M/s. Shree Vaishnavi Enterprises V/S M. Mareppa S/o. Narasingappa - Consumer Court Case

Karnataka

Raichur

CC/08/73

M. Mareppa S/o. Narasingappa - Complainant(s)

Versus

M/s. Shree Vaishnavi Enterprises - Opp.Party(s)

Veeresh Sajjan

17 Sep 2009

ORDER

DIST. CONSUMER DISPUTES REDRESSAL FORUM
DIST. CONSUMER DISPUTES REDRESSAL FORUM,DC Office Compound, Sath Kacheri
consumer case(CC) No. CC/08/73

M. Mareppa S/o. Narasingappa						...........Appellant(s)
Vs.
M/s. Shree Vaishnavi Enterprises Nokia India Pvt. Ltd., Nokia Care Services Centre						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

JUDGEMENT By Sri. Gururaj Member:- This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant- M. Mareppa S/o. Narasingappa against three Respondents-(1) M/s. Sri. Vaishnavi Enterprises, Station Road, Raichur (2) Nokia Care Service Center, Station Road, Raichur and (3) Nokia India Private Ltd., Sripurmbur, Tamilnadu. The brief facts of the complaint are as under:- The complainant is an agriculturist residing at Askihal village. He had purchased a Nokia Mobile Model No. 1650 for an amount of Rs. 2,350/-on 08-02-08 vide Bill No. 491 from the Op-1. Since from the date of purchase the said mobile is under problem, not properly hearing suddenly disconnection of incoming calls and though the sim card is inserted it was showing insult sim. In this regard the complainant approached the OP-1 & 2 and explained about the problems with the mobile but they have not responded properly nor rendered proper service. In-turn the OP- 1 & 2 advised to approach the OP-3 accordingly the complainant approached the OP-1 and filed a written complaint. The OP- 1 & 2 neither responded for the complaint nor forwarded the letter to the Op-3. Further it is the case of the complainant even inspite of several requests Ops 1 to 3 have not responded in respect of the complaint regarding mobile is concerned, the complainant has got legal notice to all the Ops on 13-09-08 in order to set right the matter at their cost and expenses or to provide alternative mobile set etc., Even in spite of notice they have not settled the claim of the complainant nor rendered service in order to get repair the mobile set. The claim of the complainant is within the period of warranty. Non settling the claim of the complainant is deficiency in service on the part of the Ops. Hence file the complaint seeking the relief of directions to replace the mobile, and compensation of Rs. 10,000/- for mental shock, agony inconvenience etc., with interest from the date of purchase to till realization. 2. In reply to the service of notice the Ops 1 & 2 have appeared through their respective counsel and filed the written version. The Op-3 appeared through the counsel and filed only power but no written version has been filed in order to defend his case. 3. The Op-1 in his written version contended that the complainant has only purchased the mobile from Op-1. This Ops is only a vendor as per the terms and conditions mentioned in the bill he is not responsible for mobile service and it is totally concerned to company service center and the warranty given is only by the company and not by the dealer/vendor. Whatever the problem with the mobile is concerned the complainant as to sue the company not the Op-1 and sought for dismissal of the complaint with cost against him. 4. The Op-2 in his written version contended that the complainant has never visited his service center hence there will be a no scope to refuse to repay/replace and rendering of the service therefore there is no deficiency of service on the part of this Op. Further it is contended that if at all the Op-2 received any complaint he used to prepare on line job sheet which will be connected to central office at Singapore and the copy of the same will be given to the customer. Here in this case, the complainant never visited hence no jobs sheet was prepared in the name of the complainant. The allegations of the complainant in this regard are all false and baseless. Further it is contended that the complainant has got issued legal notice on 17-08-09 but not on 13-09-08 for the said notice the reply was also given on 03-11-08. This Op is still ready to look into the grievances of the complainants problem in the mobile set and if a permissible and if it covering under the warranty according to the norms and conditions of the company, then the grievances will be taken care by this Op. Even after receipt of the reply notice the complainant ought to have approach this Op in order to rectify his grievances but the complainant never approached hence the complainant of the complainant is false and baseless one and sought for the dismissal of the same with cost. 5. During the course of enquiry the complainant has filed his sworn affidavit by way of examination-in-chief reiterating the averments of the complaint and he has got marked (6) documents as Ex.P-1 to Ex.P-6. The Respondents have not filed any documents hence no documents were marked on behalf of the Respondents. 6. Heard the arguments of both sides and perused the records. The following points arise for our consideration and determination: 1. Whether the complainant proves deficiency in service by the Respondents as alleged.? 2. Whether the complainant is entitled for the reliefs sought for.? 7. Our finding on the above points are as under:- 1. In the affirmative. 2. As per final order for the following REASONS POINT NO.1:- 8. It is the case of the complainant that he has purchased Nokia Mobile Model bearing No. 1650 on 08-02-08 vide bill No. 490 from the OP-1 for an amount of Rs. 2,350/- and the said mobile was under problems like not properly hearing, sudden disconnection of incoming calls and though the sim card is inserted it was showing inset the sim. In this regard he has made several efforts to get it rectify by approaching by OP-1 and OP-2 and even by OP-3 but went in vain. The Ops have not properly cared in order to rectify the problems and thereby the Ops have committed the deficiency in service. 9. The complainant has produced in all (6) documents at Ex.P-1 to Ex.P-6. Ex.P-1 is the Invoice No. 490 dt. 08-02-08 issued by OP-1. Ex.P-2 is the letter dt. 23-08-08 written by the complainant to the OP-1 acknowledgement card is marked at Ex.P-2(a). ExP-3 is the Legal Notice dt. 13-09-08 issued against Ops. Ex.P-4 is the postal receipts (3) in Nos. marked at Ex.P-4(1) to Ex.P-4(2) Acknowledgement Card is marked at Ex.P-5 & Reply Notice issued by OP-2 is marked at Ex.P-6. 10. It is the case of the Respondent No-1 that he is only the vendor/dealer and he is not responsible for service. What ever the problem with the mobile is concerned, the complainant has to sue the company and he has to approach OP-2 in order to get service. There is no dispute that regarding purchase of the mobile from OP-1 by the complainant as contended in the complaint by the complainant. From the perusal of the Ex.P-1, it is very clear that the complainant has purchased the mobile from the OP-1 and the said Ex.P-1 is also very clear that the OP-1 is a authorized dealer of Nokia Company Mobiles. The Op-1 in his written version he has contended that he is not responsible for mobile service and the Op-2 and Op-3 are responsible. In this regard he has referred the Tax Invoice/Bill wherein terms and conditions are mentioned at the bottom. No doubt the Op-1 is the dealer but he is the vendor of mobile in question by accepting the cost by the complainant and therefore he is having direct relationship with the complainant. If anything goes wrong with the mobile which he has sold to the complainant he supposes to get it rectify the same by sending it to his company service center where the mobile can be repaired but the OP-1 has not done so just by relying the terms and conditions laid down by the bill he has avoided his responsibility. This is not the proper service given by the OP-1 to the complainant. In this regard we have referred CPR 1991(1) Page 40 of Haryana State Commission in Chowdary Automobiles V/s. Anil Kumar Case. Wherein the Honble State Commission held that The trader alone is necessary party in respect of defects in the goods. The relief envisaged in the act can be claimed against either seller, distributor, manufacturer or packer as the case may be. It is not necessary that every time a complaint has been made, the manufacturer must be made a party. Thus the original manufacturer is not a necessary party in a complaint against the trader for the supply of defective goods. This is because merely manufacturer may be a possible party, it is no grounds for holding in the reverse that he is a necessary party whose non joinder would be fatal to the whole proceedings. In view of the above judgment who have over looked the terms and conditions laid down in the tax invoice/bill and we hold that the Respondent No.1 is liable to comply with the complaint of the complainant. Here he has not done so hence it is nothing but the deficiency on the part of the Respondent No.1. 11. The OP No-2 in his written version he has contended that the complainant has never approached him with his complaint with the mobile. If he would have used to prepare online job sheet which will be connected to Central Office Singapore, and the copy of the same will be given to the customer. No doubt the complainant has not produced any single piece of paper to show that he has approached the Op-2 except the legal notice issued to Ops. Under these circumstances we cannot believe in the words of the complainant the complainant has approached the OP-2 in order to get it repair his mobile. Hence we cannot hold that the complainant has approached the Op-2 in turn the Op-2 has refused to get it repair the complainant. So the case against the OP-2 is fit to be dismissed. 12. From the pleadings of the Opposite parties, it appears that the complainant has been directed to approach the service center in order to rectify the defects in the mobile this itself would goes to show that there is a defect in the mobile which is sold by the OP-1 to the complainant. Under these circumstances it cannot be considered that the mobile of the complainant is not having any problem as contended by the complainant in his complaint. In this regard we have referred another ruling of our Honble State Commission, in IV (2008) CPJ 207. 13. The Op-3 inspite of service of the legal notice from the complainant counsel has not made any efforts to comply with the complaint of the complainant regarding his defective mobile is concerned, and even after service of the notice issued by this Forum also he has remained absent. This act of the Op-3 itself would go to show that his negligence in order to response his customer. Under these circumstances it will not be exorbitant to say that he is totally neglected the claim of the complainant and his attitude is nothing but a deficiency in service on his part. So under these circumstances we come to the conclusion that the complainant has proved his case of deficiency in service on the part of the OP-1 & 3. Hence we hold that there is a deficiency on the part of the Ops 1 & 3 therefore they are liable for the loss caused to the complainant. The claim of the complainant is also within the warranty period because at no point the Ops have never disputed this contention of the complainant in their written version. Hence Point No-1, is answered in the Affirmative. POINT NO.2:- 14. The complainant has sought for direction to replace the mobile and compensation of Rs. 10,000/- for mental shock agony inconvenience etc., with interest from the date of filing of the complaint. Having regard to the facts and circumstances of the case as discussed in Point NO-1, we feel it just and proper to order for replacement of the Nokia Mobile Model No. 1650 set purchased by the complainant from the OP-1 on 08-02-08 by a defect free and new set or in the alternative to refund the amount of Rs. 2,350/- i.e, the cost of the mobile. In regard to the compensation of Rs. 10,000/- mental shock agony inconvenience etc., with interest from the date of purchase to till realization is concerned, we feel that the claim of the complainant is very high and excessive one, hence we feel it is just and proper to award Rs. 500/- to the complainant including deficiency in service and cost of litigation. In this view of the matter we pass the following order: ORDER The complaint of the complainant is allowed in part against the Ops 1 and 3 only. The Respondents 1 & 3 are hereby directed to replace the Nokia Mobile Model No. 1650 set purchased by the complainant from the OP-1 on 08-02-08 by a defect free and new set of the same value or in the alternative to refund the amount of Rs. 2,350/- i.e, the cost of the mobile The Respondents 1 & 3 are jointly and severally liable to pay compensation of Rs. 500/- to the complainant including cost of litigation. The Respondents shall comply this order within (6) weeks from the date of receipt of copy of this order. Office to furnish certified copy of this order to both the parties forth-with free of cost. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 11-09-09) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.

JUDGEMENT By Sri. Gururaj Member:- This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant- M. Mareppa S/o. Narasingappa against three Respondents-(1) M/s. Sri. Vaishnavi Enterprises, Station Road, Raichur (2) Nokia Care Service Center, Station Road, Raichur and (3) Nokia India Private Ltd., Sripurmbur, Tamilnadu. The brief facts of the complaint are as under:- The complainant is an agriculturist residing at Askihal village. He had purchased a Nokia Mobile Model No. 1650 for an amount of Rs. 2,350/-on 08-02-08 vide Bill No. 491 from the Op-1. Since from the date of purchase the said mobile is under problem, not properly hearing suddenly disconnection of incoming calls and though the sim card is inserted it was showing insult sim. In this regard the complainant approached the OP-1 & 2 and explained about the problems with the mobile but they have not responded properly nor rendered proper service. In-turn the OP- 1 & 2 advised to approach the OP-3 accordingly the complainant approached the OP-1 and filed a written complaint. The OP- 1 & 2 neither responded for the complaint nor forwarded the letter to the Op-3. Further it is the case of the complainant even inspite of several requests Ops 1 to 3 have not responded in respect of the complaint regarding mobile is concerned, the complainant has got legal notice to all the Ops on 13-09-08 in order to set right the matter at their cost and expenses or to provide alternative mobile set etc., Even in spite of notice they have not settled the claim of the complainant nor rendered service in order to get repair the mobile set. The claim of the complainant is within the period of warranty. Non settling the claim of the complainant is deficiency in service on the part of the Ops. Hence file the complaint seeking the relief of directions to replace the mobile, and compensation of Rs. 10,000/- for mental shock, agony inconvenience etc., with interest from the date of purchase to till realization. 2. In reply to the service of notice the Ops 1 & 2 have appeared through their respective counsel and filed the written version. The Op-3 appeared through the counsel and filed only power but no written version has been filed in order to defend his case. 3. The Op-1 in his written version contended that the complainant has only purchased the mobile from Op-1. This Ops is only a vendor as per the terms and conditions mentioned in the bill he is not responsible for mobile service and it is totally concerned to company service center and the warranty given is only by the company and not by the dealer/vendor. Whatever the problem with the mobile is concerned the complainant as to sue the company not the Op-1 and sought for dismissal of the complaint with cost against him. 4. The Op-2 in his written version contended that the complainant has never visited his service center hence there will be a no scope to refuse to repay/replace and rendering of the service therefore there is no deficiency of service on the part of this Op. Further it is contended that if at all the Op-2 received any complaint he used to prepare on line job sheet which will be connected to central office at Singapore and the copy of the same will be given to the customer. Here in this case, the complainant never visited hence no jobs sheet was prepared in the name of the complainant. The allegations of the complainant in this regard are all false and baseless. Further it is contended that the complainant has got issued legal notice on 17-08-09 but not on 13-09-08 for the said notice the reply was also given on 03-11-08. This Op is still ready to look into the grievances of the complainants problem in the mobile set and if a permissible and if it covering under the warranty according to the norms and conditions of the company, then the grievances will be taken care by this Op. Even after receipt of the reply notice the complainant ought to have approach this Op in order to rectify his grievances but the complainant never approached hence the complainant of the complainant is false and baseless one and sought for the dismissal of the same with cost. 5. During the course of enquiry the complainant has filed his sworn affidavit by way of examination-in-chief reiterating the averments of the complaint and he has got marked (6) documents as Ex.P-1 to Ex.P-6. The Respondents have not filed any documents hence no documents were marked on behalf of the Respondents. 6. Heard the arguments of both sides and perused the records. The following points arise for our consideration and determination: 1. Whether the complainant proves deficiency in service by the Respondents as alleged.? 2. Whether the complainant is entitled for the reliefs sought for.? 7. Our finding on the above points are as under:- 1. In the affirmative. 2. As per final order for the following REASONS POINT NO.1:- 8. It is the case of the complainant that he has purchased Nokia Mobile Model bearing No. 1650 on 08-02-08 vide bill No. 490 from the OP-1 for an amount of Rs. 2,350/- and the said mobile was under problems like not properly hearing, sudden disconnection of incoming calls and though the sim card is inserted it was showing inset the sim. In this regard he has made several efforts to get it rectify by approaching by OP-1 and OP-2 and even by OP-3 but went in vain. The Ops have not properly cared in order to rectify the problems and thereby the Ops have committed the deficiency in service. 9. The complainant has produced in all (6) documents at Ex.P-1 to Ex.P-6. Ex.P-1 is the Invoice No. 490 dt. 08-02-08 issued by OP-1. Ex.P-2 is the letter dt. 23-08-08 written by the complainant to the OP-1 acknowledgement card is marked at Ex.P-2(a). ExP-3 is the Legal Notice dt. 13-09-08 issued against Ops. Ex.P-4 is the postal receipts (3) in Nos. marked at Ex.P-4(1) to Ex.P-4(2) Acknowledgement Card is marked at Ex.P-5 & Reply Notice issued by OP-2 is marked at Ex.P-6. 10. It is the case of the Respondent No-1 that he is only the vendor/dealer and he is not responsible for service. What ever the problem with the mobile is concerned, the complainant has to sue the company and he has to approach OP-2 in order to get service. There is no dispute that regarding purchase of the mobile from OP-1 by the complainant as contended in the complaint by the complainant. From the perusal of the Ex.P-1, it is very clear that the complainant has purchased the mobile from the OP-1 and the said Ex.P-1 is also very clear that the OP-1 is a authorized dealer of Nokia Company Mobiles. The Op-1 in his written version he has contended that he is not responsible for mobile service and the Op-2 and Op-3 are responsible. In this regard he has referred the Tax Invoice/Bill wherein terms and conditions are mentioned at the bottom. No doubt the Op-1 is the dealer but he is the vendor of mobile in question by accepting the cost by the complainant and therefore he is having direct relationship with the complainant. If anything goes wrong with the mobile which he has sold to the complainant he supposes to get it rectify the same by sending it to his company service center where the mobile can be repaired but the OP-1 has not done so just by relying the terms and conditions laid down by the bill he has avoided his responsibility. This is not the proper service given by the OP-1 to the complainant. In this regard we have referred CPR 1991(1) Page 40 of Haryana State Commission in Chowdary Automobiles V/s. Anil Kumar Case. Wherein the Honble State Commission held that The trader alone is necessary party in respect of defects in the goods. The relief envisaged in the act can be claimed against either seller, distributor, manufacturer or packer as the case may be. It is not necessary that every time a complaint has been made, the manufacturer must be made a party. Thus the original manufacturer is not a necessary party in a complaint against the trader for the supply of defective goods. This is because merely manufacturer may be a possible party, it is no grounds for holding in the reverse that he is a necessary party whose non joinder would be fatal to the whole proceedings. In view of the above judgment who have over looked the terms and conditions laid down in the tax invoice/bill and we hold that the Respondent No.1 is liable to comply with the complaint of the complainant. Here he has not done so hence it is nothing but the deficiency on the part of the Respondent No.1. 11. The OP No-2 in his written version he has contended that the complainant has never approached him with his complaint with the mobile. If he would have used to prepare online job sheet which will be connected to Central Office Singapore, and the copy of the same will be given to the customer. No doubt the complainant has not produced any single piece of paper to show that he has approached the Op-2 except the legal notice issued to Ops. Under these circumstances we cannot believe in the words of the complainant the complainant has approached the OP-2 in order to get it repair his mobile. Hence we cannot hold that the complainant has approached the Op-2 in turn the Op-2 has refused to get it repair the complainant. So the case against the OP-2 is fit to be dismissed. 12. From the pleadings of the Opposite parties, it appears that the complainant has been directed to approach the service center in order to rectify the defects in the mobile this itself would goes to show that there is a defect in the mobile which is sold by the OP-1 to the complainant. Under these circumstances it cannot be considered that the mobile of the complainant is not having any problem as contended by the complainant in his complaint. In this regard we have referred another ruling of our Honble State Commission, in IV (2008) CPJ 207. 13. The Op-3 inspite of service of the legal notice from the complainant counsel has not made any efforts to comply with the complaint of the complainant regarding his defective mobile is concerned, and even after service of the notice issued by this Forum also he has remained absent. This act of the Op-3 itself would go to show that his negligence in order to response his customer. Under these circumstances it will not be exorbitant to say that he is totally neglected the claim of the complainant and his attitude is nothing but a deficiency in service on his part. So under these circumstances we come to the conclusion that the complainant has proved his case of deficiency in service on the part of the OP-1 & 3. Hence we hold that there is a deficiency on the part of the Ops 1 & 3 therefore they are liable for the loss caused to the complainant. The claim of the complainant is also within the warranty period because at no point the Ops have never disputed this contention of the complainant in their written version. Hence Point No-1, is answered in the Affirmative. POINT NO.2:- 14. The complainant has sought for direction to replace the mobile and compensation of Rs. 10,000/- for mental shock agony inconvenience etc., with interest from the date of filing of the complaint. Having regard to the facts and circumstances of the case as discussed in Point NO-1, we feel it just and proper to order for replacement of the Nokia Mobile Model No. 1650 set purchased by the complainant from the OP-1 on 08-02-08 by a defect free and new set or in the alternative to refund the amount of Rs. 2,350/- i.e, the cost of the mobile. In regard to the compensation of Rs. 10,000/- mental shock agony inconvenience etc., with interest from the date of purchase to till realization is concerned, we feel that the claim of the complainant is very high and excessive one, hence we feel it is just and proper to award Rs. 500/- to the complainant including deficiency in service and cost of litigation. In this view of the matter we pass the following order: ORDER The complaint of the complainant is allowed in part against the Ops 1 and 3 only. The Respondents 1 & 3 are hereby directed to replace the Nokia Mobile Model No. 1650 set purchased by the complainant from the OP-1 on 08-02-08 by a defect free and new set of the same value or in the alternative to refund the amount of Rs. 2,350/- i.e, the cost of the mobile The Respondents 1 & 3 are jointly and severally liable to pay compensation of Rs. 500/- to the complainant including cost of litigation. The Respondents shall comply this order within (6) weeks from the date of receipt of copy of this order. Office to furnish certified copy of this order to both the parties forth-with free of cost. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 11-09-09) Sd/- Sri. Pampapathi, President, District Forum-Raichur. Sd/- Sri. Gururaj, Member, District Forum-Raichur. Sd/- Smt.Pratibha Rani Hiremath, Member. District Forum-Raichur.