BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE

Dated this the 30^th June 2010

COMPLAINT NO.100/2010

(Admitted on 20.3.2010)

PRESENT:    1. Smt. Asha Shetty, President.                                                                                                                                                                                                                                                                                                           

                            2. Smt. Lavanya M. Rai, Member.

BETWEEN:

Mr.Sudheendara Prasad,

So Ishwar U.,

Aged about 33 years,

Rat Mukkar Nivas,

Attavara Babugudda,

Mangalore.                                       …….. COMPLAINANT

(Advocate for the Complainant: Sri. Raju Devadiga)      

          VERSUS

1. The Authorized Officer of

    TRUE VALUE HUB,

     Door No.10, Ground Floor,

     Manasa Towers, M.G. Road,

     Mangalore.

2. The Proprietor,

    PRANAV INFOCOM,

    (Samsung Mobile),

    Shop No.B-2 and B-3,

    Divya Enclave, Jail Road,

    Opposite Canara College,

    Mangalore.                                   ……. OPPOSITE PARTIES

(Opposite Party No.1 and 2: Exparte)

          ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1.       The facts of the complaint in brief are as follows:

This complaint is filed under Section 12 of the Consumer Protection Act alleging defect in mobile handset against the Opposite Parties claiming certain reliefs. 

The Complainant submits that, he had purchased a mobile hand set of C.D.M. of TATA INDICOM from the Opposite Party No.1 bearing mobile No.9242151054, model No.S.C.H.S259 for amount of Rs.4,499/- on 29.7.2008.  The said hand set provided one year warranty from the date of purchase.

It is stated that, the above hand set purchased by the Complainant is not in working condition due to manufacturing defect, the said defect was occurred within one year of warranty.  The Complainant approached the Opposite Party No.1 for repair of the same and Opposite Party No.1 directed the Complainant to approach Opposite Party No.2, who is the authorized dealer for repairing the hand set.  The Complainant approached the Opposite Party No.2 and the hand set was handed over for repair on 29.7.2009 and issued a service center copy by the Opposite Party No.2.  The Complainant further submits that, he approached the Opposite Party No.2 and demand the return of the mobile hand set but the Opposite Parties stated that they have sent to hand set to the Opposite Party Company for repairing.  The Complainant waited for reasonable time but the Opposite Parties not returned the mobile hand set till this date.  Hence, it is contended that the Opposite Party committed deficiency in service and the hand set is defective.  Therefore, the Complainant filed above Complaint before this Forum 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  provide, return back the above said mobile hand set or Opposite Parties are jointly and severally to pay the cost of the above hand set a sum of Rs.4,499/-at the rate of 18% per annum from the date of the purchase of the mobile till the date of payment and also pay compensation and cost of the proceedings.

2.       Version notice served to the Opposite Parties by RPAD, Opposite Party No.1 and 2 despite of receiving version notice not appeared nor contested the case till this date.  Hence we have proceeded exparte as against the Opposite Party No.1 and 2.  The acknowledgement placed before the FORA marked as court document No.1 and 2.

3.       In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainant proves that the mobile handset purchased from the Opposite Parties suffers from manufacturing defect?

2. Whether the Complainant proves that the Opposite Parties committed deficiency in service?
3. If so, whether the Complainant is entitled for the reliefs claimed?
4. What order?

4.         In support of the complaint, Mr.Sudheendra Prasad (CW1) filed affidavit reiterating what has been stated in the complaint and produced Ex C1 & C2 as listed in the annexure.  Opposite Parties not filed counter affidavit nor led any evidence.

          We have heard and perused the pleadings, documents and evidence placed on record by the Complainant and answer the points are as follows:

                             Point No.(i): Affirmative.

          Point No.(ii): Affirmative.

          Point No.(iii) & (iv): As per the final order.

REASONS

5.  POINTS NO. (i) to (iv):

The Complainant filed evidence by way of affidavit and produced Ex.C1 and C2 in order to substantiate their case.  The Opposite Parties inspite of receiving version notice not appeared nor contested the case till this date.

We have considered oral as well as documentary evidence on record, wherein, we find that, the Ex.C1 is the Invoice dated 29.7.2008 issued by the Opposite Party No.1 reveals that, the Complainant purchased a hand set bearing No.100001460 Samsung Bliss for a sum of Rs.4,499/-.  Ex C2 is the service center copy reveals that on 29.7.2009 the Complainant handed over the hand set to the Opposite Party No.2 who is the authorized repairer with the complaint of no incoming, out going, no battery backup and call rejected.  The above service center copy reveals that, the Opposite Party No.2 received the hand set from the Opposite Party for repair on 29.7.2009.  It is a definite case of the Complainant that, after purchase of the above hand set the hand set had a problem and thereafter the Complainant approached the Opposite Party No.2 who is a authorized service center of the above hand set and delivered the hand set for repair.  But the Opposite Parties not returned the hand set given for repair till this date is proved.

However, it could be seen that, the version notice served to the Opposite Party despite of receiving version notice not appeared nor contested the case till this date it shows the attitude of the Opposite Parties.    

It is significant to note that, the entire documentary as well as affidavit of evidence filed by the Complainant is not rebutted by the Opposite Party.  The unrebutted evidence requires no further proof.

The documents as well as the affidavit by way of evidence filed by the Complainant proved beyond doubt that, the Opposite Party No.2 being a authorized service center failed to return the hand set amounts to deficiency.  Under that circumstance, we hold that, the Opposite Party No.1 and 2 are hereby directed to return the hand set after repairing or on failure to return back handset the Opposite Parties directed to pay to the Complainant for a sum of Rs.4,499/- i.e. cost of the mobile hand set along with interest 12% per annum from the date of receipt of the mobile hand set on 29.7.2009 till the date of payment.

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 shall rectify defects during warranty do not escape liability.  In the given case, the Opposite Parties No.2 who is the authorized repairer of the manufacturer of this mobile hand set, received the handset directly from the customer and issued a receipt.  Under that circumstances, the dealer as well as authorized service center both are jointly and severally liable to the Complainant.   

In the present case, interest considered by this Forum itself is compensation and therefore, no separate amount for compensation is awarded. Rs.1,000/- awarded as cost of the litigation expenses.  Compliance/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.  The Opposite Parties are hereby directed to repair the mobile hand set CDM of TATA INDICOM model No.S.C.H.5259  and return with extended warranty of one year on or before 30 days.

On failure to return back the hand set within the stipulated time, the Opposite Parties are hereby directed to refund Rs.4,499/- (Rupees Four thousand four hundred ninety nine only) i.e. cost of the mobile hand set to the Complainant along with interest at 12% per annum from the date of receipt of the mobile hand set i.e. on 29.7.2009 till the date of payment. 

Further Rs.1,000/- awarded as cost of the litigation expenses.  Compliance/Payment shall be made within 30 days from the date of this order.

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 8 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 30^th day of June 2010.)

           PRESIDENT                                              MEMBER

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 – Mr.Sudheendara Prasad – Complainant.

Documents produced on behalf of the Complainant:

Ex C1 – 29.7.2008: The Original copy of the sale invoice cum receipt with containing the warranty issued by the Opposite Party No.1.

Ex C2 – 29.7.2009: The original copy of the receipt issued by the Opposite Party  No.2.

COURT DOCUMENTS:

Doc No.1: Postal Acknowledgement.

Doc No.2: Postal Acknowledgement.

Witnesses examined on behalf of the Opposite Parties:

- Nil -

Documents produced on behalf of the Opposite Parties: 

- Nil -

Dated:30.6.2010                                                 PRESIDENT