the OP. The same had been received on 18.08.2014. The said mobile handset started giving problem in its functions. Thereafter, the mobile set totally stop functioning, a warranty of one year was given to the said mobile by its manufacturer. The mobile handset was within a period of warranty.

 

        15.    The OP had stated that HS 18 Company just play a role of mediator by advertising through TV Channel, internet, SMS and receive the order placed by the customers and also receives payment on behalf of North India Top Company who deliver the products to the customers these Companies have delivered their part of job, merely delivering the product and collecting the amount does not seizes the responsibility of OP, but specifically in this case, the Complainant had failed to produce the Expert Report regarding defect of the said mobile and moreover that the warranty was given to the manufacturing defect by the manufacturing Company. The OP had raised his objection the Complaint is bad for non-joinder of necessary party i.e. Manufacturing Company of the mobile handset. Even after the sufficient opportunities were given to the Complainant to make the manufacturer as a party to the proceedings, the Complainant failed to take step in this issue, the manufacturing defect will be rectified by manufacturer or by their authorized service centers without manufacturer as a party it is not possible to adjudicate the Complaint without necessary party. Hence, we answer Point No.3 is affirmative.  

 

16.  POINT NO.4: As per the above discussion, pleadings, Complainant had not proved his case, hence is not entitled for relief as sought in the Complaint. Hence, we answer the Point No.4 in Negative.

 

17.   POINT NO.5:   For the reasons and discussion made above and finding on the above points, we proceed to pass a following:  

//ORDER//

1. This Complaint is dismissed.
2. Parties have to bear their own costs.
3. Send the copies of this order to the parties free of cost.

 (Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Court 22^nd day of June, 2016)

 

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President