Complaint filed on: 26.04.2016
Complaint Disposed on:15.07.2017
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT CHICKMAGALUR.
COMPLAINT NO.51/2016
DATED THIS THE 15th DAY OF JULY 2017
:PRESENT:
HON’BLE SRI RAVISHANKAR, B.A.L, LL.B., - PRESIDENT
HON’BLE SMT B.U.GEETHA, M. COM., LL.B., -MEMBER
HON’BLE SMT H. MANJULA, B.A.L., LL.B., - MEMBER
COMPLAINANT:
Rakshitha H.N,
S/o Ningachar H.M.,
Opp:Abhishek Theater,
Aldur, Chikmagalur T & D.
(By Sri/Smt. M.Dilip Kumar, Advocate)
V/s
OPPONENT:
1. Micromax Informatics Ltd.,
Micromax House, 90B,
Sector 18, Gurgoon 122015.
2. WS Retail Service Pvt. Ltd.,
No.42/1 & 43, Kacherakanahalli
village, Jaligenahalli Hobli,
Hosakote Taluk, Bangalore-560067.
3. Sri.Rama Telecommunications,
M.G Road, 6th Cross,
Near Anjaneya Temple,
Chikmagalur-577101.
(OP Nos.1 & 3 -Exparte)
(OP Nos.2 By Sri.M.P.Yatheesha, advocate)
By Hon’ble President Sri. Ravishankar,
:O R D E R:
The complainant filed this complaint U/s 12 of the Consumer Protection Act 1986 against OP Nos.1 to 3 alleging unfair trade practice in selling a defective mobile handset. Hence, prays for direction against Op Nos.1 to 3 to replace the mobile handset or in alternative to refund an amount of Rs.5,999/- which was paid towards purchase of the mobile handset along with compensation of Rs.50,000/- for unfair trade practice.
2. The brief facts of the complaint is that:
The complainant had purchased one MICROMAX EXPRESS 2 mobile handset through Flipkart online marketing (Op No.2) by paying Rs.5,999/- and Op No.1 is a manufacturer of the said mobile handset, the Op No.3 is the service centre of the said mobile handset. The Op No.1 being a manufacturer had given one year warranty at the time of purchase of the mobile handset. After purchase of the mobile handset complainant noticed that it is switching off automatically and hanged during opening the camera and complainant noticed that even the processor is very slow and the battery backup is low. Noticing all these defects complainant informed and handed over the mobile handset to the service centre to rectify the problem. But the said Op No.3 who is service centre had not rectified the defects. The complainant had handed over the mobile handset 3 times to the service centre, but even after service and repairs the defects were not rectified. Hence, the mobile handset manufactured by Op No.1 is a defective mobile handset and Op No.1 to 3 rendered unfair trade practice in selling defective handset to the complainant. Hence, complainant prays for direction against Op No.1 to 3 to replace the mobile handset or in alternative to refund an of Rs.5,999/- which was paid towards purchase of the mobile handset and compensation for unfair trade practice as prayed above.
3. After service of notice Op Nos.1 & 3 not appeared before this Forum to answer the allegation made by complainant. Hence, Op Nos.1 & 3 are placed exparte. Op No.2 appeared before this forum and filed version and contended that this Op No.2 is a WS Retail Services Private Limited, incorporated under the Companies Act 1956, having its registered office at Bangalore and also having its warehouse at 42/1 & 43, Kacheraknahalli Village, Jadigenahalli Hobli, Hoskote Taluk, Bangalore and this Op is a online reseller and registered seller on the market place web site www.flipkart.com, transaction between complainant and this Op is limited only to selling the products of various manufacturers to the customers. Accordingly, this Op had sold the mobile phone manufactured by Op No.1 and warranty issued by Op No.1 only against the manufacturing defects subject to terms and conditions determined by Op No.1 only and it is pertinent to note that this Op has not issued any warranty to the product sold by them, this Op has no facility or technical knowledge to ascertain the alleged defects in the mobile handset.
Op No.2 further contended that, this Op has 30 days replacement policy from the date of sale, if there is any defect found in the handset and if any handset was sent for replacement, the said defect was communicated and found within 30 days. But in this case complainant never approached this Op regarding the product within 30 days of replacement period. Hence, there is no any unfair trade practice on the part of this Op as alleged by complainant with respect to the sale of the product to the complainant.
This Op do not know that complainant had facing problems and he had approached Op No.3 for replacement of the mobile handset. Hence, they are not liable to pay any compensation to the complainant. Hence, prays for dismissal of the complaint.
4. Complainant filed affidavit and marked documents as Ex.P.1 to P.3. Op No.2 not filed any affidavit.
5. Heard the arguments.
6. In the proceedings, the following points do arise for our consideration and decision:
- Whether there is unfair trade practice on the part of OP Nos.1 to 3?
- Whether complainant entitled for any relief & what Order?
7. Our findings on the above points are as follows:-
- Point No.1: Affirmative.
- Point No.2: As per Order below.
: R E A S O N S :
POINT NOs. 1 & 2:
8. The case of the complainant is that, he had purchased one mobile handset from Op No.2 through online under website www.flipkart.com, the said mobile handset was manufactured by Op No.1. After purchase of the mobile handset he noticed there is a problem in battery backup and the handset is automatically switch off during the usage and also struck during opening the camera, even he noticed the processor is very slow. For which he approached Op No.3, who is the service provider of Op No.1, but the Op No.3 had not repaired the mobile handset, even after three attempts the defects were not rectified. Hence, alleges unfair trade practice on the part of Op No.1 to 3 in selling defective handset to the complainant and prays for replacement of the mobile handset or in alternative prays for refund of the amount paid towards mobile handset.
9. But Op No.1 & 3 not appeared before this Forum to answer the allegations made by complainant, even inspite of receipt of the cause notice. Anyhow Op No.2 appeared and contended that they are the registered seller of the products manufactured by different manufacturers through online marketing under flipkart.com, but their transaction only limits up to sale and delivery is completed. With respect to any defects found in the mobile handset the complainant is at liberty to send back the mobile handset within thirty days from the date of delivery, but complainant had not sent the mobile handset within stipulated time and there is no any unfair trade practice in selling mobile handset to the complainant. If any manufacturing defect found in the mobile handset it is only in between Op No.1 and complainant and there is no any warranty issued with respect to the manufacturing of the mobile handset. Hence, prays for dismissal of the complaint.
10. Complainant produced letter issued to Op No.1 to 3 with respect to the defects of the mobile handset marked as Ex.P.1, Retail Invoice for Rs.5,999/- issued by Op No.2 for having purchase of the mobile handset marked as Ex.P.2, Job card dated 27.02.2016 to show the complainant complained with respect to the defect of the mobile handset to the Ops, who is authorized service station of the Op No.1 marked as Ex.P.3 in support of his allegations.
11. On going through the said documents we learnt that the mobile handset is in custody of service station (Op No.3), the said mobile handset was not repaired by Op No.3 and we noticed that the complainant on 02.04.2016 had wrote a letter to all Op Nos.1 to 3 with respect to the defect found in the mobile handset, but neither the Ops have replied to the said letter nor bothered to rectify the defects in the mobile handset. Even the job card produced by complainant i.e., Ex.P.3 clearly established that there is a defect in the mobile handset. Hence, Op No.1 being a manufacturer of the mobile handset is liable to replace the defective mobile handset to the complainant. Here, Op No.2 is only a seller of the mobile handset and complainant after purchase of the mobile handset has not made any attempts for replacement of the mobile handset within thirty days from the date of delivery. Hence, we found there is no any unfair trade practice on the part of Op No.2 with respect to the manufacturing defect found in the mobile handset. Anyhow Op No.1 being a manufacturer is liable to replace the defective mobile handset to the complainant within one month and if he fails to replace the mobile handset he is liable to refund an amount of Rs.5,999/- to the complainant. The Op No.1 is also liable to pay compensation of Rs.5,000/- for unfair trade practice along with litigation expenses of Rs.1,000/- to the complainant. As such for the above said reasons, we answer the above point no.1 and 2 in the Affirmative and proceed to pass the following:-
: O R D E R :
- The complaint filed by the complainant is partly allowed.
- OP No.1 being a manufacturer is directed to replace the defective mobile handset with a new one having no defects within one month, if he fails to replace the mobile handset within the stipulated time he further directed to refund an amount of Rs.5,999/- (Five Thousand Nine Ninety Nine Rupees only) for unfair trade practice to the complainant within 15 days, failing which the payable amount shall carry interest @ 9% P.A. till realization.
- Op No.1 further directed to pay compensation of Rs.5,000/- (Five Thousand Rupees only) for unfair trade practice and litigation expenses Rs.1,000/- (One thousand Rupees only) to the complainant.
- The Complaint against Op No.2 & 3 is hereby dismissed.
- Send free copies of this order to both the parties.
(Dictated to the Stenographer transcribed typed by her, transcript corrected by me and then pronounced in Open Court on this the 15th day of July 2017).
(B.U.GEETHA) (H.MANJULA) (RAVISHANKAR)
Member Member President
ANNEXURES
Documents produced on behalf of the Complainant/S:
Ex.P.1 - Letter dtd:02.04.2016.
Ex.P.2 - Tax invoice.
Ex.P.3 - Job card.
Documents produced on behalf of the OP/S:
NIL
Dated:15.07.2017 President
District Consumer Forum,
Chikmagalur.
RMA
