BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 28th March 2014
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
COMPLAINT NO.258/2013
(Admitted on 28.9.2013)
Venkatramana Bhat,
S/o Madhava Bhat,
Aged about 79 years,
R/at Nandagokula,
Hosamaru, P.O. Kuriya,
Puttur Tq., D.K. …….. COMPLAINANT
(Advocate for Complainant: Sri.Sanjay D)
VERSUS
1. Managing Director,
L.G. Electronics India Pvt. Ltd.,
P. No. – 51 surajpur Kasna RD Udyog Vihar
Greater Noida:201306.
Uttar Pradesh.
2. Manager,
Cell Zone, Rekha Building,
Near Sri Lakshmi
Venkataramana Temple,
Main Road, Puttur-01. ……. OPPOSITE PARTIES
(Opposite Parties :Exparte)
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. ASHA SHETTY:
I. 1. This complaint is filed under Section 12 of the Consumer Protection Act alleging defect in goods against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The complainant stated that, he has purchased L.G. Mobile handset from the Opposite Party No.2 as per Tax Invoice No.113 dated 22.7.2011 for Rs.2,100/- and 1st Opposite Party is the Manufacturer and 2nd Opposite Party is the dealer. It is stated that, after 11 months of usage the phone was dead and complainant could not use it for the purpose of calling and thereafter it was taken to the 2nd Opposite Party for repair and Opposite party issued job card dated 19.6.2012. The complainant was enquired regarding the handset but 2nd Opposite Party failed set right the problem. Thereafter the complainant got issued legal notice but 2nd Opposite Party till this date not repaired the handset. Feeling aggrieved by the above, the Complainant filed the above complaint under Section 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 Rs.2,100 with 12% interest from 22.7.2011 till payment to the complainant along with compensation and costs of the proceedings.
II. 1. Version notice served to the Opposite Parties No.1 and 2 by R.P.A.D. Opposite Party No.1 and 2 inspite of receiving version notice neither appeared nor contested the case before this FORA. Hence, we have proceeded exparte as against the Opposite Party No.1 and 2. The acknowledgement marked as Court Doc. No.1 and 2.
III. 1. In support of the complaint, Mr.Venkatramana Bhat (CW1) – Complainant filed affidavit reiterating what has been stated in the complaint. Ex C1 to C9 were exhibited for the Complainant as listed in the annexure in detail. Opposite parties not filed any affidavit nor filed any documents and placed exparte.
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 L.G. Mobile handset namely G8-190 purchased on 22.7.2011 from the opposite parties suffers from any defect?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
We have considered the notes/oral arguments submitted by the complainant and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) & (iii): As per the final order.
REASONS
IV. 1. POINTS NO. (i) to (iii):
In the instant case, in order to substantiate the averments made in the complaint, the complainant filed evidence on affidavit and also produced documents i.e. Ex.C1 to C9. However, Ex C1 is the Original Tax Invoice dated 22.7.2011 reveals that the complainant had purchased L.G. Mobile handset namely G8-190 for a sum of Rs.2,100/- from the Opposite Party No.2 manufactured by 1st Opposite party in this case. The Ex C2 is the warranty card, wherein, its shows that the hand set has one year warranty from the date of purchase. Ex. C3 reveals that i.e. copy of the Job card dated 19.6.2012 i.e. within warranty period the handset of the complainant got damaged and handed over to the service center for repair. Ex. C4 is the office copy of the lawyer’s notice issued by complainant to the Opposite Party No.1 and 2 reveals that till this date the Opposite parties were not repaired the handset. Ex. C6 to C9 reveals that the legal notice were duly served to the opposite parties, despite of that the opposite parties not turned up nor responded to the complaint of the complainant. However, the above documents clinchingly proved that the handset sold by the opposite parties and manufactured by them found some defect within the warranty period and same has been handed over to the authorized service center to repair the same. But the Opposite parties ought to have atleast attempted to repair the handset and returned to the complainant but no such attempt has been made in this particular case.
However, we have noted that, in the instant case, the Opposite party No.1 and 2 inspite of served with the version notice issued by this FORA by RPAD the Opposite Parties not appeared nor contested the case on hand. The entire evidence placed by the complainant before this authority has not been contradicted nor controvered by the Opposite Parties. The unrebutted evidence requires no further proof.
Apart from the above, we also noted that, the complainant left with no other option lodged this complaint before this authority shows that the handset sold by the opposite parties are not in use and proved to be defective and hence the opposite parties are liable to refund the amount paid by the complainant as the defect found within the warranty period. It is known fact that, it is the primary responsibility of the manufacturer as well as dealer and service center to rectify the defects if any found within the warranty period. But in the instant case, the opposite parties not rectified the defects in the handset inspite of continues problems complained by the Complainant. We further observed that, the attitude of the Opposite Parties are not satisfactory because as a responsible manufacturer/seller ought to have appeared before this FORA and should have convinced that the handset sold by them are not defective and the same is in using condition. But it is surprise to note that the Opposite Parties insptie of receiving court notice not bothered to appear nor response to the notice. Therefore, we are of the considered opinion that, the handset manufactured by the Opposite party No.2 and sold by the opposite party No.1 is not upto the quality and proved to be defective and hence the opposites parties jointly and severally liable to refund the entire amount to the complainant because the service of the opposite parties in this case is not satisfactory as well as the attitude of the opposite parties made us to pass an order to refund the amount paid by the complainant in this regard.
Generally, if the 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 handset. As we know, the contract through dealer, privity of contract is with him. 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 handset in this case.
As far as damages are concerned, we are of the opinion that the negligence on the part of the opposite parties shows that they are not ready to repair the handset. Therefore, we hereby directed the opposite party No.1 and 2 are jointly and severally shall refund Rs.2,100/- paid by the complainant and also pay Rs.5,000/- as damages for the inconvenience and the harassment caused to the Complainant without attending the complaint. And also pay Rs.2,000/- (Rupees Two thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
In the result, we pass the following:
ORDER
The complaint is allowed. The Opposite party No.1 and 2 are jointly and severally shall refund Rs.2,100/- (Rupees Two thousand one hundred only) paid by the complainant and also pay Rs.5,000/- (Rupees Five thousand only) as damages. And also pay Rs.2,000/- (Rupees Two thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
In case of failure to pay the above mentioned amount within the stipulated time, the Opposite Parties are jointly and severally 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.
(Page No.1 to 8 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 28th day of March 2014)
PRESIDENT MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mr.Venkatramana Bhat – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 22.7.2011: Original Tax invoice.
Ex C2 – 22.7.2011: Original Warranty Card.
Ex C3 – 19.6.2012: Copy of the Job Card.
Ex C4 – 14.8.2012: O/c of the Regd. Lawyer’s notice.
Ex C5 – 17.8.2012: Postal acknowledgement of O.P.2.
Ex C6 – 30.8.2012: Unserved Regd. Post of O.P.No.1.
Ex C7 – 3.9.2012: O/c. of the regd. Lawyer’s notice.
Ex C8 & C9– 4.9.2012: Postal acknowledgment.
Court documents:
Doc.No.1 & 2: Postal Acknowledgements.
Witnesses examined on behalf of the Opposite Parties:
- Nil -
Documents produced on behalf of the Opposite Parties:
- Nil –
Dated:28.3.2014 PRESIDENT
