By. Sri. Chandran Alachery, Member:
The complaint is filed Under section 12 of the Consumer Protection Act for an Order directing the opposite party to refund Rs.10,800/- the price of the mobile phone with 18% interest from 10.05.2013 and to pay Rs.5,000/- as compensation and cost of the proceedings.
2. Brief of the complaint:- The complainant purchased a Micromax A110 mobile phone vide EMI number911306900844431 and charger from the opposite party on 08.05.2013 for a price of Rs.10,800/-. The very next day, the mobile phone has shown some defects that are horrible sound inside the machine and during the talk the sound were discontinued. The complainant approached the opposite party for replacement of the phone. The opposite party did not replace or give proper service to cure the complaint. Prior to purchase, the opposite party offered warranty and proper service and concerned to purchase the mobile. The opposite party supplied a defective set to the complainant. The act of the opposite party amounts to unfair trade practice. Hence this complaint.
3. On receipt of complaint, Notice was issued to opposite party and opposite party appeared before the Forum and filed version. In the version, the opposite party admitted the purchase but denied all other allegations in the complaint including the defect alleged and the entrustment of mobile for service. The opposite party contented that the manufacturer of the mobile set had appointed an authorized service center in Wayanad district for service of the handset. After purchasing the handset, the complainant contacted the opposite party for checking the audio clearance of the set, the opposite party directed the complainant to approach the service center at Kalpetta. The complainant accordingly approached the service center on the same date and thereafter the complainant directly dealed with the service center. After this incident, the complainant neither approached nor contacted this opposite party till the date of filing complaint. There is no deficiency of service from the opposite party in dealing the matter.
4. On going through the complaint, documents, affidavit of both parties, the Forum raised the following points for consideration:-
1. Whether there is any deficiency in service on the part of the opposite parties?
2. Relief and Cost.
5. Point No.1:- In addition to complaint, the complainant filed proof affidavit and documents. The complainant is examined as PW1 and documents are marked as Ext.A1, A1(a) and Ext.A2 and MO1. MO1 is the Mobile handset and Ext.A1 is the Bill for the purchase of mobile handset. Ext.A1(a) is the portions of Ext.A1 which shows the service points of opposite party. Ext.A2 is the Service Job Sheet issued by opposite party No.1 to the complainant at the time of entrustment of mobile for service. Opposite party is examined as OPW1. On going through the Ext.A2 document it is seen that there is a complaint in the mobile set and it is noted as “call noise” in the service job sheet issued by the opposite party to the complainant. The complainant did not take any steps to implead the manufacturer and service center as opposite parties even if there is a plea of non-jointer of necessary parties by the opposite party. The case of the complainant is that the opposite party itself issued service job sheet to the complainant after stating the complaint and there is no necessity of impleading the manufacturer or service center as opposite party.
6. 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 service center to insist that they 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 party.
7. On going through the evidences of the complainant and opposite party the Forum found that the opposite party did not take reasonable and adequate steps to cure the defects and redress the grievances of complainant. Ext.A2 document is prepared by the opposite party and noted the complaint as “call noise” in the document. In the cross examination of OPW1, OPW1 stated that the complaint is noted only after checking the mobile set and finding the call noise in the set. Usually when an ordinary common man purchases an item from a shop the purchaser will first approach the shop from where he purchased it to cure defects if any occurred with the item. It is the duty of the seller to see that the defect is cured. The seller cannot sit as a silent spectator. Here, the opposite party failed to give their service properly to the complainant. So by analysing all the evidences, the Forum found that there is deficiency of service from the part of opposite party in dealing the matter. The Point No.1 is found accordingly.
8. Point No.2:- Since the Point No.1 is found against the opposite party, the opposite party is liable to pay the cost and compensation to the complainant. The Point No.2 is decided accordingly.
In the result, the complaint is partly allowed and the opposite party is directed to pay Rs.10,800/- (Rupees Ten Thousand and Eight Hundred Only) to the complainant being the price of the Micromax A110 mobile phone vide EMI number 911306900844431 and charger. The opposite party is also directed to pay Rs.500/- (Rupees Five Hundred Only) as cost of the proceedings and Rs.500/- (Rupees Five Hundred Only) as compensation to the complainant. The complainant shall return the mobile set and charger described above to the opposite party on getting the above amounts ordered by the Forum. The opposite party shall comply the Order within 30 days from the date of receipt of this Order, failing which the complainant is entitled to get 12% interest for the whole sum thereafter.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 8th day of October 2014.
Date of Filing:13.06.2013.
PRESIDENT :Sd/-
MEMBER :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
PRESIDENT, CDRF, WAYANAD.
APPENDIX.
Witness for the complainant:-
PW1. Nisha Varghese. Complainant.
Witness for the Opposite Parties:-
OPW1. Shaneef. Accountant, 3G Mobile World,
Kalpetta.
Exhibits for the complainant:
A1. Copy of Bill. Dt:08.05.2013.
A1(a). Portion of Bill.
A2. Service Job Sheet. Dt:14.05.2013.
Exhibits for the opposite party:-
Nil.
Sd/-
PRESIDENT, CDRF, WAYANAD.
