BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 30th OCTOBER 2015
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : HON’BLE MEMBER
COMPLAINT NO. 131/2014
(Admitted on 23.04.2014)
Sri Venugopal Acharya,
S/o Sri. Bhaskar Acharya,
Aged about 37 years,
Residing at Puchchekere House,
Manchi Village and post,
Bantwal Taluk …….. COMPLAINANT
(Advocate for Complainant: Sri Ravindra)
VERSUS
1. M/s Gavrav Electronics,
Rep by its Manager,
The Lifestyle Showroom,
Saibeen Complex, Lalbagh,
Mangalore-575004.
2. M/s Lava International Pvt., Ltd.,
Rep by its Managing Director,
A-56, Sector 64,
Noida, Uttarpradesh ……OPPOSITE PARTIES.
(Advocate for Opposite party No.1: Sri K. Govinda Bhat)
(Opposite party No. 2 : Ex-parte)
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. ASHA SHETTY
- 1. This complaint is filed under section 12 of the Consumer Protection Act alleging defect in hand set as against the opposite parties claiming certain reliefs.
The brief facts of the case are as under:
The complainant purchased mobile phones set along with accessories on 27.01.2014, by paying Rs. 14,700/-. The said hand set had 1 year warranty. The opposite party issue invoice bill.
It is stated that, since day one of purchase of the above hand set it is noticed that, suddenly heating, automatically the volume of sound slowly decreased, etc. Thereafter on 7.2.2014 handed over the hand set to the opposite party for repair. Opposite parties promised to repair the same and it will be returned within 5 days. But even after 1 month set was not returned. It is stated that, the hand set sold and manufactured by opposite parties is defective and hence above complaint filed U/sec 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 a sum of Rs. 14,700/- along with interest and compensation and cost of the proceedings.
II. 1. Version notice served to the opposite parties. Opposite party No. 2 in spite of receiving version notice not appeared nor contested the case till this date, hence the opposite party No. 2 placed Exparte and opposite party No. 1 appeared through their counsel filed version denied the entire allegations alleged in the complaint and stated that, the opposite party is dealer warranty cannot be inforce against this Opposite Party. The manufacturer alone is responsible. The set is damaged on account miss handling of the set the same is not covered under warranty and sought for dismissal of the complaint.
III. 1. In support of the complaint, Sri Venugopal Acharya, (CW1) the Complainant filed affidavit reiterating what has been stated in the complaint and produced Ex. C1 to C6.
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 XOLO MOBILE hand set purchased on 27.01.2014 from the opposite parties found to be defective?-
- Whether the complainant proves that the opposite parties have committed deficiency in service?
- If so, whether the complainant is entitled for the reliefs claimed?
- 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) and (ii): Affirmative
Point No. (iii) and (iv). As per the final order.
REASONS
IV. 1. POINTS No. (i) TO (iv) : The facts which are admitted is that, the complainant purchased the hand set on 27.1.2014 from the opposite party by paying Rs. 14,700/-and covered under 1 year warranty. However the complainant filed affidavit and also produced Ex C-1 to C-6, wherein, the Ex C1 is the Tax invoice bill and EX C-2 is warranty Card. The manufacturer who manufactured the hand set is not appeared before the FORA. However, the Opposite Party No. 1 is the dealer took a contention that this Opposite Party is not responsible only the manufacturer is responsible and also contended that the damage caused to the hand set is physical damage. Now a controversy arises, how the Opposite Parties proves that it is a physical damage? Except the oral assertion nothing has been placed before FORA to show that the damage caused to the hand set is physical damage be that as it may. There is no explanation has to why the service center as not been examined nor produced any report to show that the damage is physical damages caused by the complainant. On contrary it is proved that the hand set had a problem as alleged in the complaint within the warranty period and not in use. On perusing evidence available on record, we find that the hand set was warranty as per Ex C-2 and within 2 months the date of purchase the hand set found defect mentioned in the complaint. The Opposite Parties also failed to appreciate that hand set has got repaired and further the complainant has not been called for to collect the hand set. However the entire burden lies on the Opposite Party to substantiate their version but no attempt has been made. Since the hand set not repaired and found defect, in the result, we hold that the hand set is defective and not fit for use.
Generally, if the mobile 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 mobile handset. As we know, the contract through dealer/service provider, privity of contract is with them. 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 mobile hand set in this case.
In view of the aforesaid reasons, we hold that, the Opposite Party No. 1 and 2 jointly and severally shall refund the cost of the mobile handset Rs. 14,700/-(Rupees Foruteen thousand seven hundred only) by retaining the defective handset and also pay of Rs. 10,000/- as damages to the complainant for the inconvenience and harassment caused. Further pay Rs. 3,000/- as litigation expenses. Payment shall be made within 30 days from the date of receipt of this order.
In the result, we pass the following:
ORDER
The complaint is allowed. The opposite parties No. 1 and 2 are jointly and severally shall pay the complainant an amount of ₹ 14,700 / by retaining the defective hand set and also pay Rs. 10,000/- as compensation and also pay Rs. 3,000/- as litigation expenses. Payment shall be made within 30 days from the date of receipt of this order.
In case of failure to pay the above mentioned amount within the stipulated time, the Opposite Party No. 1 and 2 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 30st day of OCTOBER 2015)
PRESIDENT MEMBER
(SMT. ASHA SHETTY) (SMT. LAVANYA M.RAI)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW-1 : Sri Venugopal Acharya – Complainant.
Documents produced on behalf of the Complainant:
Ex. C1 : True copy of Tax Invoice Bill bearing No. 5457.
dated 27.01.2014.
Ex. C2 : True copy of Warranty Card.
Ex. C3 : The Office copy of the Lawyer’s Notice
dated 06.03.2014.
Ex. C4 : Postal acknowledgments.
Ex. C5 : Acknowledgment due card duly signed by the Opposite Party.
Ex. C6 : Reply notice was sent by the Opposite Party
on 14th March 2014.
Witnesses examined on behalf of the Opposite Party:
- Nil -
Documents produced on behalf of the Opposite Party:
- Nil -
Dated: 30.10.2015. PRESIDENT
ORDER
The complaint is allowed. The opposite parties No. 1 and 2 jointly and severally shall pay the complainant an amount of ₹ 14,700 / by retaining the defective hand set and also pay Rs. 10,000/- as compensation and also pay Rs. 3,000/- as litigation expenses. Payment shall be made within 30 days from the date of receipt of this order.
In case of failure to pay the above mentioned amount within the stipulated time, the Opposite Party No. 1 and 2 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 30st day of OCTOBER 2015)
PRESIDENT MEMBER
(SMT. ASHA SHETTY) (SMT. LAVANYA M.RAI)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
