Karnataka

Tumkur

CC/141/2016

Madhu S/o Umesh - Complainant(s)

Versus

The Manager,Sangeetha Mobiles Sales and Service Center. - Opp.Party(s)

T.K.Uday kumar

28 Apr 2017

ORDER

Complaint filed on: 27-10-2016                                                      Disposed on: 28-04-2017

 

BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM

OLD DC OFFICE COMPOUND, TUMAKURU-572 101

 

CC.No.141/2016

DATED THIS THE 28^th DAY OF APRIL 2017

 

PRESENT

SMT.PRATHIBHA. R.K. BAL, LLM, PRESIDENT

SMT.GIRIJA, B.A., LADY MEMBER

 

Complainant: -           

Madhu S/o. Umesh,

Aged about 16 years, minor

Represented by his

Natural Guardian father Umesh

S/o. Hanumanthaiah,

Aged about 45 years,

R/o Baluvaneralu village,

Honnavalli hobli, Tiptur taluk

(By Advocate Sri.T.K.Uday Kumar)

 

 

V/s

 

Opposite party:-       

                                                The Manager,

                                                Sangeetha Mobile Sales and Service,

                                                Near by Pi-Hotel circle,

                                                B.H.Road, Tiptur town,

                                                Tiptur District-572202

                                                (Ex-parte)

 

                                               

ORDER

 

SMT.PRATHIBHA. R.K. PRESIDENT

This complaint is filed by the complainant against the OP, under Section 12 of the Consumer Protection Act. The complainant prays to direct the OP to pay an amount of Rs.4,00,000=00 with interest @ 18% p.a. from the date of petition till payment of entire amount and grant such other relief as prayed in the complaint, in the interest of justice and equity.

 

2. The brief facts of the complaint is as under.

          The OP is carrying his mobile sales and service unit at Tiptur and the entrance to the shop is having a big glass door.

          The complainant submitted that, the complainant son Madhu with an inclination to purchase the mobile phone along with his friend has entered the OP shop on 7-8-2015 at 3.00 p.m.  When the complainant son Madhu opened the Glass door to enter the OP shop, glass panel door fell down on the right leg of the complainant son Madhu. In the meanwhile, the complainant son fell down the leg was broken and had great bleeding and entire right leg was incapable to move. Thereafter, he has taken to Tiptur General Hospital by his friends and intimation was also given to the complainant.

          The complainant further submitted that, the complainant son was admitted in Tiptur hospital. Thereafter, for further treatment, he was hospitalized at Bengaluru Medical hospital, Tiptur for two months. The complainant son was studying in 9^th Std. at that time and he is only son to the complainant.

          The complainant further submitted that, the complainant is doing odd jobs for his livelihood and he was forced to be in the hospital and lost his income of three months due to said incident.

          The complainant further submitted that, the complainant son has sustained injuries due to deficiency on the part of the OP. The complainant son has undergone surgery below right knee and rod has fixed, after few months again undergone operation.

          The complainant further submitted that, due to latches on the part of the OP and not maintained the shop properly by the OP, the above said incident has occurred. Without any reason, the complainant son undergone pain and also made to go for operations in this early age. Even now he is having pain in his right leg and he is going for therapy regularly and his education came to stand still on those days.

          The complainant further submitted that, the petitioner lodged the complaint to the police authorities and FIR was lodged vide Cr.110/2015 and mahazor has also drawn. Statement of witness has taken and statement of OP also taken and charge sheet also filed in this case.      

          The complainant further submitted that, the OP is stated to be carrying his mobile business without any due license and permission from CMC authorities. The OP has no inclination to keep the shop intact. Due to later deficiency in service, the complainant has placed with following damages;

1. The expenses incurred                        -        Rs.1,25,000/-
2. Special damages sustained

Due to deficiency                                  -        Rs.2,00,000/-

3. Loss of income to the petitioner          -        Rs.  25,000/-
4. The pain, the agony sustained by

Petitioner without any reason             -        Rs.  25,000/-

5. To award cost of this petition

To an amount                                       -        Rs.   25,000/-

Total                                            -        Rs.4,00,000/-

Hence, the complainant has come up with the present complaint.

 

 

3. After service of notice, the OP did not appear before the forum and he was called out absent and he has been placed ex-parte.

 

4. In the course of enquiry into the complaint, the complainant has filed affidavit evidence to support his case and also produced some documents which were marked at Ex.P1 to P49. We have heard the arguments of complainant side and pursed the documents and then posted the case for orders.

 

 

5. Based on the above materials, the following points will arise for our consideration.

1.      Whether the complainant is a consumer within the purview of the CP Act.

2.      Whether there was deficiency in service on the part of the OP as alleged by the complainant?

3.      What Order?      

 

 

6. Our findings on the above points are;

                    Point no.1: In the negative

                   Point no.2: Does not arise for consideration

                    Point no.3: As per the final order below.

 

 

REASONS

 

          7. On perusal of the pleadings of the complaint, affidavit evidence of complainant, it is an admitted fact that, the complainant’s son was intended to purchase the mobile phone and he entered into the OP shop along with his friends on 7-8-2015 at 3.00 p.m.. At the time of entered into the OP shop, the main glass door fell down on the right leg of the complainant’s son. The complainant’s son right leg injured. Thereafter the complainant’s son has taken to Tiptur General Hospital by his friends. The complainant further contended that, the complainant’s son has undergone surgery below right knee and rod has fixed. Further, the complainant has lodged a complaint before the jurisdictional police and FIR was lodged vide Cr.110/2015. 

         

          8. The above said facts of the complaint and evidence of the complainant; it is very crystal clear that, the above said incident was accidental one. However, Section 2 (1) (d) (i) of the Consumer Protection Act.  It reads as under:

          “2 (1) (d) “Consumer” means any person who-

1. Buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the persons who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system or deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose”.       

 

9. In the instant case, the complainant neither produce any documents to show that, he is a consumer to OP nor in the affidavit evidence has stated that, the complainant is a consumer to the OP. The complainant’s son hired any service or availed any service from the OP. Hence, there is no contractual relationship or privity of contract between the complainant’s son and the OP. Hence, the complainant is not a consumer under the CP Act.

 

10. So, looking to the nature of the complaint and documents together with definition of consumer under section 2 (1) (d) (i) of the CP Act, we are of the opinion that, the present complaint is not maintainable as the complainant does not come under the definition of consumer. Hence, the complainant is at liberty to approach the appropriate court and accordingly we answered point No.1 in the negative. When point No.1 is negative, we hold that, point No.2 does not survive for our consideration. In the result, for the foregoing reasons, we proceed to pass the following order. 

     

ORDER

 

The complaint is dismissed as not maintainable.

 

The complainant is at liberty to approach the appropriate court.

 

          Supply free copy of this order to both parties. 

 

(Dictated to the Stenographer, transcribed and typed by him, corrected and then pronounced by us in the Open Forum on this, the 28^th day of April 2017)

                                                         

 

 

 

LADY MEMBER                                  PRESIDENT