Andhra Pradesh

Visakhapatnam-II

CC/486/2011

Boyapati Venkata Ramani - Complainant(s)

Versus

The Manager - Opp.Party(s)

Ch. Ravi Kumar

22 Jan 2015

ORDER

                                              Date of Registration of the Complaint:19-12-2011

                                                                                                Date of Order:22-01-2015

BEFORE THE DISTRICT CONSUMERS FORUM-II AT

                             VISAKHAPATNAM

 

P  r  e  s  e  n  t:

1.  Sri H. Ananda Rao, M.A., L.L.B.,

     President   

2. Smt K. Saroja, M.A. B.L.,

     Lady Member 

3. Sri C.V. Rao,  M.A., B.L.,

                                     Male Member

 

                          Thursday, the 22^nd day of January, 2015.

                                 CONSUMER CASE No.486/2011

Between:-

Boyapati Venkata Ramana, D/o Ramulu,

aged 40 years, Hindu, R/at D.No. 45-7-27/1,

Thatichetlapalem, Visakhapatnam-16.

….. Complainant

And:-

The Manager, M/s. Memmo Global

Telecommunications Private Limited,

Cell Shoppey, D.No.47-39-10/2, Dwarakanagar,

Visakhapatnam-530 016.

                                                                                       …  Opposite Party       

                     

          This case coming on 03.01.2015 for final hearing before us in the presence of Sri Ch. Ravi Kumar, Advocate for the Complainant and Sri N. Shiva Raja Kumar, Advocate for the Opposite Party and having stood over till this date for consideration, this Forum made the following:

 

                                                ORDER

          (As per Sri C. V. Rao, Honourable Male Member, on behalf of the Bench)

 

1.       The Complainant asked the Forum to pass an order in his favour and against the Opposite Party: a) for complaint amount of Rs.2,475/- (Rupees Two thousand, four hundred and Seventy five only), b) Subsequent interest @ 24% per annum from the date of filing of the complaint till the date of realization of the principal amount; c) for damages for the negligence of the Opposite Party the compensation claimed by the Complainant of Rs.20,000/- d) for the costs of the complaint; and e) for such other relief or reliefs as the Forum deems fit and proper in the circumstances of the case.

 

2.       The Opposite Party strongly resisted the claim of the Complainant and asked the Forum to dismiss the Complaint with costs.

 

 3.      The case of the Complainant, as can be seen from the Complaint, is that the Opposite Party is a Manager for the above Cell Shoppe and is carrying business of selling all types of Cell Phones of different models and his shop is situated at the above mentioned address.   The Complainant  purchased a MICRO MAX Cell Phone bearing the Micro Max No.X226 + MICROMAX Mobile Phone 910604201976394, RINO SCREEN GUARDS: ORPAT: SCREEN GUARDS, SERVICE:SERVIVE: SERVICVE: Invoice No. MSIDP/3818, Invoice dated 13.07.2011 for Rs.2,250/- (Rupees two thousand, two hundred and fifty).   The Opposite Party issued a Cash Receipt for the above amount with warranty stamp on the above receipt.   The warrant period is one year from the date of purchase.   The Complainant stated that at the time of purchase of the above cell phone, it was not working properly, sometimes the cell phone is dead condition, frequently the phone is giving the same complaint to the Complainant.   Hence, the Complainant approached the seller’s shop and made complaint about the cell phone.   The Opposite Party never heard her complaint and  said that he was not responsible for the complaint of the cell phone.    The Complainant stated that several times she approached the seller to issue a new cell phone or refund the above amount i.e., Rs.2,250/-.   But the Opposite Party neither issued a new cell phone nor refunded the above said cell phone bill amount.   So, the Complainant became vexed and finally issued a legal notice dated 21^st September, 2011 to the Opposite Party  demanding to repay the amount with @ 24% per annum interest.   The Opposite Party took the Registered Lawyer’s Notice but there was no reply to the Registered Lawyer’s Notice.   The Complainant further stated that here is a purchaser and seller transaction.   There is a clear negligence of the Opposite Party towards the Complainant.   There is a deficiency of service and negligence of the Opposite Party towards the Complainant.   Hence, this Complaint.

 

4.       The Complainant filed an affidavit besides written arguments to support her claim.      Exs.A1 to A4 are marked for the Complainant.

 

5.       On the other hand, the Opposite Party resisted the claim of the Complainant by contending, as can be seen from its counter, that if there is any problem in the mobile phone the problem will arise immediately after purchase of the same.  After using the said phone for two months the problem arising is not true and correct and the Complainant with a view to get wrongful gain to her and to cause wrongful loss to the Opposite Party has filed the present complaint.   The Opposite Party stated that the contention of the Complainant is vague and imaginary and not supported by the real facts, only to extract money from the Opposite Party, the Complainant got issued a legal notice dated 21.09.2011 with an ulterior motive to deceive the Opposite Party.   Further the Opposite Party has nothing to do with the repairs of the mobile phone the Opposite Party is only a mere dealer.    The Company i.e., MICROMAX Company and its Authorized Service Centers situated in and around Visakhapatnam for the mobile phone in question and they are the necessary and competent parties to conduct relevant repairs; as such the Complaint is bad for non-joinder of necessary parties.    So, the dealer i.e., the Opposite Party cannot be mulcted with the duty of rectifying the defects, if any, in the mobile phone in question in as much as it is the duty of the company and its authorized service centers to rectify the defects, if any, in the mobile in question subject to the conditions of the warranty.   The  Opposite Party further stated that the averments mentioned by the Complainant are all not true and correct, the Complainant with a view to have wrongful gain to herself and to cause wrongful loss to the Opposite Party has filed the present complaint with all false and frivolous averments.   There is no truth in the contents of the Complaint.

 

6.       The Opposite Party filed an evidence affidavit and also written arguments to buttress its contention.    However, no documents are marked for the Opposite Party.

 

7.       The matter has been heard on behalf of the Complainant as well as the Opposite Party.

 

8.       After careful perusal of the case record, this Forum finds that as per Ex.A1 Invoice, the Complainant purchased a Mobile Phone in question on 13.07.2011 by paying Rs.2,250/- to the Opposite Party.    Afterwards, on 21.09.2011, the Complainant got issued the Ex.A2 Lawyer’s Notice which was received by the Opposite Party as per Ex.A4 Acknowledgement.   In this notice, it was clearly mentioned.    “After one month the Cell Phone became dead and not functioning properly.   In the said notice, it is also clearly mentioned.  “Hence this notice, please take this notice, and either replace a new cell phone or refund the amount to my client within SEVEN days on this receipt of this notice, failing which a suitable legal action may be initiated against you by my client in the Hon’ble District Consumer Forum”.   But there was no response from the Opposite Party until 17^th January, 2012 on which date, after receiving a notice from this Forum, the Opposite Party got a Vakalat filed on its behalf.   All this makes amply clear that the Opposite Party forced the Complainant to file this complaint by failing to promptly respond to the complaint of the Complainant regarding the cell phone which was not working properly within days of purchase from the Opposite Party.    As such, there is a deliberate deficiency of service -cum-unfair trade practice on the part of the Opposite Party.   The conduct of the Opposite Party shows that the Opposite Party did not care to attend to the defective cell phone as they should have knowingly sold a defective phone to the Complainant and so knew that it cannot be rectified.   That should have been the only reason for the Opposite Party to resort to indifferent attitude.    The Opposite Party was sincere, it should have replied properly to the lawyer’s notice issued by the Complainant.   The contention of the Opposite Party, that the Complainant never approached it, sounds hollow as it has received a full pledged lawyer’s notice with a definite demand and corollary legal action in case of non-compliance.   This establishes the fact that the matter was authoritatively brought to the notice of the Opposite Party and it failed to respond in any way.   In the circumstances, the Complainant is definitely entitled to get back the money paid by her to the Opposite Party on 13.07.2011 with interest.   As the Complainant is put to physical hardship, financial loss and mental agony because of the deficiency of service on the part of the Opposite Party, she is entitled to suitable compensation too.   The Complainant is also entitled to costs of this Complaint also as she was forced to file this complaint also solely because of the deficiency of service-cum-unfair trade practice on the part of the Opposite Party.

 

9.       In the result, this Forum directs the Opposite Party to pay a) Rs.2,250/- (Rupees two thousand, two hundred and fifty only) with interest @ 9% p.a. from 13.07.2011 to till the date of actual realization, b) a compensation of Rs.1,500/- (Rupees One thousand and five hundred only) and c) Costs of Rs.1,000/- (Rupees One thousand only) to the Complainant.    Time for compliance, one month.

 

     Dictated to the Steno, transcribed by him, corrected and pronounced by us in the Open Forum, this the 22^nd day of January, 2014.

Sd/-                                     Sd/-                                          Sd/-

President                          Lady Member                           Male Member

 

                             APPENDIX OF EVIDENCE

For the Complainant:-

NO.	DATE	DESCRIPTIONOFTHEDOCUMENTS	REMARKS
Ex.A01	13.07.2011	Invoice issued by OP	Original
Ex.A02	21.09.2011	Registered Lawyer’s Notice issued by the Complainant’s counsel to OP	Office copy
EX.A03	22.09.2011	Postal Receipt	Original
Ex.A04		Acknowledgement	Original

For the Opposite Party:-                                    

                                      -Nil-           

Sd/-                                     Sd/-                                          Sd/-

President                            Lady Member                             Male Member