D.o.F:23/9/2011

D.o.O:29/2/2012

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD

                                             CC.NO.236/11

                     Dated this, the 29th     day of February 2012

PRESENT:

SRI.K.T.SIDHIQ                           : PRESIDENT

SMT.P.RAMADEVI                      : MEMBER

SMT.BEENA.K.G                         : MEMBER

P.U.Premanand,

Sreepuram, Po.Thayannur                                       : Complainant

(in person)

1.Royal Village,

Ground floor, Shop.No.5, Muncipal  Complex,

New Bus Stand,Kasaragod.

(Adv.M.Mahalinga Bhat,Kasaragod)

2. E.Planet, Ist Floor, City Centre, Bank Road,        : Opposite Parties

Kasaragod.(Exparte)

                                                                             ORDER

SMT.P.RAMADEVI         : MEMBER

The facts of the complainant in  brief   are as follows:

  The complainant purchased a Karbonn 1414  model  Mobile  phone  with a sim card for  an amount of  `4950/- on 27/5/2011 from the Ist opposite party.  After three days of its purchase it was not working properly and as per the instruction of Ist opposite party the complainant approached 2^nd opposite party, the service center.  But the phone  was not repaired and saying that no spare parts available.  Subsequently many occasions the complainant used to visit the 2^nd opposite party for repair  but the mobile set was not repaired so far.  Moreover the complainant was induced to purchase the mobile because  the catalog of the handset specifically mentioned that ‘Java Supportive’ and shown all the details of  Java applications.  Moreover  he asked  about the  Java application to the ist opposite party and they promised that Java application can be done  through this handset for the purpose of using internet also the complainant purchased this mobile phone set.  But the above  facility is not available in his mobile. Hence this complaint is filed for necessary reliefs.

  2.  On receipt of notice from  the Forum Ist opposite party appeared through counsel and filed their version .  2^nd opposite party even though served  notice but not turned up, hence he was called absent and set exparte.

            According to Ist opposite party the complainant is not maintainable before this forum since this Forum has no territorial jurisdiction to  try the case, as per the terms and conditions of the warranty and only Bangalore  courts have  exclusive  jurisdiction to decide the disputes.  The Ist opposite party again submits that the United Tele Link Ltd Company is the manufacturer of the product and is a necessary party in this complaint.  According to Ist opposite party the product is to be repaired by the authorized service centre and this opposite party directed the complainant to 2^nd opposite party.  Hence this opposite party is not liable to compensate the complaint.  Hence the allegation against this opposite party is not sustainable.

3.  Here the complainant is examined as PW1 and Exts.A1 to A4 marked.  On the side of opposite party neither oral   nor  documentary evidence is adduced. 

4. On considering the facts of the case the following issues raised for consideration

1. Whether the Forum lacks jurisdiction to try the case as per the terms  and conditions of warranty card?

2.Whether  the complaint is bad for non joinder of necessary party

3. Whether there is any deficiency in service on the part of the opposite party or is that  any  unfair trade practice?

4. If so what is the order as to  relief and  costs.

5.Issue No.1: The opposite party taken a contention that as per the terms and conditions of the warranty card only courts at Bangalore have exclusive  jurisdiction to entertain this complaint.  Here the complainant purchased the subject matter of the complaint is from Kasaragod and he used it within the limits of Kasaragod.  So cause of action  arose within the limit  of Kasaragod District and moreover the terms and conditions of the warranty are a unilateral one and it is not a bilateral  agreement  hence the complaint is not bound to comply  the terms and conditions of the warranty.  Hence he need not go  Bangalore  courts.  This Forum has ample jurisdiction to try this case.

6.  Here the 2^nd issue regarding the non joinder of necessary parties.  According to Ist opposite party the mobile  phone under dispute is manufactured by the United Tele Links Ltd and the said manufacturer  is liable to compensate the  consumers and the manufacturer is a necessary party in this case.  But as per the observation  of the appellate courts the manufacturer need not be made party   the consumer can approach  the dealer if any dispute arose and the compensation if any paid by the  the dealer or the service centre, they can very  well reimburse it from  the manufacturer.  Hence the issue regarding non joinder of necessary party is answered accordingly.

7.  Here the complainant purchased this Karbonn1414-model  not only for the purpose  of ordinary use of the phone but for the purpose of using internet and also for using Java applications  as stated in the advertisement.  But  after the purchase of the set he came to know that the above facilities are not   available in the set.  Moreover only after 3 days of its purchase the mobile set becomes dead.  Even the opposite parties failed to provide necessary services to the complainant saying that spare parts are not available.  The complainant was waiting for 3 ½  months  for the purpose of spare parts. That means the opposite parties are failed to give better after sale service to the complainant.  This itself amounts to deficiency in service on the part of the opposite party.  Moreover giving misleading advertisement  is an  unfair trade practice.  Hence we are of the  opinion that the opposite parties are liable to compensate the complainant for  deficiency in service and for  unfair trade practice.

8.  Therefore  the complaint is allowed and the opposite parties are jointly and severally directed to pay `4950/-( being the purchase price of the phone and the  price of memory card) to the complainant on receiving the  Karbonn1414 model mobile phone with sim card from the complainant and also directed to pay a cost of  `5000/- to the complainant within 30 days from the date of receipt of copy of the order.  If the opposite parties intends to proceed against the manufacturer the opposite parties can realise the amount from the manufacturer through legal means.

Exts:

A1-Warranty card

A2- User Manual

A3&A4-job sheet

PW1-P.U.Premanand-complainant

MEMBER                                    MEMBER                             PRESIDENT

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