BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE

Dated this the 31^ST July  2014

PRESENT

       SMT. ASHA SHETTY           :   PRESIDENT

                   SMT.LAVANYA M. RAI       :   MEMBER                   

COMPLAINT NO.42/2013

(Admitted on 2.2.2013)

Mr.Trivikram bhat,

S/o Late Mohan Bhat,

Aged about   years,

Resinding at Flat No.303

Akash Towers, Chilimbi,

Mangalore-575 006.                         …….. COMPLAINANT

(Advocate for Complainant: Smt Manjula.N.A.)

          VERSUS

1. M/s. Samsung India Electronic Pvt. Ltd.,

    B-1, Sector 81 Phase 2,

    Nodia District, Gautham Buddha Nagar,

    Uttar Pradesh,

    Represented by its authorized Signatory.

2. M/s. Mobile Tricks,

     Shop No.4, Basement Floor,

     Vasanthi Complex,

     Opp. Petrol Pump, Kadri,

     Mangalore-575 002.

     Represented by its authorized signatory.

3.  M/s Prabhath Infocom,

     B3, Divya Enclave, Jail Road,

     Mangalore-575 003.

     Represented by its

     Authorized signatory.        ……OPPOSITE PARTIES

(Advocate for Opposite Party No.1:Sri J.Nanda Kishore)

(Opposite Party No. 2 and 3: Exparte)

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, the Opposite Party No.2 is the dealer of Samsung Galaxy mobile phones manufactured by Opposite Party No.1. Opposite party No.3 is the service provider and care center of the said handset.

It is stated that, the complainant purchased the Samsung Galaxy–Y by paying a sum of Rs.7,500/-to the Opposite Party No.2 21.4.2012 and the said handset had a warranty for 12 months from the date of purchase.  The complainant has found many defects in the handset i.e. touch panel was not working properly and always have network problem and has to switch it off before calling every time.  Further it is stated that display are not clear and visible and there was no clarity in sound and within 5 months from the date of purchase of the handset and the complainant handed over the said mobile handset to Opposite party No.3.

The complainant further stated that in the month of November 2012, when the hand set was handed over to the Opposite Party No.3 for the same problems, they have changed the mother board and returned to the handset.  After receiving back the mobile the handset, within 15 days again the same problems are occurred and thereafter complainant issued legal notice on 10.12.2012  through his counsel, calling upon them to refund the entire amount and still the Opposite parties not complied the demand made therein 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  to refund a sum of Rs.7,500/- along with interest at 18% per annum from the date of payment till the realization to the complainant 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.2 & 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.2 & 3.  The acknowledgement marked as Court Doc. No.1 & 2. 

          Opposite Party No.1 appeared through their counsel filed version wherein denied entire allegation alleged in the complaint and stated that the virus attach is caused at the time of downloading and the same has been caused due to misuse of the product like not taking precaution of scanning the items before down loading.  When the customer is mishandles the product then the company is not liable for replacement of the product as well as free service and which is not fall within the warranty therefore it is denied that the opposite parties are liable for any defect problems caused to the handset.

III.     1.  In support of the complaint, Mr.Trivikram Bhat (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 C9. On behalf of Opposite Parties one Sri Sudheer P Nai, (RW-1) Senior Manager of Opposite Party No.1 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:

1. Whether the Complainant proves that the Samsung Galaxy -Y handset purchased on 21.4.2012 from the Opposite Parties found to be defective?

2. Whether the Complainant proves that the Opposite Parties have committed deficiency in service?

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

4. 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.  POINTS NO. (i) to (iv):

             In the instant case, the facts which are admitted is that the complainant purchased the Samsung galaxy by paying Rs.7,500/- from Opposite Party No.2 as per invoice dated 21.4.2012 i.e. Ex. C1. The Opposite Party No.1 is the manufacturer of the product and the Opposite Party No.3 is the service provider and care center of the above handset. 

Now the points are in dispute between parties before this FORA is that, the complainant came up with a complaint stating that the handset purchased by him is not working and always have network problem and switch it off before calling every time and touch panel not working.  However, the Opposite Party No.3 have changed the motherboard even after that the problems were recovered and contended that the handset is defective. Hence this complaint.

The Opposite Party No.1 who is manufacturer of the handset contended that it is due to mishandling of the product while downloading the virus attach therefore, the manufacturer is not liable.

On perusing the oral as well as documentary evidence available on record, we find that, the alleged problem occurred during the  warranty period and the alleged defective handset produced before this for a and marked as M.O. No.1.  The only contention of the manufacturer is that the alleged defect found during the downloading the virus attach that means the problem in the handset is admitted.  But it is contended that the said problem caused due to mishandling of the complainant.  However, there is no material evidence placed before this FORA to satisfy that the virus attack or any alleged problem seen in the handset are due to mishandling by the complainant.  In the absence of any material evidence we hold that the contention taken by the Opposite party holds no merits.  On the other hand, the complainant produced the M.O. No.1 before this FORA to show that the handset is not functioning and not in usable condition.  When that being so, we hold that the handset sold by the Opposite Party No.2 and manufactured by the Opposite Party No.1 is not upto the quality and there is a shortcoming in the quality. Under that circumstances, left with no other option we hold that the mobile handset is 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 instead of replacing handset we hereby directed the Opposite Party No.1 and 2 jointly and severally shall refund the cost of the mobile handset by receiving M.O. No.1  and also the Opposite parties are liable to pay Rs.5,000/- (Rupees Five Thousand only) as damages to the complainant for the inconvenience and harassment caused 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.

Since there is no privity of contract between the complainant and the service provider i.e. Opposite Party No.3. Hence Complaint against Opposite Party No.3 is hereby dismissed.

          In the result, we pass the following:        

ORDER

The complaint is allowed. Opposite Party No.1 and 2 are jointly and severally shall refund of Rs.7,500/- (Rupees Seven thousand five hundred only) i.e. cost of the mobile handset to the Complainant by taking back M.O.No.1 produced before this FORA.  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 Party 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.

Complaint against Opposite Party No.3 is hereby dismissed.

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 31^st day of July 2014)

                   PRESIDENT                         MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Mr.Trivikram Bhat– Complainant.

Documents produced on behalf of the Complainant:

Ex C1: 21.4.2012: Original invoice NO.569.

Ex C2: 10.12.2012: Office copy of the legal notice.

Ex C3: Customer Registration slip.

Ex C4:Postal acknowledgements (2).

Ex C5 to C9: Email communication between the complaiantn and O.P.

M.O.No.1: Defective Handset.

COURT DOCUMENTS:

DOC.No.1 and 2: Posta Acknowledgments.

Witnesses examined on behalf of the Opposite Parties:

RW - 1: Sri Sudheer P Nai, Senior Manager of Opposite Party No.1.    

Documents produced on behalf of the Opposite Parties:    

- Nil –

Dated:31-07-2014                                  PRESIDENT