BEFORE THE  DIST. CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE: 31^st day of July 2015        

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member 

Complaint No.:28/2015    

Complainant/s:

Mallappa s/o.Huliyappa Halakatti,          Age.32 years, Occ: Private Service, R/o.Tta Hitachi Construction Machinary Ltd., Garag Road, Mummigatti, Dharwad.

(By Sri.G.R.Hiremath, Adv.)

v/s

Respondent/s:

1. IAVA International Ltd., - A -56, Sector 64, Noida 201 301. Uttar Pradesh

(By Sri.K.V.Badiger, Adv.)

2. City Mobiles, Dharwad Plaza, Opp. Tikare Road, Dharwad.

(By Sri.D.B.Kallanagoudar, Adv.)

3. Xolo Care, Switch En Automation, G-8, Kedar Plaza, Laxmi Matha Temple, Hubli 580020.

O R D E R

By: Shri. B.H.Shreeharsha : President.

1.     The complainant has filed this complaint claiming for a direction to the respondents to pay Rs.13,700/- to the complainant jointly and severally with interest @18% from 18.03.2014 till payment & to award compensation of Rs.12,700/- & Rs.2,000/- towards legal notice charges and to order for cost of the proceedings and to grant such other reliefs.

Brief facts of the case are as under:

2.     The case of the complainant is that, complainant on 18.03.2014 purchased Xylo mobile set manufactured by R1 through R2 under receipt no.18894 of model 1100 along with its battery & charger and accessories. When the complainant started to use the same the said mobile set was suffering from manufactural defects viz., no display, weak battery back up, display problem, without back cover & automatically switch off. Immediately complainant approached respondent and requested to set right the same. Though the R2 assured but went on postponing the same. On 22.09.2014 on the advise of respondent.2 the complainant went to R3 on 22.09.2014 i.e. authorized workshop   respondent.1 & handed over the same for repair. The respondent.3 issued job sheet undertaking to set right all the manufactural defects. Accordingly handed over the set. Thereafter inspite of repeated approaches the respondent went on postponing the same, did not repaired & returned the same which amounts to deficiency in service. Hence, the respondents are liable to refund the amount with interest and also pay compensation for mental agony. Similarly the respondents have replaced 2 sets to other 2 buyers when they approach the respondent with  a problem of manufactural defects of the sets of same make. Since the set is suffering from manufactural defects the complainant is not interested in using the same. Hence, desire to get refund of the value. Complainant issued legal notice on 07.11.2014 calling upon respondent to return amount with interest. Despite service of notice the respondent did not heather to refund the amount nor to reply for the notice. Hence, the complainant filed the instant complaint praying for the relief as sought.

3.     In response to the notice issued from this Forum the respondents.1&2 appeared and filed individual written version. While respondent.3 remained absent despite service of notice. Hence, placed exparte and exparte proceedings was initiated against respondent.3.  

4.     The respondent.1 by admitting detailed written version denied the maintainability of the complaint & dispute the relationship of consumer with the respondent & prays for dismissal of the complaint. Among  such other admissions and denials the answering respondent contended that the complainant approached the respondent with some other problems as per the job card accordingly R3 received the unit under job card by noting the complaints from complainant, but on seeing the mobile set the problems have arised due to water logging which is out of warranty coverage & is not due to manufactural defects. Since the defects noticed was not covered under the warranty the authorized mechanic demand for payment of charges, during that time the complainant did not agreed to pay the same nor to receive the mobile set and did not return and received the mobile set. While the respondent reveals under what circumstances and for what reason low battery back up & display back up problem and explain for what reason those shorts have arisen & were not due to manufactural defects & also denied immediately approach of R3 as contended in the complaint. The complainant approached the R3 only after 22.09.2014 after lapse of long time from the date of purchase even then the respondent attended and noticed the defects at the instance of the complainant only the respondent.3 could not return the same as the complainant failed to appear and to collect the mobile set by paying the charges as it was out of warranty coverage. Hence there does not arise question of deficiency in service & is made with ulterior motive to sympathies the Forum & to have relief of refund of the amount. The complainant is not entitled for refund of the amount and prays for dismissal of the complaint.

5.     While the R2 admits written version in the same line as the respondent.1 admits written version and denied all other complaint averments contending that answering respondent is only a dealer he neither liable for replacement or to compensate as prayed.  Further contended that there is no cause of action for the present complaint against the respondent and answering respondent is not a necessary party while denied the complaint paras 6, 7, 8, 9, 10 to 12 as incorrect and put the complainant to strict proof of the same & complaint averments are made with a deliberate intention to please the Hon’ble Forum & to have favorable order & to get refund of the amount. The complainant is not entitled for refund of the amount & prays for dismissal of the complaint.

6.     On the said pleadings the following points have arisen for consideration:

1. Whether complainant has proved that there was deficiency in service on the part of respondents ?
2. Whether complainant is entitled to the relief as claimed ?
3. To what relief the complainant is entitled ?

 Both have admits sworn to evidence affidavit, apart from admitting his evidence affidavit complainant admits 2 more additional witness evidence affidavits. Apart from evidence complainant also tendered interrogatories to the respondent. Respondents answered to the interrogatories. Both submits argument. The respondent apart from argument relied on citations. Heard. Perused the records.

Finding on points is as under.

1. Affirmative 
2. Accordingly  
3. As per order

Reasons

Points 1 and 2

 7.    On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact, the complainant had purchased the mobile set in question manufactured by respondent.1,  purchased the same through the dealer respondent.2 & respondent.3 is the authorized service center of the respondent.1 & the complainant had approached the respondent.3 as per the advise of the respondent.2 and complained with regard to complaints sought out.

8.     Now the question to be determined is, whether the mobile set in question is suffering from manufactural defects, non refund of the cost by the respondents amounts to a deficiency in service, if so, for what relief the complainant is entitled.

9.     By looking into the Ex.C2 job card issued by respondent.3 the complainant lodged complaint with a complaint for problems which are mentioned in the Ex.C2. Further perusal of the Ex.C2 no remarks of the respondent.3 found in the said document with regard to what are the defects in the complained set. As per the admissions of the complainant in the complaint the problems are as per Ex.C2. But as per the admission of the respondent.1 and 2 defects are not as shown in the Ex.C2 but is due to water logging and not covered with the warranty risk & is reparable on payment of the cost. For that complainant did not agreed & the device was left with the respondent.3 & is ready for delivery on payment of the repair charges.

10.   Even by looking into the evidence of the complainant it is not coming forth the defects shown in the Ex.C2 in the complaint mobile set. It is the complainant who approached this Forum seeking relief alleging the defects as noted in the Ex.C2. In rebuttal to the contentions of respondent that the defects is due to water logging the complainant did not adduced any expert evidence. On the request of the complainant this Forum provided opportunity to the complainant to establish his case by tendering interrogatories. For that both respondent.1 & 2  have replied. By summing up the evidence of interrogatories & replies it is not coming forth the complained mobile set is suffering from the defects as shown in the Ex.C2 & are due to manufactural defects. For the problems shown in the Ex.C2 the respondent.1 and 2 have contended that it is quite natural in the android mobile sets that too in which internet connections are operated the battery power will exhaust very early depending upon the handling of the internet and also even in the event internet was not used also battery power will exhaust due to internal operation of the network in a switch off stage also.

11.   Even after contentions & admitted by the respondent.1 and 2 that defects shot out are due to water logging, complainant did not approached the respondent.3 and verified whether it is set right or not. In the absence of approach and verification by the complainant with respondent.3 and by making mere allegation is not acceptable. However even before the Forum during the time of prosecution the respondents have said, the defects have been set out by removing water logging and is ready for usage and if the complainant is ready to pay the amount as it do not coverage warranty they are ready to deliver the same, but complainant did not shown his willingness except claiming refund. Even in both complaint as well as in the evidence complainant stick on to refund of the amount saying that, he is not interested in taking delivery of the same by paying the repair charges or he willing to receive replacement of new set except refund. In support of this contention of complainant, complainant adduced evidence of 2 other persons who have purchased different model of same mobile set make from the respondent.2 and in those cases the respondent.2 has replaced new mobile set so, he wants refund of the amount. For this the respondent.1 and 2 contended that the replacement of mobile sets in those cases are of different situation & circumstances, for that reason the complainant cannot claim for refund of the amount, this is of different case of water logging is due to carelessness and negligent usage & mishandling by the complainant hence, they will accept the  claim of the complainant and are not ready to either to replace or to refund the amount.

12.   However during the prosecution time the respondent.1 as a good gesture of their trade practice came forward and brought new set of same model and shown their offer to replace the same, but complainant did not accept their offer and rejected.

13.   By looking into the pleadings, evidence, the mode of apprendi of the complainant, complainant made his mind only to receive the cost of the mobile set and he is not interested in receiving either repaired set or replacement of the new one.

14.   As per the usual practice as well as, as per the observation of the apex courts the consumers having utilized the articles for sufficient time and claiming replacement or refund without adducing expert evidence or without proving manufactural defects in such circumstances complainants are not entitled for relief except for repair and replacement of defective parts only if it is the case of within warranty period and within coverage of warranty. Otherwise are only entitled for repair on payment of the charges. In the event of non proving manufactural defects and if sought for refund of the amount in such an event the complainant/consumers are entitled only for 3/4^th of the cost he paid. In this regard this Forum relies on 2014 (1) CPJ 51 Goa – ICICI Lambard General insurance co. ltd., Vs.Manjula Ben Vasantabai Mayalar, wherin it is held in case of use of the product the consumer is not entitled for entire amount but entitled for only 2/3^rd of the cost. In the instant case though complainant alleged that the defects have been shot out from the date of purchase dtd.18.03.2014, on perusal of Ex.C2 job sheet dt.22.09.2014 the complainant approached the respondent after lapse of 1 month from the date of purchase that too with a problem of water logging. The complainant did not adduced cogent evidence to establish his alleged defects as per the problems noted in Ex.C2. The respondent in support of their case relied on case law in the case of liquid locked & in the absence of expert evidence the Hon’ble State Commission held- it is due to negligence or carelessness on the part of consumer replacement is not acceptable – K.L.Sharma vs. Janata Electronics & Anr. 2012 (2) CPJ Pg.10 (HP).

15.   By above evidence & discussions the complainant failed to establish manufactural defects and also the defects what he alleged. Hence, he is not entitled for the relief as claimed except for the relief as held by their lordshps in the judgment 2014 (1) CPJ 51 (Goa).

16.  In view of the above discussions we have arrived and proceed to held issue.1 and 2 in affirmative and accordingly.

17.   Point.3: In view of the finding on points 1 and 2 proceeded to pass the following 

Order

        The complaint is partly allowed. The respondents 1 to 3 are directed jointly and severally to refund 3/4^th of the cost paid under receipt Ex.C1 along with Rs.500/- towards compensation and Rs.500/- towards cost of the proceedings within 30 days from the date of receipt of copy of this order. Failing to comply the same, the said amount shall carry interest @9% P.A. from thereon till realization. The respondent.1 can collect accessories which are deposited in the Forum after making payment.

(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 31^st day of July 2015)

(Smt.M.Vijayalaxmi)                                      (Sri.B.H.Shreeharsha)

Member                                                           President

Dist.Consumer Forum                                    Dist.Consumer Forum

MSR