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.349/2013

(Admitted on 24.12.2013)

Sri Pradeep Pai,

Son of K.Gopal Krishna Pai,

Aged about 35 years,

Residing at D.No.19 5 242 1,

Bait Al Zuhair Apartments,

Doomappa Compound,

Pandeshwara,

Mangalore 575 001.                        …….. COMPLAINANT
 

(Advocate for Complainant: Sri Sudhakar Rai.S)

          VERSUS

1.  Proprietor,Authorised Signatory,

     Sri Balaji Mobile, Sales & Service,

     Main Road, Karkala.

2. Proprietor/Authorised Signatory,

     Chandu Service,

     Deepa Plaza Building,

     M.G. Road, Mangalore.

3. Authorised Signatory/Managing Director,

    CELKON IMPEX PVT., LTD.,

     3^rd Floor, Block II, My Home Hub,

     Hitech City, Madhapur,

     Hyderabad-500 061.                ……OPPOSITE PARTIES

(Opposite Party No. 1 to 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 defective 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.1 is the dealer, Opposite Party No.2 is the service center and the Opposite Party No.3 is the marketing the set. It is further stated that the complainant had purchased a mobile handset CELKON A119 for a sum of Rs.9,900/- on 16. 7.2013.   It is stated that within one month from the date of purchase the set developed some problem i.e. the set was not properly charging and complainant took the hand set to the shop of Opposite Party No.2 who is the authorized service center of CELKON MOBILE SET in Mangalore and narrated the problem.  It is stated that Opposite PartyNo.2 asked the complainant to keep the set in his shop for repair and he told that, he would return the set after repair.  Accordingly the complainant had handed over the set to Opposite Party No.2 amongst you, after two days Opposite Party No.2 has returned the set saying that he repaired the mobile set and set right the problem.

It is stated that, again within ten days after received from repairer, the mobile set developed the same problem, hence the complainant took the set to Opposite Party No.2 shop and handed over the set to him by briefing the problem.  Opposite party No.2 had returned the set after one week saying that the problem has been set right and now onwards there would not be any problem  and thereafter complainant issued legal notice on 1.11.2013 through his counsel, calling upon them to replace the set with new set or else pay back the amount incurred by him and still the Opposite party 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 replace the CELKON A119 mobile set with new set or else refund a sum of Rs.9,900/- being the cost of the mobile set along with 18% interest per annum from the date of complaint to till the payment of amount 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.1 to 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.1 to 3.  The acknowledgement marked as Court Doc. No.1 to 3. 

III.     1.  In support of the complaint, Mr.Pradeep Pai (CW1) – Complainant filed affidavit reiterating what has been stated in the complaint and produced Ex. C1 to C5.  Opposite Parties have not filed any version placed exparte.

          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 Celkon/HDA119 handset purchased on 16.7.2013 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:

          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 order to substantiate the averments made in the complaint the complainant i.e. CW-1 filed affidavit and also produced Ex.C1 to C5. The Ex.C1 is the original invoice issued by the Opposite Party No.1 reveals that the complainant paid Rs.9,900/- to purchase the above said handset on 16.7.2013 and Ex. C5 is the warranty card and Ex.C2 is the original job sheet dated 18.9.2013 reveals that the handset had a problem of charging, motherboard problem.  The Ex. C3 is the Lawyer’s notice and Ex. C4 is the Acknowledgments. From Ex. C3 i.e. job card reveals that within the warranty period that means within two months from the date of purchase the handset is caused certain problems and Ex.C2 reveals that the handset has given for repair to the Opposite Party No.2 who is the authorized service center and the handset is with the custody of Opposite Party No.2.  The above said material evidence produced before this FORA is not contradicted not contraverted by the opposite parties in this case. All the Opposite Parties inspite of receiving version notice issued by this FORA by RPAD not bothered to appear nor contest the case till this date.  The entire evidence placed on record is not challenged by the Opposite Parties.  Hence the unrebutted evidence requires no further proof. 

          Since the handset is with the Opposite Parties custody, it is proved beyond doubt that the handset sold by the Opposite Party No.1 and manufactured by the Opposite Party No.3 proved to be 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, we hereby directed the Opposite Party No.1 to 3 are jointly and severally shall refund Rs.9,990/- (Rupees Nine thousand nine hundred ninety only) i.e. cost of the mobile handset to the Complainant by retaining the handset which is already in Opposite parties possession.  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 the result, we pass the following:        

ORDER

The complaint is allowed. Opposite Party No.1 to 3 are jointly and severally shall refund Rs.9,990/- (Rupees Nine thousand nine hundred ninety only) i.e. cost of the mobile handset to the Complainant by retaining the handset which is already in Opposite party  possession.  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 Parties 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.

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 7 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.Pradeep Pai  – Complainant.

Documents produced on behalf of the Complainant:

Ex C1: 16.7.2013: Original bill issued by O.P.No.1.

Ex C2: 18.9.2013: Original Job sheet issued by O.P.No.2

Ex C3: 1.11.2013: Office copy of the legal notice.

Ex C4: Postal acknowledgment

Ex C5: Warranty card.

COURT DOCUMENTS:

DOC.No.1 to 3: Postal Acknowledgments.

Witnesses examined on behalf of the Opposite Parties:

- Nil –

Documents produced on behalf of the Opposite Parties:    

- Nil –

Dated:31-07-2014                                 PRESIDENT