By. Smt. Reninol Mathew, Member:-
The complaint is filed to replace the defective mobile handset with a new one and to get compensation and cost of this proceedings.
2. Brief of the complaint:- On 21.03.2013 the complainant purchased a mobile set of Samsung company Model GT-E 1282T worth Rs.1,850/- from the shop of opposite party No.1. The salesman of opposite party No.1 offered an additional warranty of one year and the opposite party No.3 the salesman adviced that this is one of the best model of mobile handset. After few days the phone suddenly switched off, complainant tried to switch on the handset but he could not switch on it. Then the complainant reported this to the opposite party No.1. The sales man of opposite party No.1 also tried to switch on the same but he could not switch on it. From there opposite party No.3 made an assurance that he is ready to take necessary actions to cure the defects by sending it to the authorized service center of opposite party No.1. Complainant entrusted the whole set including charger to opposite party No.1. After few days complainant approached to opposite party No.1 and enquired about it but opposite party No.3 behaved in an indecent manner and returned the handset stating that the defect is not curable. The complainant alleges that opposite party No.1 and 3 willfully sold the defective mobile handset to him. Now they are escaping from the liability by saying that they were not dealing with the service problems. Hence filed this complaint to replace a new phone instead of the defective one together with cost and compensation.
3. Notices served to opposite parties. Opposite party No.1 not appeared and not filed version, hence set ex-parte. Opposite party No.2 and 3 appeared and filed version.
4. Opposite parties No.2 and 3 filed version in short it is as follows:- Opposite party No.2 stated that the complaint is not maintainable, there is no unfair trade practice on the part of the opposite party. They were never shown any misbehavior towards the complainant. The allegations and averments in the complaint are baseless and wrong. Opposite party No.3 admitted the purchase of the above said mobile handset and opposite party No.3 is only a salesman of opposite party No.1, he never offered any additional warranty to this mobile handset. He is not a necessary party to this case and he prays to exempt him from the liabilities of this case.
5. On considering the complaint and version the following points are to be considered:-
1. Whether there is any unfair trade practice on the part of the opposite parties?
2. Relief and Cost.
6. Point No.1:- The complainant filed chief affidavit and examined as PW1, Exts.A1 and A2 were marked. Ext.A1 is the Purchase Bill dated 21.01.2013. Ext.A2 is the Job Sheet given by the opposite party No.3 to the complainant. The mobile handset with charger, headphone, warranty card are marked as MO1 series. Subsequently complainant filed I.A No.8/2014 and I.A No.9/2014 to implead and amend supplementary opposite party No.4 the manufacturer, that was allowed but complainant not carried out the amendment. The opposite party No.2 filed I.A No.10/2014 challenging the maintainability of the complaint, complainant filed counter since there is no merit in this petition I.A No.10/2014 is dismissed. Opposite parties No.1 and 3 not present to adduce oral evidence. When the case was posted for opposite parties evidence, opposite party No.2's counsel reported no instruction. Hence opposite parties No.2 and 3 are also set ex-parte. Hence opposite parties evidence closed and heard the counsel for the complainant. Opposite party No.3 admitted the purchase of the mobile handset. Ext.A2 Job sheet was given by opposite party No.3 from the shop of opposite party No.1. This proves that the complainant entrusted the defective mobile handset to opposite party No.1's shop. In Ext.A2 it can be seen that the actual complaint is that the handset is – dead( No power on), so the 'complaint' is also admitted by the opposite parties No.1 and 3. At the time of evidence complainant submitted that he had entrusted the mobile handset to opposite party No.1, from there opposite party No.3 promised that they are ready to take immediate action to repair the handset but at the time of cross examination opposite party No.2 raised a contention that manufacturer was not impleaded as a party in this case. Actually that was not done by the complainant. Here the allegations of the complainant is that opposite party No.2 and 3 sold the defective mobile handset and now they are escaping from the liabilities.
7. On going through the evidences and records we finds that the dealer also is responsible for the defects of the product that has sold by them and a dealer cannot wash off his hands after selling the defective product. After making a sale, shift his burden to the manufacturer or insist that the manufacturer be added as a party to the proceedings is not proper. The consumer is primarily concerned with a dealer from whom he buys goods. Privity of contract is between them and not with the manufacturer. It is the dealer who take care of the complainant's concerns thereafter he can take up the matter with the manufacturer for securing his own interests otherwise the consumer protection Act would become totally unworkable and for every small complaint a consumer need not to implead the manufacturer who although no doubt a proper party but is not a necessary party. The liability of the dealer for the sale of the defective goods to the consumer is beyond doubt. So there is unfair trade practice on the part of the opposite parties. The Point No.1 is found accordingly.
8. Point No.2:- The Point No.1 is found in favour of the complainant, hence the complainant is entitled to replace the defective mobile handset with a new one with reasonable cost and compensation. The Point No.2 is decided accordingly.
In the result the complaint is partly allowed. Opposite party No.1 is directed to replace the defective mobile handset with a new one of the same model and also he is directed to pay Rs.500/- (Rupees Five Hundred Only) as cost and compensation of the proceedings. The complainant is directed to return the defective handset to the opposite party No.1. This Order must be complied by the opposite party No.1 within 30 days from the date of receipt of this Order.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 27th day of June 2014.
Date of Filing:26.04.2013.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:
PW1. Sreejan. Complainant.
Witness for the Opposite Parties:
Nil.
Exhibits for the complainant:
A1. Purchase Bill. Dt:21.01.2013.
A2. Copy of Job Sheet. Dt:04.04.2012.
MO1. Mobile Phone with Charger, Headphone and Warranty Card.
Exhibits for the opposite Parties.
Nil.
Sd/-
PRESIDENT, CDRF, WAYANAD.
