BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT

SHRI. G. SIVAPRASAD                              :         PRESIDENT

SMT. SATHI. R                                  :         MEMBER

SMT. LIJU B. NAIR                           :         MEMBER

                                             C.C.No:  87/2014        filed on  03/03/2014

                                          Dated: 30..09..2014

Complainant:

Sathya Kumar, S/o Mariyappan Asari, TC 19/1112, Grace Bhavan, Kamaraj Nagar, Thamalam, Poojappura – P.O., Thiruvananthapuram – 695 012.

         (Party in person)

Opposite parties:

1. Micromax Informatics Ltd., 21/14A, Phase-II, Naraina Industrial Area, Delhi – 110 028.

2. M/s. Smart Solutions (Ker) Saphire Plaza TC 11/1955, Plamoodu, Pattom, Thiruvananthapuram – 695 004.

         (By Adv. N. Vijayakumar)

3. Hotline Communications, TC 38/497, Chenthittai, Opp. HP Petrol Pump, Thiruvananthapuram – 36.

This C.C having been heard on 25..09..2014, the Forum on 30..09..2014 delivered the following:

ORDER

SHRI. G. SIVAPRASAD, PRESIDENT:

         The facts leading to the filing of the complaint are that,  complainant had purchased a mobile phone (Micromax A-26 with IME No:911307-25-479720-9 ) on 26/11/2013 for an amount of Rs.3,600/- from the 3^rd opposite party Hotline Communications, Chenthittai vide invoice No.S1956 dated 26/11/2013, that the said mobile phone was having one year warranty from the date of its purchase, that the said phone became faulty and complainant was not in a position to use the same and accordingly complainant approached the 2^nd opposite party, M/s. Smart Solutions (Ker), Pattom on 14/12/2003 for rectifying the defects, that thereafter complainant approached the 2^nd opposite party several times but opposite party made false excuses, that complainant again approached the 3^rd opposite party to replace the Micromax phone or to reimburse the price of the mobile handset, that 3^rd opposite party did not take any action upon it, that 1^st opposite party is the Micromax Informatics Ltd., Delhi, that opposite parties are bound and liable to replace the handset since the defect with respect to the handset has occurred during the period of warranty, that the act of the opposite parties amount to deficiency in service and unfair trade practice. Hence this complaint to direct opposite parties to replace the complainant’s defective mobile handset with a new fault free handset or to reimburse the price of the mobile handset with interest along with compensation.

         2. On being served, 3^rd opposite party filed affidavit. Opposite parties 1 & 2 did not turn up nor did they file version. Opposite parties 1 & 2 remained exparte.

         3. 3^rd opposite party filed affidavit stating that complainant had purchased a Micromax mobile phone from the 3^rd opposite party and date of purchase and price of phone stated in the complaint is correct, that the said phone is having warranty that servicing and repairing are to be done by opposite parties 1 & 2 and 3^rd opposite party is not liable to replace the handset or repair it.

         4. The points that arise for consideration are:

         (i) Whether the mobile phone is having manufacturing defect and whether defect is repairable?

       (ii) Whether complainant is entitled to get the handset replaced with new one or get refund of the price of handset along with compensation?

         In support of the complaint, complainant has filed proof affidavit and has marked Exts. P1 to P3.

         5. Points (i) & (ii):  There is no dispute on the point that complainant had purchased Micromax mobile phone on 26/11/2013 for Rs. 3,600/- from the 3^rd opposite party. It has been contended by the complainant that the said handset became faulty within one month of its purchase and the same has been entrusted to the 2^nd opposite party service centre for repair. It has further been contended by the complainant that 2^nd opposite party neither repaired nor replaced the defective one with new one even after repeated request. Complainant has  led evidence  by oral  testimony of  PW1 and  Exts. P1 to P3.  Ext. P1 is the copy of the invoice dated 26/11/2013 issued by the 3^rd opposite party, Hotline Communications. In Ext.P1 the name of the buyer mentioned is Sathya Kumar. As per Ext.P1 complainant purchased a product Micromax A-26 on 26/11/2013 for Rs. 3,600/-. Ext. P2 is the copy of the material received note dated 14/12/2013 issued by 2^nd opposite party M/s. Smart Solutions (Ker). As per Ext.P2 symptom is 4910 display mechanically broken. Ext.P3 is the customer details cum warranty card. The warranty is given by Micromax, the 1^st opposite party. Admittedly, the said handset was purchased from 3^rd opposite party, which was manufactured by the 1^st opposite party, the product is now with the 2^nd opposite party service centre. Complainant entrusted the same within one month of its purchase to the 2^nd opposite party, since then 9 months have lapsed. Complainant could not use the said phone. Opposite party has not returned the same to the complainant, since the said phone is with 2^nd opposite party, complainant is not in a position to invoke Section 13(c) of the Consumer Protection Act. Opposite parties 1 & 2 neither filed version nor challenged the case of the complainant. 3^rd opposite party contends that it has to be repaired or replaced with new one by opposite parties 1 & 2, 3^rd opposite party is the dealer. It is settled position that there is no principle agency relationship between manufacturer and the dealer when manufacturer sells its product to the dealer. The privity of contract is between the dealer and the customer, as such dealer cannot escape from his liability when the product sold by them suffered defect within the period of warranty. Since the mobile phone developed trouble within one month of its purchase and it was handed over to the 2^nd opposite party service centre for repair on 14/12/2013 and the same was not been repaired and returned to the customer, we are of the view that the mobile phone purchased by the complainant from the 3^rd opposite party manufactured by the 1^st opposite party is defective which is still irrepairable. The onus of proof would lay on the opposite parties to show that the mobile phone supplied by the 3^rd opposite party is having no defects. Opposite parties failed to do so. Hence we find complainant is entitled to get the defective handset replaced with a new fault free handset. The action of the opposite parties in not repairing and returning the same within a reasonable time amounts to deficiency in service for which complainant is entitled to get compensation.

         In the result, complaint is allowed. Opposite parties are jointly and severally liable to replace the defective Micromax A-26 handset with a new fault free handset to the complainant within one month from the date of receipt of this Order along with Rs.1,000/- as compensation, failing which opposite parties are jointly and severally liable to refund the price of the mobile handset amounting to Rs.3,600/- along with Rs.1,000/- as compensation to the complainant. Parties shall bear and suffer their respective costs.     

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

         Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of September 2014.

       Sd/-G. SIVAPRASAD         :       PRESIDENT

                                  Sd/-R. SATHI                    :       MEMBER

Ad.                            Sd/- LIJU B. NAIR             :       MEMBER

C.C No. 87/2014

APPENDIX

  I. Complainant’s witness          :                N I L

 II. Complainant’s documents:

P1    :  Copy of the invoice dated 26/11/2013 issued by Hotline Communications

P2    :  Copy of the material received note dated 14/12/2013 issued by 2^nd opposite party

P3    :  Customer details and warranty card

III. Opposite parties’ witness     :       N I L

IV. Opposite parties’ documents        :       N I L

Sd/- PRESIDENT

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