Complaint filed on: 16.06.2015
Complaint Disposed on:04.02.2017
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AT CHICKMAGALUR.
COMPLAINT NO.99/2015
DATED THIS THE 4th DAY OF FEBRUARY 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:
Sri.M.S Vinay,
S/o Late Suresh,
Aged about 38 years,
Businessman,
R/o Arishinaguppe Village,
Mallenahally Post,
Chikamagaluru Taluk & District.
(By Sri/Smt. K.K Lokesh, Advocate)
V/s
OPPONENT:
1. M/s.Sangeetha Mobiles Pvt. Ltd.,
Branch office,
Next to Manjesh Traders,
M.G Road, Chikmagalur-577101,
Karnataka.
2. M/s. Samsung India Electronics
Pvt. Ltd., B-1 Sector 81 Phase
2 Noida District,Gautam Buddh
Nagar, Uttar Pradesh.
(OP-1 -Exparte)
(OP-2 By Sri/Smt. T.N.Ramesh., Advocate)
By Hon’ble Member Smt.B.U Geetha,
:O R D E R:
The complainant filed this complaint U/s 12 of the Consumer Protection Act 1986 against OP Nos. 1 & 2 alleging unfair trade practice in selling defecting handset to the complainant. Hence, prays for direction against OP Nos. 1 & 2 to reimburse the amount of Rs.16,905/- together with interest or to replace new mobile handset of the same model along with compensation of Rs.10,000/- for unfair trade practice.
2. The brief facts of the complaint is that:
The complainant is businessman, running home stay, for his business purpose he purchases a Samasung mobile handset on 26.01.2015 for Rs.16,905/-, after purchase of three days the complainant find mechanical defects as poor quality pictures, having defects hanging for longer time, for that he approached Op no.1 and complaint the above said defects in the mobile handset. The Op no.1 attended the defects and returned the handset to the complainant, but again same defects continued again, two times rectifications made by Op, but he failed to rectify the mechanical defects of the handset of the complainant.
The complainant is a businessman, running a coffee shop on Arishinaguppe and also running a home stay, due to defect in the handset complainant deprived off use of mobile and thereby has sustained loss in his business due to lack of communication. Therefore, complainant got issued a legal notice dated 09.02.2015 calling upon to reimburse the entire amount of Rs.16,905/- along with compensation of Rs.10,000/-. The said notice is duly served on Op no.1 and 2, but they have not complied with the demands of the legal notice. Hence, complainant prays for direction against Op no.1 and 2 to repay amount of Rs.16905/- or to replace with new mobile handset of the same model along with compensation of Rs.10,000/- for damages among the money etc.,
3. Notice issued by this forum against Op no.1 and 2 was duly served, but Op no.1 has not appeared before this Hon’ble forum to take any defense. Hence, Op no.1 placed exparte. Op no.2 has appeared through his counsel and filed his version and he contended that complainant does not come within the parameter of consumer as defined under C.P Act. Op no.2 further states that, as statement of complainant, that he is businessman, running home stay as well as coffee shop so it is a commercial business, therefore he is not at all consumer as per from filing and prosecuting the matter before this Hon’ble forum. Op no.2 further stated that complainant has not produced any warranty card and warranty is not applicable and when the product is used for commercial purpose, he stated that as per information collected from the service centre. The complainant approached the company service centre only on 02.02.2015. After inspection of the device the technician found software issue. As such the service centre taken steps for upgrading software and set made OK for normal function.
Op.2 further submits that in fact there is no evidence that complainant is well versed as well as accustomed to certify himself about the existence of manufacture defect in his device. Apart from that, there is no third party expert evidence who deals with similar product to substantiate the statement of the complainant that his device is suffering from mechanical defect only as alleged in the complaint. He further stated that, the said business run by complainant is not for livelihood and it is not carried to on commercial motive earn to profit. Hence, prays that this Hon’ble forum by pleased to reject the complaint with exemplary cost in the interest of justice.
4. The complainant filed affidavit and marked the documents as Ex.P1 to P4 and M.O. 1. The OP.2 also filed affidavit and marked document as Ex.R.1.
5. Heard the arguments:
6. In the proceedings, the following points do arise for our consideration and decision:
- Whether there is unfair trade practice in selling defective handset to the complainant?
- 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.It is true that as per Ex.P.1 cash paid receipt, the complainant had purchased the Samsung mobile from Op no.1 by paying Rs.16,905/-. Complainant issued legal notice dated 09.02.2015 it is marked as Ex.P.2 in which complainant called upon Op’s to reimburse entire amount of Rs.16,905/- or to replace the mobile handset with new one and also damages of Rs.10,000/-, said notice is served on Op no.1 and 2 they are marked as Ex.P.3 and P.4. They have failed to complied with the demand made in the notice. Complainant also produced mobile handset that is marked as M.O.1. It is observed that even legal notice served on Op no1 has not appeared before this forum to defense his case. In order to avoid replacement and reimburse of the amount, Op no.1 has not appeared before this forum. Op no.2 in his arguments submitted that the mobile is purchased for the purpose of doing commercial business not for his livelihood, here the question of commercial purpose does not arise because, the complainant purchased the mobile handset under due consideration for himself and for the purpose of communication only. Hence, he is a consumer under C.P Act, hence, the defense of the commercial purpose is not acceptable because even though complainant running home stay or coffee shop. The mobile communication is not any gateway to run the home stay. Hence, we are of the opinion that the complainant is a consumer and there is no any commercial transaction in the said complaint. Complainant produced mobile handset after getting repair from Op before the court, we observed that mobile handset is not working. Hence, it shows deficiency in service of Op.
Therefore we considered Op no.1 and 2 have rendered unfair trade practice in selling defective mobile handset to the complainant. Hence, Op no.1 and 2 are liable to replace the defective mobile handset with new one of the same model and also Op no.1 and 2 are liable to pay compensation ofRs.2,000/- each and litigation expenses of Rs.1,000/- each to the complainant as sought. 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 :
- Complaint is partly allowed.
- Op no.1 and 2 are directed to replace the mobile handset with new one of the same model having no defects along with compensation of Rs.2,000/- each for unfair trade practice and litigation expenses of Rs.1,000/- each to the complainant within one month, failing which Op no.1 and 2 are directed to refund the entire amount paid towards mobile handset along with compensation and litigation expenses to the complainant within further 15 days with 9% interest on the said amount.
- Send free copies of this order to both the parties.
(Dictated to the Stenographer transcribed typed by him, transcript corrected by me and then pronounced in Open Court on this the 4th day of February 2017).
(RAVISHANKAR)
President
(B.U.GEETHA) (H. MANJULA)
Member Member
ANNEXURES
Documents produced on behalf of the complainant:
Ex. P1 - Cash receipt for Rs.16,905/- for having purchase of handset
Ex.P2 - Office copy of the legal notice
Ex.P3 - Postal acknowledgement due
Ex.P4 - Letter issued by post office regarding delivery of legal notice
M.O.1 - Mobile handset
Documents produced on behalf of the OPs:
Ex. R1 - Authorization letter
Dated:04.02.2017 Member
District Consumer Forum,
Chikmagalur.
