BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 31^st October 2014

PRESENT

           SMT. ASHA SHETTY           :  HON’BLE PRESIDENT

           SMT.LAVANYA M. RAI       :   MEMBER                   

COMPLAINT NO.230/2013

(Admitted on 7.9.2013)

Mr.Ramakrishna Baliga,

So B. Ganapathi Baliga,

Aged 51 years,

Residing at Co Damodar Agency,

Lower Carstreet,

Mangalore 575 001.                          …….. COMPLAINANT
(Advocate for Complainant :Sri Keshav Nandodi)

          VERSUS

1. Micromax,

    Ms Bhagavathi Products Pvt. Ltd.,

    Plot No.18, Sector 2, IIE,

    Panthnagara, Rudrapur, V.S. Nagar,

    Uttarkhand 253 153,

    Represented by its

    Authorised Signatory.

2. M/s Numeric Mobile Pt (Mangalore)

    No.2, Essel Towers,

    Bunts Hostel Circle,

    Mangalore- 575 003,

    Represented by its

    Authorized Signatory.

3. M/s Reliance Digital Retail Ltd.,

    SF 16, 27A, 2^nd Floor, City Center,

    K.S. Rao Road, Hampankatta,

    Mangalore – 575 001.

    Represented by its

    Authorized Signatory.     ……OPPOSITE PARTIES

(Opposite Party No.1 and 2: Exparte)

(Advocate for Opposite Party No.3:Sri K.Dayananda Rai)

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 as against the Opposite Parties claiming certain reliefs. 

The brief facts of the case are as under:

The complainant stated that, the complainant purchased the Micromax brand WIFI TAB from Opposite Party No.3 on 4.5.2013 as per Invoice No.000939  by paying Rs.6,999/-.

The complainant stated that immediately after purchase of the said Tab, it was during the 1^st week of June 2013 it was not able to switch on and asked the Opposite party to rectify the same.  After that the complainant visited the Opposite Party 3 to 4 times and the Opposite party No.3 informed the complainant to approach Opposite Party No.2 to set right the defects and Opposite party No.2 issued job card dated 7.6.2013 and told the complainant to come after a week.  After one week the Opposite Party No.2 handed over the tab but the said tab used to give trouble very often, again handed over to rectify the defects.  Inspite of several approach the repeated problems was continued and contended that the tab has manufacturing defect and hence 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 replace the Micromax Tab with new one and to the complainant along with compensation and cost of the proceedings.

II.      1. Version notice served to the Opposite Parties No.1 to 3 by R.P.A.D. Opposite Party No.1 & 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.2 & 3.  The acknowledgement marked as Court Doc. No.1 & 2. 

          Opposite Party No.3 appeared through their counsel filed version, wherein, denied the manufacturing defect and stated that when the complainant approached this opposite party asked the complainant to approach Opposite party No.2 to rectify the defects and the defects found in the product is governed by the terms and conditions of the warranty card issued by the Opposite Party No.1 and Opposite Party No.3 is not liable to comply the demand made by the complainant and denied the deficiency and prayed for dismissal of the complaint.

III.     1.  In support of the complaint, Mr.Ramakrishna Baliga (CW1) – Complainant filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him and documents marked at Ex. C1 to C6. Opposite Parties not lead any evidence.

In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainant proves that the Micromax Tab purchased on 4.5.2013 from the Opposite Parties found to be defective?

2. Whether the Complainant proves that the Opposite Parties have committed deficiency in service?

3. If so, whether the Complainant is entitled for the reliefs claimed?

4. What order?

                We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:

                             Point No.(i) & (ii): Affirmative.

                               Point No.(iii) & (iv): As per the final order.  

REASONS

IV.     1.  POINTS NO. (i) to (iv):

             In the instant case, the facts which are admitted is that the complainant purchased Micromax brand WIFI TAB  from Opposite Party No.3 on 4.5.2013 as per Invoice No.000939 by paying Rs.6,999/- as per Ex.C1. The said product was manufactured by Opposite Party No.1.

            Now the points are in dispute between parties before this FORA is that, the complainant contended that the above said TAB was not able to switch on and approached the service center several times with the continuous problem, but the above said TAB giving trouble due to manufacturing defect and could not use the said TAB.  In support of his allegations the complainant produced Job Cards. However, the Opposite Party No.1 and 2 are placed exparte. Opposite Party No.3 contended they are not liable as per the terms and conditions of the warranty.

On perusing the oral as well as documentary evidence available on record, we find that, admittedly the TAB was found defective as per job sheet produced by the complainant Ex.C2 to C4.  Opposite Party No.3 also denied the manufacturing defect found in the said TAB but the only contention is that, Opposite Party No.3 is not liable as per terms and conditions of the warranty.  However, Opposite Party No.1 and 2 inspite of receiving version notice not appeared nor contested the case the entire evidence placed on record is not contradicted nor controverted by the Opposite Party No.1 and 2.  Under that circumstances, we hold that the job card produced by the complainant proved beyond doubt that the TAB purchased by the complainant has some defect and thereby the complainant could not use the same.

Generally, if the TAB 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 TAB.  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 TAB in this case.

In view of the aforesaid reasons, we hold that, the Opposite Party No.1 to 3 are jointly and severally liable to refund the amount for a sum of Rs.6,999/- by taking back the defective TAB and also the Opposite parties are liable to pay Rs.5,000/- (Rupees Five Thousand only) as damages to the complainant for the inconvenience and harassment caused 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. Opposite Party No.1 to 3 are jointly and severally shall refund of Rs.6,999/- (Rupees Six thousand nine hundred ninety nine only) i.e. cost of the Micromax WIFI TAB to the Complainant by taking back the defective TAB.  Further 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 Party 1 to 3 are 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 7 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 31^st day of October 2014)

                   PRESIDENT                         MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Mr.Ramakrishna Baliga – Complainant.

Documents produced on behalf of the Complainant:

Ex C1: 4.5.2013: Copy of t he Bill issued by O.P.No.3.

Ex C2: 7.6.2013: Copy of Job Card issued by 2^nd O.P.

Ex C3: 4.7.2013: Copy of job Card issued by 2^nd O.P.

Ex C4:20.7.2013: Copy of job card issued by 2^nd O.P.

Ex C5: 26.7.2013: O/c of legal notice issued to O.Ps.

Ex C6: Original postal A/d of legal notice to O.P.

COURT DOCUMENTS:

DOC.No.1 and 2: Postal Acknowledgments.

Witnesses examined on behalf of the Opposite Parties:

- Nil –

Documents produced on behalf of the Opposite Parties:    

- Nil –

Dated:31-10-2014                                  PRESIDENT