BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 21st of January 2011
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.141/2010
(Admitted on 07.05.2010)
Mr.Dolphy Pius Pinto,
So. Late Marian Pinto,
Aged about 52 years,
Working as Chief Engineer Merchant Navy,
Residing at Dorlisa,
Opposite Sacred Heart School,
Church Compound Road,
Kulshekar, Mangalore Taluk,
Dakshina Kannada, Karnataka. …….. COMPLAINANT
(Advocate for the Complainant: Sri.O.T. Bhat).
VERSUS
1. Sony Ericsson Mobile Communications,
AB, SE 22188 LUND, Sweden.
2. Sangeetha Mobiles (P) Ltd.,
H.O. No.37, Sannidi Road,
Basavanagudi,
Bangalore.
3. Sangeetha,
Pioneer then Leader now,
Bharath Mall,
Mangalore, Dakshina Kannada.
4. Sony Ericsson India,
Accel – Mangalore,
Accel Frontline Services Limited,
ABS Plaza, 2nd Floor,
Kadri, Mallikatte Road,
Mangalore, Dakshina Kannada.
(Opposite Party No.4: Appeared in person).
5. Sony Ericsson Mobile Communications India (P) Ltd.,
4th Floor, Dakha House,
18/17, WEA Carolbagh,
New Delhi – 110 005,
India. ……. OPPOSITE PARTIES
(Opposite Party No.1, 2, 3 and 5: Exparte).
***************
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 and 13 of the Consumer Protection Act alleging defect in mobile handset against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainant submits that, Opposite Party No.1 is the manufacturer of Sony Ericsson Handset phone, Opposite Party No.2 is the agent of the Opposite Party No.1, Opposite Party No.3 is the local agent of Opposite Party No.1, Opposite Party No.4 is the service provider of the Sony Ericsson Handset in Mangalore, Opposite Party No.5 is the importer cum Company Service Provider of Sony Ericsson Handset in India.
It is stated that, the Complainant purchased a Sony Ericsson Handset phone C 905 model bearing IMEI/Serial Number 357602026801524 manufactured by Opposite Party No.1 through its local agents/distributors i.e., Opposite Party No.3 on 31.12.2009 as per invoice No.SI/MNG/7581 for a sale price of Rs.24,572.12. That the above said handset found to be defective from the beginning itself as the main key pad was not functioning properly, the same suffered from manufacturing defect. Thereafter, the Complainant had entrusted the original handset to the Opposite Party No.4 being the local service provider to rectify the defect. It is stated that, the date of handing over the handset, the Opposite Party promised that, they will deliver the handset within two or three days but they failed to do so. The Complainant was disappointed with the sale services required to be rendered by the Opposite Parties, even till this date the handset is not delivered back after rectifying the defects nor the mobile handset phone replaced by a new handset.
It is stated that, the Complainant deprived with the user of newly purchased mobile handset ever since 17.02.2010 till this date and put to inconvenience. Thereafter issued a legal notice dated 11.03.2010 calling upon them to pay the price of the mobile handset or provide with a new mobile handset but the Opposite Parties failed to do the same which amounts to deficiency and hence the above complaint filed under Section 12 and 13 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to refund a sum of Rs.24,572.12 being the cost of the mobile handset and also claimed Rs.9,79,000/- as compensation and cost of the proceedings.
2. Version notice served to the Opposite Parties by RPAD. Opposite Party No.1, 2, 3 and 5 despite of serving notice neither appeared nor contested the case till this date. Hence, we have proceeded exparte as against the Opposite Party No.1, 2, 3 and 5. The acknowledgement placed before the FORA marked as court document No.1 to 4.
Opposite Party No.4 appeared in person filed version admitted the purchase of the mobile handset but it is stated that, mobile was brought to the service centre on 17.02.2010 with a problem in the key pad, the fault was taken care of, keypad replaced free of cost under warranty and the mobile was ready for delivery on 08.03.2010. It is stated that, the Opposite Parties called upon the Complainant to take back his mobile for which he refused and thereafter the issue was discussed at Head Office and accepted to replace the mobile since the Complainant insisted the replacement and called upon to replace the handset but the Complainant placed a demand for a model priced higher than the one owned by him and further demanded cash compensation to arrive of a settlement which hampered an amicable settlement taking place and contended that there is no deficiency and best service was provided to the Complainant.
It is further submitted that, contract of warranty only stipulates replacement and does not warrant any cash payments and stated that, they are ready for replace of the handset and prayed for dismissal of the complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the Sony Ericsson Handset phone purchased by him from the Opposite Party No.3 proved to be defective?
- Whether the Complainant proves that the Opposite Parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Mr.Arthur J.Pereira (CW1) – General Power of Attorney Holder of the Complainant filed affidavit reiterating what has been stated in the complaint and got marked Ex C1 to C7 as listed in the annexure. One Ms.C.Vidya (RW1) - Location In-charge of the Opposite Party No.4 filed counter affidavit and answered the interrogatories served on him. The Complainant produced notes of arguments.
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): Affirmative.
Point No.(ii) to (iv): As per the final order.
Reasons
5. Point No. (i) to (iv):
The facts which are not in dispute is that, on 31.12.2009 Complainant purchased a Sony Ericsson Handset phone C 905 model, bearing IMEI/Serial Number 357602026801524 manufactured by Opposite Party No.1 for a sale price of Rs.24,572.12 from the Opposite Party No.3 who is an agent/ distributor of the above handset. It is also not in dispute that, the above product purchased by the Complainant was covered by warranty. Further, it is admitted that, on 17.02.2010 the Complainant brought the mobile to the service centre with a problem in the keypad and handed over to the service centre i.e., within the warranty period.
Now the point in dispute between the parties before this FORA is that, according to the Complainant, the Sony Ericsson Handset phone purchased by him for his own use was found to be defective from the beginning itself, as the main keyboard of the said handset was not functioning properly since the same suffered from manufacturing defect. Thereafter, immediately on 17.02.2010 handed over the handset to the service centre i.e., Opposite Party No.4 and requested them to rectify the defects and also registered the complaint dated 25.02.2010 but the Opposite Parties promised to handover the handset within two or three days but the handset is not delivered till this date which amounts to deficiency.
On the other hand, the Opposite Party No.4 interalia contended that, the mobile was brought to their service centre on 17.02.2010 with problem in the keypad, the keypad was replaced free of cost under warranty and the mobile was ready for delivery on 8th March 2010 and called upon the Complainant to take back his mobile for which the Complainant refused stating he required a replacement. After discussing with the head office of the Opposite Party, the Opposite Parties accepted to replace the mobile but the Complainant placed a demand for a model priced higher than the one owned by him and demanded cash compensation to arrive at a settlement which hampered on amicable settlement and stated that, they are ready to replace the handset as per the desire of the Complainant.
The Complainant filed oral evidence by way of affidavit and produced Ex C1 to C7. The Opposite Party also filed oral evidence by way of affidavit.
On perusal of the oral as well as documentary evidence placed on record, we find that, the Complainant had purchased a Sony Ericsson Handset on 31.12.2009 for a sale price of Rs.24,572.12 and the said handset manufactured by the Opposite Party No.1. Within the warranty period i.e., on 17.02.2010 the handset was brought to the service centre of the Opposite Party with a problem in the keypad. The Opposite Party received the handset for repair is admitted. However, we have noticed that, the Opposite Party No.4 in their version para No.3 and 4 specifically stated that, the mobile was brought to their service centre on 17.02.2010 with problem in the keypad, the fault was taken care of, keypad replaced free of cost under warranty and the mobile was ready for delivery on 8th March 2010, they have called upon the Complainant to take back his mobile for which he refused stating he required a replacement. But the Opposite Parties failed to produce any documents/notice to show that the mobile handset was ready for delivery on 8.3.2010 and they have called upon the Complainant to take back his mobile for which he refused. Except the bare version, nothing has been produced on record to establish that they have called for the Complainant to collect the mobile handset which was ready for delivery and the same has been refused by the Complainant. The Opposite Party should have produced the document to show on which date they have called upon the Complainant to take back his mobile. Since there is no material/cogent evidence available on record to show that the Opposite Parties have called upon the Complainant to take back his mobile when the set was ready. Further, we have observed that, the Opposite Parties though filed affidavit but not attested and the same is not in accordance with Law. Hence, it cannot be treated as affidavit in chief. The adverse inference can be drawn against the Opposite Parties that, the version filed by the Opposite Party to that extent is false. Hence, we can draw an inference that the handset sold by the Opposite Parties has some problem and it was not working. However, the Opposite Party No.4 in their version in para No.12 agreed to replace the handset of the Complainant. That itself is sufficient to hold that the handset sold by the Opposite Parties is defective and it is not in working condition. Admittedly, the handset was received on 17.02.2010 for repair but till this date the same is not returned to the Complainant after repair. That means, the Complainant was deprived of use of the handset from 17.02.2010 till this date amounts to deficiency in service.
Generally, if the 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 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 handset in this case.
The Hon’ble National Commission reported in 2009 I CPJ (80) held as under:
“Defect found immediately after purchase, could not be rectified, joint and several liability imposed by the District Forum upheld in appeal holding that dealer having received the amount, undertaken free service and rectify defects during warranty cannot escape liability towards manufacturing defects found in the product”.
The above principles observed by the Hon’ble National Commission applicable to the case on hand.
In view of the above discussion, we hold that the service rendered by the Opposite Parties also deficient and the handset sold by them is defective, hence we hereby direct the Opposite Party No.1, 2, 3 and 5 jointly and severally to replace the handset with a new one of the same series free of cost along with fresh warranty and also pay Rs.10,000/- (Rupees ten thousand only) as compensation for the inconvenience and mental agony and Rs.1,000/- as cost of the litigation expenses. Compliance/payment shall be made within 30 days from the date of this order.
There is no contractual relationship between the Complainant and Opposite Party No.4 i.e., the service centre. Hence, complaint against Opposite Party No.4 is hereby dismissed.
6. In the result, we pass the following:
ORDER
The complaint is partly allowed. Opposite Party No.1, 2, 3 and 5 are jointly and severally directed to replace the handset with a new one of the same series free of cost along with fresh warranty and also pay Rs.10,000/- (Rupees ten thousand only) as compensation and Rs.1,000/- (Rupees one thousand only) as cost of the litigation expenses. Compliance/payment shall be made within 30 days from the date of this order.
On failure to comply the same, the Opposite Party No.1, 2, 3 and 5 are directed to refund the entire amount of Rs.24,572.12 i.e., the sale price, compensation and cost of the proceedings along with interest at 10% p.a. from the date of failure till the date of payment.
Complaint against Opposite Party No.4 is hereby dismissed.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
(Page No.1 to 11 dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 21st day of January 2011.)
PRESIDENT MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mr.Arthur J.Pereira – General Power of Attorney Holder of the Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 31.12.2009: Original credit bill issued by the Opposite Party No.3 for purchase of Mobile handset.
Ex C2 – 17.02.2010: Acknowledgement by the Opposite Party No.4 for being received complaint from the Complainant.
Ex C3 – 25.02.2010: complaint sent through E-mail to the Opposite Party No.5.
Ex C4 – 03.03.2010: Reply from the Opposite Party No.5 to the complaint given by the Complainant.
Ex C5 – 11.03.2010: Copy of the lawyer’s notice sent to the Opposite Party No.1 to 5.
Ex C6 - : Postal acknowledgements ( 4 in numbers).
Ex C7 – 13.05.2010: Original General Power of Attorney executed by the Complainant in favour of Mr.Arthur J Pereira.
Witnesses examined on behalf of the Opposite Party No.4:
RW1 – Ms.C.Vidya - Location In-charge of the Opposite Party No.4.
Documents produced on behalf of the Opposite Parties:
Dated:21.01.2011 PRESIDENT
