Per:  Akatha. H.D.  

JUDGMENT

            The complainant has filed this complaint U/s 12 of the Consumer Protection Act – 1986 against the OP alleging deficiency of service and unfair trade of practice in selling defective hand set to the complainant. Hence prays for the worth of device of Rs. 10,558/- along with Rs. 50,000/- towards damages to mental agony, expenses and for earning in inconvenience to the complainant’s profession and along with Rs. 20,000/- towards compensation for deficiency of service and unfair trade practice and Rs. 5,000/- towards cost of issue notice and Rs. 10,000/-towards costs of this complaint.

Brief averments of the complaint are:-

2)         That the complainant has purchased E455 Canvas Nitro 4G Micromax from Respondent No.1 for Rs.10, 558/- vide invoice No.SI/KOP/1226 dated 03-01-2016 and IMEI number of the said device is 911438701350399. The Said product is belonging to Respondent No.2. At the time of purchase Respondent No.1 have assured that the said device will perform perfectly and Respondent guaranteed that in case if any problem arises Respondent will redress it immediately without any delay or charges.  

            That the complainant further alleged that the complainant after purchasing the above said device has inserted his sim cards in it for its use and started using it. At time of using the said device the complainant found the following problems.

• While using mobile its over heat
• Calls get cut abruptly
• While using mobile, pause button or mute button get on
• Screen get hangs often
• Volume buttons doesn’t respond some time
• Battery gets discharged very soon even after charged fully

            The complainant further alleged that in view of the above problems the complainant has personally visited Respondent No.1 and explained the problems and got repaired. But, problems didn’t end and same started recurring. Then the complainant so many a times called Respondent No.1 and complained. On 12^th February 2016 the complainant approached Respondent No.1. But, Respondent No.1 behaved rudely and scolded the complainant telling him that the hand set has manufacture defect and asked the complainant to go the manufacturer and get it repaired or replaced or throw it in the dustbin. Respondent No.1 also said to the complainant not to come again with these problems to him.

The complainant further alleged that the complainant was shocked to hear the words of Respondent No.1. Such kind of his attitude amounts to deficiency of service and unfair trade practice. In view of manufacturing defects in the said device the complainant requested Respondent No.1 to replace the said device with another brand or return the purchased amount. For which Respondent No.1 have flatly refused. In this regard the Complainant being a busy journalist, dependent on mobile for news, images and getting and sharing information. The complainant also gets internet connection through mobile. With above mentioned defects, the complainant was unable to perform his duties efficiently, which made him suffer mentally. By calling Respondent No.1 again and again and visiting Respondent No.1 shop has spent huge amount of money and valuable time.

The complainant further alleged that accordingly the complainant has waited for nearly two months and approached to the Respondent No.1 for the claim amount. But, the Respondent No.1 is postponing the period of claim on one pretext on another. Even till this day, none of the Respondents neither paid the claim amount nor provided with a new brand device to the complainant. Such act of the Respondents clearly amounts to the
 

deficiency of service and also amounts to unfair trade practice. By which, the complainant has sustained loss of Rs. 10,558/- (worth of device), damages of Rs. 50,000/- mental agony, expenses and for causing inconvenience to the complainant’s profession and of Rs. 20,000/- towards deficiency of service and un trade practice.

The complainant further alleged that after all these attempts and undergoing mental agony, the complainant has got issued legal notices to Respondents through his counsel on 17-02-2016 through RPAD, calling upon them to pay of Rs. 80,558/- to the complainant as compensation and cost of the device for the loss caused due to manufacture defect, their deficiency of service and unfair of trade practice. The said notices were served on 23-02-2016 to the respondents. But the Respondents even this day has neither given reply to the aid notice nor paid the claimed amount. Hence the complainant has no other way except to the file this complaint for the compensation for their deficiency of service and unfair trade of practice. Therefore, the Respondents are jointly and severally liable to pay the compensation to the complainant as detailed below:

            Hence, prays for Rs.10,558/- towards work of device and Rs.5,000/- towards damages to mental agony, expenses and for causing inconvenience to the complainant profession and Rs. 20,000/- towards compensation for deficiency of service and unfair
 

trade practice and Rs.5,000/- towards cost of issue notice and Rs.10,000/- towards cost of the complaint as prayed above.

3)         This forum after admitting the complaint a notice was issued to the OPs and the said notice is served on them. The OPs failed to appear before the forum on the date of appearance and hence was placed as ex-parte and the case was posted for the complainant evidence.

4)         On the basis of the above pleadings the following points that arise for our consideration are;

POINTS

1)         Whether the complainant proves that there is deficiency of service and unfair trade of practice in selling the defective hand set to the complainant?

2)         Whether the complainant is entitled for the relief sought for?

3)         What order?

5)         To prove the case of the complainant, the complainant himself examined as PW1 and he has got marked documents as per Ex. A 1 to Ex. A 5 and closed their side evidence. 

6)         Heard the arguments of counsel and perused the records.

7)         Our findings on the above points are as under;

Point No. 1:  In the Affirmative

Point No. 2:  In the Affirmative

Point No. 3:   As per final Order for the following

REASONS

8)         POINT No. 1 and 2:  As these issues are interconnected each other, hence they are taken together for common discussion to avoid repetition of facts, evidence documents and arguments.

9)  On perusal of the pleadings, evidence coupled with the documents of respective parties on record, there is no dispute that the hand set is purchased from OP 1. It is the case of the complainant against of alleging unfair trade practice and deficiency of service in selling a defective hand set. On going through the documents produced by the complainant i.e. the invoice bill which is marked as Ex. A 1. Ex. A 1 clearly reveals  that the complainant has purchased a mobile hand set of   E455 Canvas Nitro 4G Micromax 911438701350399 and the cost of the hand set is Rs. 10,454-26. It reveals that the name of the complainant has been duly entered in the invoice.

10)       On perusal of Ex. A 2 the legal notice issued by the advocate for the complainant it discloses that he had intimated the OP 1 regarding the defect of the mobile hand set and the said notice is also served on him. PW 1 has averred and deposed that he personally visited OP 1 and explained the problems and got it repair. But even that the problems did not end and again the same problem started recurring. The OP’s did not even reply to the notice sent by the complainant. The OP being the dealer has the responsibility to look into the matter as per the terms and condition and could have exchanged or repaid the money back. But the Op’s did not even act accordingly. This definitely shows an unfair trade practice on the part of OP’s.

11)       Generally in the mobile hand set if there is manufacturing defect it has to be borne by the manufacturer. This would not mean that the dealer is absolved from joint and severally liabilities. It is known that the manufacturer does not deal with
 

the consumers/customers directly. So here the dealers take active part in selling the mobile. So the dealer having received the amount of the mobile hand set he has to undertake free service and rectify the defect during the warranty period. The dealer cannot escape his liability towards the manufacturing defects found in the mobile hand set. As we know the contract with dealer/service provider privity of contract is within them. To ensure execution expediously 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 or both are jointly and severally liable for the defects of the mobile handset. Therefore, the complainant proves that the OPs have committed the deficiency of service and unfair trade of practice. On the contrary as per the oral evidence coupled with the documentary documents the complainant has proved the deficiency of the service and unfair trade of practice by the OPs and the said fact has been clearly discloses in Ex. A 1 to A 4 which are the invoice bill, legal notice etc. which have been already discussed supra. Hence in the light of above observations the complainant has proved deficiency of service and unfair trade of practice in selling the mobile hand set by the OPs. Hence, in the light of the above observation being constrained to hold point No. 1 and 2 in the affirmative.

12)       Point No: 3:- In view of the above discussion and findings, we proceed to pass the following;

ORDER

1. The complaint filed by the complainant is hereby partly allowed.

2. The OP 1 and 2 are hereby jointly and severally liable and are directed to pay the mobile hand set amount of Rs. 10,558/- (Rupees Ten thousand five hundred fifty eight only) along with compensation of Rs. 15,000/- (Rupees Fifteen thousand only) towards deficiency of service and unfair trade of practice and along with Rs. 3,000/- (Rupees Three thousand only) towards litigation expenses to the complainant within one
   month from the date of receipt of this order.  Failing which 12% p.a. interest will be charged from the date of filing of this complaint till realization.

3. Send the free copies of this order to both parties.

Dictated to the Stenographer, transcribed, typed by him, typescript, corrected by me and then pronounced in the Open Forum on 26^th day of July 2016.

// ANNEXURE //

List of Documents Exhibited for the Complainant.

Witnesses examined for the Complainant / Respondent.