BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 28^th of February 2011

PRESENT

        SMT. ASHA SHETTY           :   PRESIDENT

                        SMT.LAVANYA M. RAI       :   MEMBER

                        SRI. ARUN KUMAR K.        :   MEMBER

COMPLAINT NO.295/2010

(Admitted on 30.10.2010)

Mr.Sirajuddin,

So. Late Aliyabba,

Aged about 27 years,

RA. Rehamath Manzil,

Door No.6 39 2, Basthipadpu,

Ullal, Mangalore  20.                     …….. COMPLAINANT

(Advocate for the Complainant: Mrs.Suma R. Nayak).

          VERSUS

1. Ms. Pai International Electronics Limited,

Ground Floor, Abhiman Plaza,

Near Bunts Hostel Circle,

Mangalore  3.

Represented by Manager.

(Opposite Party No.1: Exparte).

2. Sony Ericsson Mobile Communications (P) Ltd.,

Building No.9A, 10^th Floor,

DLF Cyber City,

Sector 25A, Gurgoan,

Delhi (NCR), Hariyana – 122 002,

Represented by Director.           ……. OPPOSITE PARTIES

(Opposite Party No.2: In person)

                                       ***************

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1.       This complaint is filed under Section 12 and 13 of the Consumer Protection Act alleging defect in mobile handset against the Opposite Parties claiming certain reliefs. 

The brief facts of the case are as under:

Complainant submits that, he had purchased a Sony Ericsson Mobile handset bearing IMEI No.359470022641635 on 16.4.2010 from Opposite Party No.1 after paying consideration of               Rs.12,300/- .  The above said mobile handset is manufactured by Opposite Party No.2. 

The Complainant submits that, the said mobile handset completely stopped functioning on 11.8.2010 all of a sudden and dead.  The key pad, the display and all features of the mobile handset came to a standstill on 11.08.2010.  The Complainant approached the 1^st Opposite Party on the very same day and handed over the handset for repair.  Opposite Party No.1 returned the handset back to the Complainant within a day and stated that, it was in perfect working condition.  It was noticed by the Complainant that, the mobile handset was having functional problems from time to time, either the key pad would get locked by itself, the menu would get hung or the display would stop functioning.  In the 1^st week of September 2010, the functional problems of the mobile handset got worse and handset would go ‘switch off’ all by itself.  It is stated that, the defect in the handset is a manufacturing defect and the same was found within the warranty period.  Feeling aggrieved by the above, the Complainant issued a legal notice dated 01.10.2010 called upon the Opposite Parties to replace the defective mobile handset with a new or reimburse the purchase amount but the same has not been complied by the Opposite Parties and hence the above complaint filed under Section 12 and 13 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 defective mobile handset with a brand new mobile handset Sony Ericsson W 705 or reimburse the amount paid by the Complainant for the purchase of the handset and also claimed Rs.20,000/- as compensation and cost of the proceedings.

2.       Version notice served to the Opposite Parties by RPAD. Opposite Party No.1 despite of serving notice neither appeared nor contested the case till this date.  Hence, we have proceeded exparte as against the Opposite Party No.1.  The acknowledgement placed before the FORA marked as court document No.1.

The Location Manager of the Opposite Party No.2 by name Vidhya present before the FORA but not filed any version nor contested the case till this date. 

3.       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 mobile handset purchased by him on 16.04.2010 from the Opposite Party No.1 proved to be defective?

2. Whether the Opposite Parties committed deficiency in service?

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

4. What order?

4.         In support of the complaint, Sri.Sirajuddin (CW1) filed affidavit reiterating what has been stated in the complaint and got marked Ex C1 to C6. The Complainant produced notes of arguments.

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

                       Point No.(i): Affirmative.

                       Point No.(ii) to (iv): As per the final order.  

Reasons

5.  Point No. (i) to (iv):

The Complainant sworn to the fact that, he had purchased a Sony Ericsson Mobile handset bearing IMEI No.359470022641635 on 16.4.2010 as per Ex C1 i.e., the invoice along with warranty card i.e., Ex C2.  The Complainant stated that, on 11.8.2010 all of a sudden the handset stopped functioning and the same was dead, the key pad, the display and all features of the mobile handset came to be a standstill on 11.8.2010.  Thereafter, he took the handset for repair to Opposite Party No.1 and Opposite Party No.1 returned the handset within a day and stated that, the handset is in perfect condition.  The Complainant noticed that, even after the repair the mobile handset was having functional problems from time to time, either the keypad would get locked by itself, the menu would get hung or the display would stop functioning and sworn to the fact that, the Opposite Party No.1 did not repair the mobile properly.  In the 1^st week of September 2010, the functional problems of the mobile handset got worse, would go switch off all by itself and stated that, the handset is defective and also produced a job card dated 11.08.2010 i.e., Ex C3 and also produced defective handset before this FORA i.e., MO1 in order to substantiate his allegation.

The above oral evidence as well as documentary evidence filed by the Complainant through affidavit is not contradicted/ controverted by the Opposite Parties in this case.  The job card as well as the handset produced by the Complainant before this FORA shows that, within the warranty period the handset purchased by the Complainant went out of order and the same was dead.  It could be seen on record that, thereafter the Complainant took the handset for repair to the Opposite Party No.1, despite of that the Complainant faced the problem with the handset and produced the handset before the FORA stating that, the handset is not working itself proved that the handset manufactured by the Opposite Party No.2 has some defect and the same is not in working condition.  A person purchases a new set for his use and not to suffer inconvenience of repeated visits to the service centre and deprivation of the use of the set. But in the instant case, the handset was found defect within the warranty period shows the quality of the product and proved that it has some defect and the same is not working.  One of the official of the Opposite Party No.2 by name one Vidhya who is a Location Manager appeared before this FORA but not bothered to contest the case by producing the material/cogent evidence to show that the handset produced before the FORA by the Complainant is in working condition and defect free. The attitude of the Opposite Parties itself shows that how much they are careless and negligent towards the customer herein the Complainant.  By considering the attitude of the Opposite Parties, the Complainant shall be adequately compensated.  However, in this case, the handset sold by the Opposite Parties proved to be defective and not in working condition and the Opposite Parties are liable to replace the handset apart from the payment of compensation. 

          Generally, if the 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 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 handset in this case.

          In this context, we refer the ruling reported in 2009 I CPJ (80)  by the Hon’ble National Commission  as under:

     “Defect found immediately after purchase, could not be rectified, joint and several liability imposed by the District Forum upheld in appeal holding that dealer having received the amount, undertaken free service and rectify defects during warranty cannot escape liability towards manufacturing defects found in the product”. 

          The above principles observed by the Hon’ble National Commission applicable to the case on hand.

In view of the above discussion, we hold that the service rendered by the Opposite Parties also deficient and the handset sold by them is defective, hence we hereby direct the Opposite Party No.1 and 2 jointly and severally to replace the handset with a new one of the same series free of cost along with fresh warranty by taking back the defective handset.  Further we direct the Opposite Parties to pay Rs.9,000/- to the Complainant as compensation for the inconvenience and harassment and Rs.1,000/- as cost of the litigation expenses.  Compliance/payment shall be made within 30 days from the date of this order.

6.       In the result, we pass the following:                                  

ORDER

The complaint is allowed.  We hereby direct the Opposite Party No.1 and 2 to replace the handset with a new one of the same series free of cost along with fresh warranty by taking back the defective handset.  Further we direct the Opposite Parties to pay Rs.9,000/- (Rupees nine thousand only) to the Complainant as compensation and Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses.  Compliance/payment shall be made within 30 days from the date of this order.

On failure to comply the same, the Opposite Party No.1 and 2 are hereby directed to refund the entire amount of Rs.12,300/- i.e., the sale price, compensation and cost of the proceedings along with interest at 12% p.a. from the date of failure till the date of payment.

The copy of this order as per the statutory requirements be forwarded to the parties free of charge or sent to the parties under postal certificate and thereafter the file shall be consigned to the record room.

(Page No.1 to 9 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 28^th day of February 2011.)

PRESIDENT                    MEMBER                              MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Mr.Sirajuddin – Complainant.

Documents produced on behalf of the Complainant:

Ex C1 – 16.04.2010: Tax invoice for purchase of mobile for Rs.12,300/-.

Ex C2 –                : Warranty certificate.

Ex C3 – 11.08.2010: Job card.

Ex C4 – 01.10.2010: Legal notice sent to the Opposite Parties.

Ex C5 -                 : Postal acknowledgement card.

Ex C6 -                      : Unopened envelope along with postal acknowledgement. 

MO1 – Defective mobile handset produced by the Complainant.

Witnesses examined on behalf of the Opposite Parties:

RW1 – Nil.

Documents produced on behalf of the Opposite Parties: 

                                      -  Nil -

Dated:28.02.2011                            PRESIDENT