BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 18th of January 2012
PRESENT
SMT. ASHA SHETTY : HON’BLE PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.257/2010
(Admitted on 1.10.2010)
Mr.Chandrashekar.K.,
So Babu Acharya,
Aged 40 years,
R at A 2 11, Police Lane,
Pandeshawara,
Mangalore. …….. COMPLAINANT
(Advocate for Complainant: Sri Shashiraj Rao Kavoor)
VERSUS
1. The Authorized Officer,
KARBONN mobiles,
A UTLJaina Venture,
Corporate Office,
L 13, Diamond District,
Airport Road, Kodihalli,
Bangalore 560 008.
2. The Proprietor,
EP Communications,
Near Pinto’s Bakery,
Bejai Church Road,
Mangalore-575 004.
3. The Proprietor,
Accel Frontline,
Near City Hospital, Kadri,
Mangalore. ……. OPPOSITE PARTIES
(Advocate for Opposite Party No.1 & 3: Exparte)
(Advocate for Opposite Party No.2: Sri. Shivarama Rao.K)
***************
ORDER DELIVERED BY HON’BLE PRESIDENT SMT. ASHA SHETTY:
1. This complaint is filed under Section 12 of the Consumer Protection Act alleging defect in handset against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The Complainant stated that, he had purchased a KARBONN K 442 GSM Dual Set mobile handset from the Opposite Party No.2, manufactured by Opposite Party No.1 on 22.01.2010 for a sum of Rs.3,200/-. It is stated that the very beginning itself the said mobile handset started giving trouble and found it very difficult to use it for his personal use. It is stated that, the keys of the mobile were not working properly and various options in the handset including the video recording options were not working and he could not see the missed calls and list of callers. It is stated that, inspite of full charge, the battery was low in the handset. Thereafter, on 22.07.2010 the Complainant approached the Opposite Party No.2 for clarification and asked to replace the handset but the Opposite Party No.2 refused to comply the demand and thereafter the Complainant asked the Opposite Party No.2 to repair the handset but the Opposite Party No.2 asked the Complainant to approach Opposite Party No.3 who is the authorized service centre. The Complainant approached the Opposite Party No.3 but the Opposite Party No.3 in the above address stated that he is not an authorized service centre and refused to repair the same. It is stated that, the Complainant is unable to use the handset and it has manufacturing defect. Feeling aggrieved by the above, the Complainant issued a legal notice dated 29.07.2010 calling upon the Opposite Parties to refund the cost of the mobile but the Opposite Parties not complied the demand made therein and hence the above complaint filed 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 pay a sum of Rs.3,200/- towards the cost of the defective mobile handset along with interest at the rate of 12% p.a. from 22.01.2010 till the date of filing of the complaint and also claimed Rs.55,000/- as compensation and cost of the proceedings.
2. Version notice issued to the Opposite Party No.1 and 3 by RPAD. Opposite Party No.3 despite of serving notice neither appeared nor contested the case till this date. Hence, we have proceeded exparte as against the Opposite Party No.3. The acknowledgement placed before the FORA marked as court document No.1.
Version notice issued to the Opposite Party No.1 returned unserved with the postal endorsement “left”. Thereafter the Complainant taken substituted service by way of paper publication in Kannada Daily Newspaper “Hosa Digantha” against the Opposite Party No.1. Even after the above paper publication the Opposite Party No.1 not appeared nor contested the case till this date. Hence we have proceeded exparte. The unserved postal cover and the acknowledgement and the paper publication dated 24.12.2010 placed before the FORA marked as court document No.2, 3 and 4.
Opposite Party No.2 appeared through their counsel filed version stated that the Complainant came to his shop and purchased the above handset manufactured by Karbbon Company. It is stated that, in front of the Complainant they have opened the box and delivered the handset to the Complainant. It is further stated that, this Opposite Party is a dealer of mobile accessories and handset. He is not the manufacturer, he is acting just like an agent and he is not liable for the defaults of the principal. It is stated that, after verifying the function and performance the Complainant purchased the above handset, if there is any defect found in the handset within seven days of purchase, if it is brought to the knowledge of this Opposite Party, they have an opportunity to replace the same with a new handset but there was no defect found as alleged in the complaint in the said period and if any defect found he has to approach the authorized service centre or the manufacturer to get it repaired and stated that there is no deficiency and prayed for dismissal of the complaint.
3. In support of the complaint, Mr.Chandrashekar K (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex C1 to C5 were marked for the Complainant as listed in the annexure in detail. One Mr.Elias Monis (RW1), Proprietor of the Opposite Party No.2 filed counter affidavit but not answered the interrogatories served on him.
4. 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 mobile handset purchased by him on 22.01.2010 from the Opposite Party No.2 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?
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):
In the instant case, the facts which are not in dispute is that, the Complainant admittedly purchased the handset Karbonn K 442 GSM Dual Set for Rs.3,200/- on 22.01.2010 from the Opposite Party No.2 as per Ex C1. It is also admitted that, the above handset has warranty for the period of …………. as per the warranty card issued by the manufacturer.
Now the point in dispute between the parties before this FORA is that, the above handset purchased by the Complainant developed certain problems at the beginning itself and he found very difficult to use for it for his personal use. It is stated that, the keys of the mobile were not working including the video recording options. Further it is stated that, he could not see the missed calls and list of callers. Inspite of full charge, the battery was becoming low and produced the alleged handset before this FORA and marked as MO-1 and seriously contended that the handset sold by the Opposite Party No.2 has manufacturing defect. The Opposite Party No.2 who is a dealer appeared before the FORA and contended that he is only an agent and he is not the manufacturer of the above product. In case of any defect, he must approach the service centre and stated that he is not liable for any manufacturing defect.
The Complainant filed oral evidence by way of affidavit and produced Ex C1 to C5. Opposite Party No.2 also filed oral evidence by way of affidavit.
We have perused the oral as well as documentary evidence available on record, we find from the warranty card it reveals that the above handset has got …………….. period of warranty from the date of purchase. Further the invoice produced by the Complainant also shows that the handset was admittedly purchased on 22.01.2010. The problems in the handset occurred during the warranty period in this case. We have perused the evidence of the Opposite Party No.2, who is a dealer appeared before this FORA not denied the manufacturing defect found in the handset. The dealer stated that in case of defect the Complainant must approach the manufacturer or the authorized service centre to get it repaired. The above statement of the dealer clearly shows that the handset purchased by the Complainant is admittedly defective but to get it repaired, he must approach the authorized service centre or the manufacturer. No doubt, in the instant case the service centre as well as the manufacturer both are placed exparte in other words inspite of receiving version notice, they remained exparte and not contested the case on hand. The entire evidence placed before the FORA is not controverted/contradicted by the manufacturer as well as the authorized service centre. The Opposite Party No.2 who is a dealer though appeared but not denied the defect found in the handset. The Complainant produced the handset before this Forum to show that the handset cannot be used and it is defective which has been marked as MO-1 in this case.
A person purchases electronic gadgets for his personal needy and not for running to the service centre for several times. ………
A customer purchases a handset only for his use and not to suffer the inconvenience of repeated visits to the workshop and frequent deprivation of the use of the handset due to such snags. The frequent visit and the frequent problems show the quality and standard of manufacturing of the product. The facts and the documents placed before this Forum proved that the handset supplied by the Opposite Party is not upto the standard and suffers from imperfection or shortcoming on quality or standard.
In the instant case, it is proved beyond doubt that in case of defect found in the handset not only the manufacturer but also the authorized service centre as well as the dealer has got responsibility towards the customer herein the Complainant. But in the instant case, the Opposite Party No.3 who is the authorized service centre not bothered to appear before the FORA nor denied the allegations alleged in the complaint. And further the manufacturer also not bothered to deny the manufacturing defect found in the handset manufactured by them.
Generally, if the handset has manufacturing defect is to be borne by the manufacturer. But, that would not mean that the dealer is absolved from joint and several liabilities. As we know, the manufacturer not deals with the customer directly. Dealer having received the amount, undertaken free service and rectify defects during warranty do not escape liability towards manufacturing defects found in the handset. As we know, the contract is through dealer, privity of contract is with him. To ensure execution expeditiously and immediately, if necessary, by making the payment 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 view of the above discussion, we are of the considered opinion that the handset sold by the Opposite Party No.2 proved to be sub-standard quality and some sorts of defects in the handset. Therefore, we hold that the Opposite Parties No.1 to 3 are jointly and severally liable to refund the amount of Rs.3,200/- to the Complainant. And also pay Rs.5,000/- as compensation for the harassment and the inconvenience caused to the Complainant and Rs.1,000/- as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
6. In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Parties No.1 to 3 are jointly and severally liable to refund the entire amount of Rs.3,200/- received from the Complainant. And also pay Rs.5,000/- as compensation and Rs.1,000/- as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
On failure to pay the aforementioned amount within the stipulated time as mentioned above the Opposite Parties are directed to pay interest at the rate of 10% p.a. on the total amount from the date of failure till the date of payment.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge or sent to the parties under postal certificate and thereafter the file shall be consigned to the record room.
(Page No.1 to ….. dictated to the Stenographer typed by her, revised and pronounced in the open court on this the 18th day of January 2012.)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mr.Chandrashekar.K – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 22.1.2010: Cash/Credit Memo.
Ex C2 – 29.7.2010: Office Copy of the legal notice.
Ex C3 – 31.7.2010: Postal Acknowledgement for having received the legal notice by Opposite Party No.3.
Ex C4 – 2.8.2010: Postal Acknowledgement for having received the legal notice by Opposite Party No.2.
Ex C5 – 4.8.2010: Postal Acknowledgement for having received the legal notice by Opposite Party No.1.
MO-1: Disputed Mobile handset produced by the Complainant.
Witnesses examined on behalf of the Opposite Parties:
RW-1: Mr. Elias Monis, Business for Opposite Party No.2.
Documents produced on behalf of the Opposite Parties:
- Nil -
Dated: 24.01.2012 PRESIDENT
