BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 31ST July 2014
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
COMPLAINT NO.164/2013
(Admitted on 15.6.2013)
Mr.Yogiraj.B.,
Aged about 30 years,
So Mr.B.a. Manju,
Sri Vinayaka Stores, Uppunda,
Ambagilu, Kundapur. …….. COMPLAINANT
(Advocate for Complainant: Smt Manjula N.A.)
VERSUS
1. Ms. Micromax Informatics Ltd.,
Micromax, Informatics Ltd.,
21 14A, Phase II, Naraina Industrial Area,
Delhi 110 028.
Represented by its Authorised Signatory.
2. M/s. Bharti Retail Ltd.,
EASYDAY Market,
Shankar Vittal compound,
N.G. Road, Attavar,
Next to Casa Grande Apartment,
Mangalore- 575 003.
3. Numeric’s Mobile Point at 002,
Essel Tower, Bunts Hostel Circle,
Mangalore- 575 003.
Represented by its
Authorised Signatory. ……OPPOSITE PARTIES
(Opposite Party No. 1 and 3: Exparte)
(Advocate for Opposite Party No.2: Sri U.P. Muliya)
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, he had purchased the handset i.e. Micromax Canvas –II on January 2013 by paying Rs.9,990/- from the Opposite Party No.2 and manufactured by the Opposite Party No.1 and Opposite Party No.3 is a service center. It is stated that after purchase the above handset was stopped working and immediately informed to the Opposite Party No.2 and thereafter it has been handed over to the Opposite Party No.3 on 28.1.2013 and Opposite Party represented that the network I.C. of the set is not working and is to be replaced and thereafter it has been replaced even after that there was a network problem in the mobile handset. Due to the above defect the handset was not working and Opposite Party No.3 assured that they will repair the handset but till this date they have nor repaired not returned the handset. It is stated that the Opposite Party No.1 has introduced two new models namely Micromax canvas –II with HD and complainant has not used the above handset for a single day and contended that the handset sold by the Opposite Party is defective 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 pay a sum of Rs.9,990/- along with interest at 18% per annum 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 and 3 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.1 and 3. The acknowledgement marked as Court Doc. No.1 and 2.
Opposite Party No.2 appeared through their counsel admitted that the complainant purchased the above handset from them for Rs.9,990/- and denied the entire allegations alleged in the complaint and it is stated that the opposite party No.2 is the retail dealer of Opposite Party No.1 at Mangalore and not aware of the defect in the handset and denied the deficiency and prayed for dismissal of the complaint .
III. 1. In support of the complaint, Mr.Yogiraj.B (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 C4. On behalf of Opposite Parties one Sri Sanjeev Nai, (RW-1) Store Manager of Opposite Party No.2 filed counter affidavit and answered the interrogatories served on him.
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 Micromax Canvas -II purchased on 19.1.2012 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) & (ii): Affirmative.
Point No.(iii) & (iv): As per the final order.
REASONS
IV. 1. POINT NO. (i) to (iii):
In the instant case, the facts which are admitted is that the complainant has purchased the handset on 19.1.2013 by paying Rs.9,990/- from the Opposite Party No.2 who is retail dealer in Mangalore.
Now the points are in dispute before the FORA is that, The complainant came up with a complaint stating that the handset purchased by the complainant found defective within the warranty period and could not use the same and there after the handset handed over to the Opposite Party No.3 i.e. authorized service center but till this date the handset was not returned to the complainant. Hence this complaint.
Opposite Party No.2 except denying the entire allegations nothing has been placed on record to show that he has no responsibility towards the customers/complainant.
On perusing the oral as well as documentary evidence available on record, we find that, admittedly the complainant purchased handset on 19.1.2013 by paying Rs.9,990/- to the Opposite Party No.2 who is authorized dealer and on 28.1.2013 i.e. within span of time the handset was handed over to the authorized service center i.e. Opposite Party No.3 for the first time, wherein the job card dated 28.1.2013 issued by the Opposite Party No.3 discloses that the handset has not working and also the handset is within the warranty period. However, the Opposite Party No.3 and Opposite Party No.1 are manufacturer and authorized service center and the above handset the above Opposite Parties not appeared before this Fora nor represented the case, the entire evidence on record is not contradicted nor controverted by them. The entire evidence discloses that the Opposite party No.2 who is the authorized service center is not bothered to return the handset nor put forward their contentions to show that what is the fate of the handset till this date. By retaining the handset for unreasonable time without answering the customers shows sheer negligence on the part of the service center as well as the manufacturer in this case. Since the Opposite Parties not returned the handset to the complainant, it is proved beyond doubt that the handset sold by the Opposite party No.2 and manufactured by the Opposite Party No.1 and serviced by the Opposite Party No.3 is a defective.
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, 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 mobile hand set in this case.
In view of the aforesaid reasons, we hold that, the Opposite Party No.1 to 3 are jointly and severally shall refund Rs.9,990/- (Rupees Nine thousand nine hundred ninety only) i.e. cost of the mobile handset to the Complainant to the complainant by retaining the handset which is already in Opposite party possession. 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 the result, we pass the following:
ORDER
The complaint is allowed. Opposite Party No.1 to 3 are jointly and severally shall refund Rs.9,990/- (Rupees Nine thousand nine hundred ninety only) i.e. cost of the mobile handset to the Complainant by retaining the handset which is already in Opposite parties possession. 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 Parties 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 8 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 31st day of July 2014)
PRESIDENT MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mr.Yogiraj B – Complainant.
Documents produced on behalf of the Complainant:
Ex C1: 19.1.2013: Copy of the Bill.
Ex C2: 28.1.2013: Copy of the entry level screening form.
Ex C3: 9.4.2013: Office copy of the legal notice.
Ex C4: Postal acknowledgements.
COURT DOCUMENTS:
DOC.No.1 and 2: Postal Acknowledgments.
Witnesses examined on behalf of the Opposite Parties:
RW - 1: Sanjeev Nair Store Manager of Opposite Party No.2.
Documents produced on behalf of the Opposite Parties:
- Nil –
Dated:31-07-2014 PRESIDENT
