BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE
Dated this the 30th June 2010
COMPLAINT NO.29/2010
(Admitted on 23.1.2010)
PRESENT: 1. Smt. Asha Shetty, President
2. Smt. Lavanya M. Rai, Member
BETWEEN:
Sandeep Babu Bangera,
So Babu Bangera,
Aged about 28 years,
Rat Shubhadeep Goliady, Ullal,
Mangalore,
Represented by his mother
Mrs.Shashikanthi Bangera,
Wo Babu bangera,
Aged about 60 years,
R/at “Shubhadeep”, Goliady, Ullal,
Mangalore.
As per G.P.A. Dated 17.7.2009. …….. COMPLAINANT
(Advocate for the Complainant: Sri.Suraj Lal Shetty.)
VERSUS
1. The Authorized Signatory,
SAMSUNG TELECOMMUNICATIONS INDIA
PVT LTD., Plot No.26, Sector 5,
IMT Manesar, Gurgoan,
Haryana State.
[[[[
2. The Authorised Signatory,
A.V. Services Samsung Authorised
Service Centre, No.16/9-536,
Platinum Point, Opposite
Platinum Theatre, Falnir,
Mangalore-2.
3. The Manager, HARSHA,
K.S. Rao Road,
Mangalore-1. ……. OPPOSITE PARTIES
(Opposite Party No.1 : Exparte)
(Opposite Party No.2: Appeared in person)
(Advocate for Opposite Party No.3: Sri M.S.Krishnaprasad.)
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 purchased a mobile handset i.e. Digital Cellular-Phone G800 bearing Serial No.3579068013943243 from the 3rd Opposite Party by paying a sum of Rs.19,990/- on 13.3.2008. The 1st Opposite Party is a manufacturer and 2nd Opposite Party is the authorized service provider.
It is stated that, within the warranty period the hand set purchased by the Complainant developed certain problem which was reported to 2nd and 3rd Opposite Party. On receiving the said handset got it repaired assuring that, everything is rectified but within a short period of such assurance, the mobile phone began to display blank on the same was reported to the authorized seller as well as the repairer. The 2nd Opposite Party received the hand set for many times but within a short period the Complainant’s hand set problem persisted. Thereafter, the Complainant issued a letter dated 13.7.2009 to the Opposite Parties to call upon the rectify defects but the same was failed. It is stated that the hand set sold by the Opposite Party is a defective. Hence, 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 to refund a sum of Rs.19,990/- which is the cost of the handset along with interest at 18% per annum and also pay compensation and cost of the proceedings.
2. Version notice served to the Opposite Parties by RPAD. Opposite Party No.1 despite of receiving version notice not appeared nor contested the case till this date. Opposite Party No.2 appeared in person inspite of taking sufficient opportunity not filed any version and Opposite Party No.3 filed vakalath but not filed any version.
In this case, we have proceeded exparte as against the Opposite Party No.1, the acknowledgement placed before the FORA marked as court document No.1.
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 mobile handset purchased from the Opposite Parties suffers from manufacturing defect?
- 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, Mrs.Shashikanthi Bangera G.P.A. holder of the Complainant-Mr.Sandeep Babu Bangera (CW1) filed affidavit reiterating what has been stated in the complaint and produced Ex C1 to C10 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 affidavit and produced Ex.C1 to C10. We have perused the material evidence placed by the Complainant on record, we find that, the Ex.C1 is the Bill dated 13.3.2008 proved beyond doubt that the Complainant purchased a Samsung Cellular phone G800 one unit from the Opposite Party No.3 on 13.3.2008. Ex C2 is the warranty card issued by the manufacturer through Opposite Party No.3. Ex.C3 is the letter dated 13.7.2009 written by the Complainant to the manufacturer as well as repairer and the dealer along with postal receipt. The Complainant specifically alleged that, the hand set purchased by him started giving various problems and the same has been rectified by the 2nd Opposite Party many times, after each service the different problem used to arise and stated that he had given handset for service more than 5 times, but they have not taken any steps. Hence, he came up with this complaint.
However, it is significant to note that the Complainant produced the defective hand set before this Forum as M.O.1 stating that the hand set is not working and the same is defective. The Opposite Parties No.2 and 3 though appeared before this Forum and but not filed any version in spite of taking sufficient time nor contested the case. The entire evidence of the Complainant filed by way of affidavit is not controverted/contradicted by the Opposite Parties. The unrebutted evidence requires no further proof. Apart from the above the defect found in the mobile hand set is within the warranty period and the defective hand set produced before this Forum itself shows that the hand set is not working and the Opposite Parties should have taken steps to rectify the same.
However, the legal notice as well as oral evidence filed by the Complainant and also the handset produced before this Forum reveals that the handset has certain problems and cannot be used. Under that circumstances, the Opposite Parties should have taken possession of the handset and necessary steps should have been taken atleast after marking the handset as M.O.No.1 before this Forum. We further observe that, the Opposite Parties should have proved that the handset is usable even with defects. Infact it is Opposite Parties who prove that there is no defect by leading expert evidence because they are the manufacturer of the handset and the Complainant is only uses and do not know how about it.
In view of the above discussions, we are of the considered opinion that, the hand set sold by the Opposite Parties suffers manufacturing defect. 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 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. Therefore, we hold that, the Opposite Party No.1 and 3 are jointly and severally hereby directed to refund the entire amount of Rs.19,990/- (Rupees Nineteen thousand Nine ninety only) to the Complainant with interest at 10% per annum from the date of filing this Complaint till the date of payment by taking back defective handset.
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.
Since there is no privity of contract between Complainant and Opposite Party No.2, the complaint against Opposite Party No.2 is hereby dismissed.
6. In the result, we pass the following:
ORDER
The complaint is allowed. The Opposite Party No.1 and 3 are jointly and severally hereby directed to refund the entire amount of Rs.19,990/- (Rupees Nineteen thousand Nine ninety only) to the Complainant with interest at 10% per annum from the date of filing this Complaint till the date of payment by taking back defective handset and Rs.1,000/- as cost of the litigation expenses.
On failure to pay the aforementioned amount within the stipulated period as mentioned above the Opposite Parties are liable to pay interest at 12% per annum on the entire amount from the date of failure till the date of payment.
The complaint against Opposite Party No.2 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 9 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 30th day of June 2010.)
PRESIDENT MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Mrs.Shashikanthi Bangera G.P.A. holder
of the Complainant-Mr.Sandeep Babu Bangera.
Documents produced on behalf of the Complainant:
Ex C1 – 13.3.2008: Original Bill for purchase of Mobile phone.
Ex C2 – 13.3.2008: Original Warranty Card.
Ex C3 – 13.7.2009: Letter by the Complainant to Opposite Party No.1.
Ex C4 – Postal Receipt (Original)
Ex C5 – 13.7.2009: Letter by the Complainant to Opposite Party No.2.
Ex C6 – Postal Receipt (Original)
Ex C7 – 13.7.2009: Letter by the Complainant to Opposite Party No.3.
Ex C8 – Postal Receipt in respect of above (original)
Ex C9 – 17.7.2009: G.P.A. executed by Sandeep Babu Bangera in favour of his mother Shashikanthi Bangera (Original).
Ex C10– 9.3.2009: Copy of the Customer Complaint acknowledgement form issued by the Opposite Party No.3.
COURT DOCUMENT:
Doc No.1: Postal Acknowledgement.
M.O.No.1: Mobile Set- Samsung Digital Cellular – PhoneG800.
Witnesses examined on behalf of the Opposite Parties:
- Nil -
Documents produced on behalf of the Opposite Parties:
- Nil -
Dated:30.6.2010 PRESIDENT
