Tamil Nadu

North Chennai

CC/143/2016

R.Karthick - Complainant(s)

Versus

Poorvika Mobiles the Mananger - Opp.Party(s)

P.Raja

01 Feb 2018

ORDER

 

                                                            Complaint presented on:  08.08.2016

                                                                Order pronounced on:  01.02.2018

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, CHENNAI (NORTH)

    2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

        PRESENT: THIRU.K.JAYABALAN, B.Sc., B.L.,        PRESIDENT

              THIRU. M.UYIRROLI KANNAN B.B.A., B.L.,      MEMBER - I

 

THURSDAY  THE 1^st DAY OF FEBRUARY 2018

 

C.C.NO.143/2016

 

 

 

R.Karthick,

Son of Ramadoss,

residing at No.170,

Ammani Amman Garden,

8^th Street, Chennai – 600 081.

                                                                                    ….. Complainant

 

..Vs..

 

1.The Manager,

Poorvika Mobiles Pvt Ltd.,

No.229, T.H.Road,

New Washermenpet,

Chennai – 600 081.

 

2. The Chairman,

Samsung India Electronics Pvt  Ltd,

B-1, Sector 81, Phase 2 Noida District,

Gautam Budd Nagar, Uttar Pradesh.

.....Opposite Parties

Date of complaint                                 : 21.09.2016

Counsel for Complainant                      : P.Raja, M.Gopala Krishnan

Counsel for 1^st opposite party                        : S.Muthuselvam & B.Mahendran

                                                                 (Ex – parte)

         

Counsel for 2^nd  Opposite Party               : M/s.V.V.Giridhar, P.Suresh, K.Senthil

 

O R D E R

 

BY PRESIDENT THIRU. K.JAYABALAN B.Sc., B.L.,

          This complaint is filed by the complainant to replace the mobile and also to pay compensation for mental agony with costs of the complaint u/s 12 of the Consumer Protection Act.1986.

1.THE COMPLAINT IN BRIEF:

          The complainant purchased a Samsung Mobile Phone A710F Galaxy A7 (4G) on 25.03.2016 from the 1^st opposite party/dealer on payment of Rs.32,500/-. The 2^nd opposite party is the manufacturer of the said mobile phone. After using the mobile phone for a few days the product started defects like hanging and overheating etc. On 28.03.2016 the complainant contacted the first opposite party and handed over the product to rectify the defects. The first opposite party also informed him that he would rectify the defects informing the manufacturer. On 04.04.2016 the complainant collected the handset as requested by the 1^st opposite party after service. Again the same defects arose and the complainant handed over the product to the 1^st opposite party on 11.04.2016 for rectification. On 18.04.2016 the 1^st opposite party returned the product that there was some software problem and the same has been rectified. No sooner he received the handset, he found that the defects were not rectified and the complainant requested the 1^st opposite party to replace the handset. The 1^st opposite party again received the handset on 25.04.2016 and sent a mail on 26.04.2016 that once job sheet was created he will inform the status to the complainant.

          2. The 1^st opposite party simply shifting the liability on the manufacturer by his reply dated 18.05.2016. The 1^st opposite party having received the product for service and the 2^nd opposite party as a manufacturer both are jointly and severally liable for selling the defective product to the complainant. Hence the complainant filed this complaint to replace the mobile and also to pay compensation for mental agony with costs of the complaint.

          3. The 1^st opposite party was set ex-parte for non filing of written version on 07.12.2016 even after expiry of mandatory period. Subsequently the 1^st opposite party filed CMP.No.44/17 set-aside petition with written version on 13.03.2017 to set aside the ex-parte order dated 07.12.2016. The said petition was allowed with condition to comply the condition on or before 03.05.2017. The 1^st opposite party failed to comply the conditional order and hence as such the ex-parte order passed against the 1^st opposite party on 07.12.2016 is in force till this date.

4. WRITTEN VERSION OF THE 2^nd  OPPOSITE PARTY IN BRIEF:

          The 2^nd opposite party states that they have received the mobile phone belonging to the complainant forwarded through the 1^st opposite party alleging that there is a defect in the mobile. On verification it was found that the mobile phone was working in good condition and only the software problem in respect of the said mobile was updated and after updating the software, it was found that the mobile phone was working in a good condition without any defect as alleged by the complainant. Therefore the mobile phone was returned to the 1^st opposite party for handing over the same to the complainant.

          5. There is no manufacturing defect as alleged by the complainant and the mobile phone was perfectly in order, there is no necessity for the mobile phone to be replaced with a new one. As per the terms of the warranty if any spare parts to be replaced the same would be replaced with a new spare part and only in the event of spare part are not available or the mobile phone cannot be rectified the question of replacement of the mobile phone will arise. At no stretch of imagination the updating of software cannot be construed as a manufacturing defect.

          6. The mobile phone was ready for delivery and the 1^st opposite party had duly informed the complainant to take back to mobile as the mobile phone was rectified in all aspects, however the complainant had refused to collect the mobile from the dealer and was insisting on the replacement of the mobile with a new one. As stated above there is no defect in the mobile phone much less the manufacturing defect as alleged by the complainant and therefore as per the terms of the warranty, the complainant is not entitled for the replacement. There is no cause of action in filing this complaint and hence this 2^nd opposite party prays to dismiss the complaint with costs.

7. POINTS FOR CONSIDERATION:

          1. Whether there is deficiency in service on the part of the opposite parties?

          2. Whether the complainant is entitled to any relief? If so to what extent?

8. POINT NO :1 

          The 2^nd opposite party is the manufacturer of the Samsung Mobile Phone. The 1^st opposite party is the dealer of the 2^nd opposite party. The complainant purchased A710F Galaxy A7 (4G)  mobile phone  on payment of Rs.32,500/- under Ex.A1 bill from the 1^st opposite party on 25.03.2016. After purchase the complainant used  the mobile phone for few days and on 28.03.2016, he found that the product is hanging and overheating and hence he handed over the mobile to the 1^st opposite party and the same was collected after rectification on 04.04.2016. However again the same problems arose and hence on 11.04.2016 the complainant handover the product to the 1^st opposite party and after rectification the 1^st opposite party handover on 18.04.2016 saying that the software problem has been rectified. After receipt of the product the complainant immediately found the defects were not rectified and the same problem persisted and hence on 25.04.2016, he approached the 1^st opposite party and handover the product for rectification. The 1^st opposite party sent Ex.A2 e-mail dated 26.04.2016 that as soon as job card  was created he will revert the status about the product to the complainant. The opposite parties also admits that the complainant handover the mobile to the 1^st opposite party for rectification of defects.

          9. However the opposite parties 1 & 2 would contend that after rectification the complainant did not receive the mobile inspite of that the request made by the 1^st opposite party. Therefore the opposite parties admit that the product is having defects. It is the contention of the complainant that it was not properly rectified by the 1^st opposite party when he taken delivery on 04.04.2016 and again he handed over on 11.04.2016 and 25.04.2016 to the 1^st opposite party.  Hence the mobile was entrusted thrice to the 1^st opposite party for rectification proves that, the product is having inherent defect.

10. Further the 1^st opposite party would contend that he is not responsible for any manufacturing defects. The 1^st opposite party who had done the service was spoken that the product is having manufacturing defect. The 2^nd opposite party would contend that there is no manufacturing defect in the product. The 2^nd opposite party had not seen the product. Only the 1^st opposite party through his service men serviced the product and rectified and unable to rectify subsequently and said that it has manufacturing defect. Therefore, we hold that the complainant has proved that the product is having manufacturing defect.

          11. The service done by the   1^st opposite party after receiving mobile from the complainant and he was unable to rectify the defects. Therefore the 1^st opposite party unable to rectify the defects and the 2nd opposite party as a manufacturer both are liable for selling defective product to the complainant and hence we hold that the opposite parties 1 & 2 have committed deficiency in service.

12. POINT NO:2

          The complainant sought replacement of the product. We held above that the product is having manufacturing defects. Hence instead of ordering replacement of the product, it would be appropriate to order to refund the cost of the product and accordingly we direct the opposite parties 1 & 2 to refund the cost of the product of Rs.32,500/- to the complainant.

          13. The complainant purchased the product on 25.03.2016 and to rectify the defects, he handed over the mobile on 28.03.2016 after three days. Therefore within three days of the purchase of the mobile the same defective and the service man also failed to rectify the defects on all three occasions. Hence the complainant suffered with mental agony is accepted and for the same, it would be appropriate to direct the opposite parties 1 & 2 to pay a sum of Rs.10,000/- towards compensation for mental agony, besides a sum of Rs.5,000/- towards litigation expenses.

          In the result the Complaint is partly allowed. The  Opposite Parties  1 & 2 jointly or severally  are  ordered to refund a sum of Rs.32,500/- (Rupees thirty two thousand  and  five hundred  only) towards the cost of the product to the Complainant and also to pay  a sum of Rs. 10,000/- (Rupees ten  thousand only) towards compensation for mental agony, besides a sum of Rs. 5,000/- (Rupees five thousand only)  towards litigation expenses.

The above amount shall be paid to the complainant within 6 weeks from the date of receipt of the copy of this order failing which the above said amount shall carry 9% interest till the date of payment.

          Dictated to the Steno-Typist transcribed and typed by her corrected and pronounced by us on this 01^st day of February 2018.

 

MEMBER – I                                                                PRESIDENT

LIST OF DOCUMENTS FILED BY THE COMPLAINANT:

Ex.A1 dated 25.03.2016                   Cash Bill

Ex.A2 dated 26.04.2016                   E-mail sent by the 1^st respondent

Ex.A3 dated 26.04.2016                   Notice by the complainant

Ex.A4 dated 18.05.2016                   Reply by the 1^st respondent

LIST OF DOCUMENTS FILED BY THE OPPOSITE PARTIES :

 

                                      ……… NIL …….

 

 

 

 

MEMBER – I                                                               PRESIDENT