DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD
Dated this the 12th day of December 2019
Present: Smt.Shiny.P.R, President
: Smt.Vidya.A, Member Date of Filing: 01/08/2018
CC No.94/2018
Satheesh.S,
S/o.Shanmughan,
Keyod House, - Complainant
Vandithavalam.P.O,
Palakkad - 678 534.
V/s
Super Phone,
Near Public Library, -Opposite party
Sulthanpet, Palakkad.
(Adv.Renjith Krishnan.V)
O R D E R
By Smt.Vidya.A, Member
Brief facts of complaint are:
The Complainant purchased a mobile phone named RED MI NOTE 4 GOLD for Rs.12,500/- on 25.10.2017 from the opposite party’s shop. Within two months of its purchase, the phone became defective and the complainant returned it to the opposite party’s shop for repairing, in the month of January 2018. He entrusted the mobile set, original box, guarantee card and the purchase bill with opposite party at that time. Though he contacted the opposite party so many times to get back these, opposite party gave back only the bill for the purchase of the phone. The complainant purchased the mobile phone based only on the assurance given by the opposite party that it has one year guarantee. The complaint is working as electrician and due to the defect in the mobile phone, he lost so many works and suffered financial loss and mental agony. Even though the complainant repeatedly visited the opposite party’s shop, they were not ready to replace or repair the phone.
Hence this complaint was filed for the issuance of direction to the opposite party to replace the mobile phone worth Rs.12,500/- or to refund the price thereof and to pay an amount of Rs.25,000/- as compensation on account of mental agony, financial loss and litigation expenses caused to him.
Complaint was admitted and notice was issued to opposite party. The opposite party entered appearance and filed written version. The main contentions raised in the version are
1. The complainant’s case is false, wholly misconceived and not maintainable
2. It is true that the complainant purchased a mobile set RED MI NOTE 4 GOLD worth Rs.12,500/- from the opposite party’s shop on 25.10.2017. According to the opposite party, the phone became defective because of the mishandling of the same by the complainant. As the phone was working properly for the first two months, there is no manufacturing defect in that phone. The opposite party is only having the sale of different brands of mobile phones and they are not engaged in the after sale services; it is the duty of the respective manufacturers of the phones. For any repair, the complainant has to give the phone to the service centre of the respective brand. The complainant purchased the phone after analyzing the features and cost of different types of mobile phones. He had gone through the catalogue describing its functioning, service procedures and different service centers before purchasing the phone. There is no unfair trade practice from the side of the opposite party in making the complainant purchasing the phone.
3. The complaint is defective for non-joinder of necessary parties. There is no consumer relationship between the complainant and opposite party. The complainant is a consumer of the manufacturer of the phone and not of the seller. So the manufacturer has to be joined as party. The complainant is only responsible for the defect in the phone and it occurred solely due to his mishandling. The complainant has to claim the reliefs if any from the manufacturer and not from opposite party.
4. Opposite party is not responsible for the loss if any caused to the complaint and the complainant has to be dismissed with cost of opposite party.
Both parties filed their affidavit and Ext.A1 marked from the side of the complainant. No documents from the side of the opposite party.
The main issues raised in this case for consideration are.
- Whether there is any deficiency in the service of the opposite party?
- What is the relief as to cost/compensation?
Issues 1 & 2
Heard.
From Ext.A1, it is clear that the complainant purchased mobile phone from opposite party’s shop. In his version, the opposite party admits that the complainant purchased the mobile set RED MI NOTE 4 GOLD from his shop on 25/10/2017 for Rs.12,500/-. He also admits that the phone became defective after two months of its purchase. The non-functioning of the mobile phone within a very short period of its purchase itself shows that it is a case of manufacturing defect. So the opposite party being the seller of the phone is responsible for its service. The seller is primarily liable to repair the phone if any defect occurs during the guarantee period. Normally a layman will approach the seller if any defect occurs in the product he buys. He won’t directly approach the manufacturing company or the service centers. The seller has the responsibility to repair it through service centers. He cannot escape from his liability by simply saying that there is no consumer relationship between the purchaser and the seller.
The buyer does not have any contract with the manufacturing company. He buys the things from the retailers. If the retailers sell a product which is not in conformity with the warranty given by the manufacturer, then the retailer is also liable for the sale of defective products.
We know that the seller has no authority from its own to replace any mobile set by another defect free set and only the manufacturing company has such authority. But it should be remained in mind that the seller/retailer is selling the product on behalf of the company and in this regard, the seller can be considered as an agent of the company. The seller can take any proper action regarding removal of the manufacturing defects or replacement after taking cognizance from the company. So the seller cannot avoid its responsibility. In the case, it is not necessary to implead manufacturer as a party.
The complainant in his affidavit has stated that the mobile phone and the guarantee card are with opposite party. The opposite party has not denied the above averment. So it is presumed to be with opposite party and they have not produced the mobile phone or guarantee card before the Forum.
The contention raised by the opposite party that the working of the phone has stopped due to the mishandling of the same by the complainant cannot be admitted because the phone became defective within two months of its purchase. Further there was no attempt on the part of the opposite party to cross examine the complainant to prove his contention.
Hence it is clear that there is a deficiency in service on the part of opposite party. No attempt was made by them for repairing it through service centers or for replacing.
In such circumstances, the complainant is entitled to get a refund of Rs.12,500/- from the opposite party. As the phone became defective within two months of its purchase and despite his repeated demands, the opposite party did not care to repair the phone or replace it, it is clear that he suffered mental agony.
In the result complaint is allowed.
We direct opposite party to pay Rs.12,500/-(Rupees Twelve thousand Five hundred only) towards cost of mobile, Rs.1,000/-(Rupees One thousand only) towards compensation for mental agony suffered and cost of Rs.1,000/- (Rupees One thousand only) for litigation expense.
Order shall be complied within one month from the date of receipt of order, failing which the complainant is entitled for 9% interest for the whole amount from the date of order till realization.
Pronounced in the open court on this the 12th day of December 2019.
Sd/- Shiny.P.R. President
Sd/-
Vidya.A
Member
Appendix
Exhibits marked on the side of complainant
Ext.A1 - Bill issued by the opposite party to the complainant dated 25.10.17.
Exhibits marked on the side of Opposite parties
NIL
Witness examined on the side of complainant
NIL
Witness examined on the side of opposite parties
NIL
Cost : Rs.1,000/-
