BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Dated this the 16^th day of March 2018

Filed on : 07-10-2016

PRESENT:

Shri. Cherian K. Kuriakose, President.

Shri. Sheen Jose, Member.

Smt. Beena Kumari V.K. Member.

CC.No.570/2016

Between

Mohammed Ishaq, : Complainant

S/o. K.A. Sulaiman, (By Adv. Jeswin P. Varghese,

Kanjirathingal house, Vattoly Complex, Kompara Junction,

Eloor (East), Cochin-18)

Udyogamandal P.O.,

Ernakulam.

And

1. M/s. Micromax Informatics : Opposite parties

Ltd., B-82, Mayapuri Industrial (party-in-person)

Area, Phase -1, New Delhi,

110 064, Rep. by the

Managing Director.

2.The Manager, M/s. AARJAY

Associates, Service Center of

M/s. Micromax Informatics Ltd.,

1^st floor, Kochaneth Building,

Janatha Junction,

Banerji road, Palarivattom,

Ernakulam, Cochin -25.

3. M/s. WS Retail Services

Pvt Ltd., Ozone Manay Tech

Park, No. 56/18, 'B' Block,

9^th floor, Garvebhavipalya,

Hosur road, Bangalore-68,

Pin-560 068,

Rep. by the Managing Director.

O R D E R

Cherian K. Kuriakose, President.

Complainant's case

2. The complainant purchased a Micro Max EG 111duet II mobile phone manufactured by the 1^st opposite party on payment of Rs. 9,999/- through Flipcart as per retail invoice dated 06-11-2014 issued by the 3^rd opposite party seller. The mobile phone had a warranty of one year and it had CDMA function. During the warranty period the mobile phone became defunct on 22-05-2015 and it was given for repair to the 2^nd opposite party service agent of the manufacturer. The 2^nd opposite party had sent the phone to the 1^st opposite party for repairs, but it came back without rectifying the defects. The defects noted was an inherent manufacturing defects and therefore it could not be rectified . The complainant thereafter issued a legal notice to the 1^st opposite party on 28-03-2016 to replace the defective mobile or to refund the price paid Rs. 9,999/- with interest. The 1^st opposite party had contacted the counsel for the complainant and offered to replace the phone and ask the complainant to contact the 2^nd opposite party for receive the new mobile phone as against the defective phone given for repairs. When the complainant contacted the 2^nd opposite party many occasions, the 2^nd opposite party had informed the complainant that they did not get back the phone from the 1^st opposite party. The 3^rd opposite party had sold the mobile phone to the complainant which was defective, and that would amount to unfair trade practice. Therefore all the opposite parties are liable to get the mobile phone replaced as it was found defective during the warranty period. The complainant therefore seeks refund of Rs. 9,999/- with interest @ 12% p.a. being the cost of the mobile phone in addition to Rs. 20,000/- towards the compensation.

3. Notices were issued to the opposite parties. The 3^rd opposite party appeared and resisted the complaint by filing a version. The 1^st and 2^nd opposite parties were served but did not appear to contest the matter.

4. In the version of the 3^rd opposite party inter-alia, it was contended that the complaint is not maintainable and that the 3^rd opposite party did not provide any warranty for the product as it was only delivering the sealed box to the complainant. It was also contended that the grievance of the complainant should have been only against the manufacturer of the product. Since the opposite party No. 3 neither the manufacturer nor has any control over the authorized service centres appointed by the manufacturer. It was also contended that the dealer or retailer can not be held liable for the defects in the goods produced and the same is decided in the following decisions and hence this complaint is not maintainable against the 3^rd opposite party and since dismissal of the complaint.

5. The following issues were settled for consideration.

1. 1. 1. Whether the complainant proved that opposite parties are committed deficiency in service as alleged?

      2. Reliefs and costs

6. The evidence in this case consists of the documentary evidence Exbts. A1 to A5 on the side of the complainant. The opposite parties did not adduce any evidence.

7. Heard the learned counsel for the complainant and opposite party No. 3.

8. Issue No. i. The complainant purchased a mobile phone manufactured by the 1^st opposite party having IMEI No. xxxx54629 on 06-11-2014 as per Exbt. A1 invoice. The phone became defective and it was entrusted for service to the 2^nd opposite party on 22-05-2015 with the complaint that the Cellular Access (CEB) was not working. According to the complainant the mobile phone entrusted to the 2^nd opposite party was return without any repairs and it was continued to be defective. Therefore the complainant caused to issue Exbt. A3 legal notice to the 1^st opposite party and it was sent as per Exbt. A4 postal receipt and it was received by the 1^st opposite party on 07-04-2016 as per Exbt. A5.

9. In the complaint it is specific case of the complainant in para 4 and 5 that the complainant was given an offer to get the mobilel phone replaced by the 1^st opposite party and further that the 2^nd opposite party had informed the complainant that the 1^st opposite party did not sent any new mobile phone for replacement.

10. The complainant did not produce mobile phone before this Forum as according to the complainant it was entrusted to the 2^nd opposite party. The complainant did not take any steps to get the mobile phone back from the 2^nd opposite party by applying for the same through this Forum. There is nothing in evidence to show that there was no manufacturing defects for the mobile phone allegedly purchased by the complainant as per Exbt. A1. The complainant did not make any attempt to prove that the 1^st opposite party had agreed to replace the phone as contended in para 4 of the complaint. The complainant did not make any attempt to prove that the 1^st opposite party had agreed to replace the phone as contended in para 4 of the complaint. The complainant also did not prove that the 2^nd opposite party had replied to the complainant that the 1^st opposite party did not make any replacement of the mobile phone by a new phone, so as to hand it over to the complainant.

11. In the absence of any evidence with regard to the manufacturing defect of the phone and the undertaking of the 1^st opposite party for replacement, we find that the complaint is liable to be dismissed, finding the issue negative to the complainant.

12. Having found issue No. i against the complainant we find that the complaint is liable to be dismissed and is accordingly dismissed.

Pronounced in the open Forum on this the 16th day of March 2018.

Sd/-

Cherian K. Kuriakose, President.

Sd/-

Sheen Jose, Member.

Sd/-

Beena Kumari V.K., Member.

Forwarded/By Order,

Senior Superintendent.

Appendix

Complainant's Exhibits

Exbt. A1 : Copy of retail Invoice dt. 06-11-2014

A2 : Copy of job sheet dt. 22-05-2015

A3 : Copy of legal notice dt. 28-03-2016

A4 : Copy of postal receipt

A5 : Copy of A.D. Card

Opposite party's Exhibits : Nil

Copy of order despatched on :

By Post: By Hand: