Karnataka

Belgaum

CC/33/2014

Ramesh G Morab. - Complainant(s)

Versus

The Managing Director, Redington Reverse Logistics Cemtre - Opp.Party(s)

S.R.Sakri.

16 Mar 2015

ORDER

(Order dictated by Smt. S.S. Kadrollimath, Member)

ORDER

          U/s. 12 of the C.P. Act, the complainant has filed the complaint against the O.Ps. alleging sale of defective mobile hand set.

          2) The O.P.1 appeared through advocate and contended that the complainant has not impleaded the manufacture of the handset. Hence it deserved to be dismissed for non joinder of necessary party. O.P.2 has contended that he is a seller hence he shall not be responsible to pay compensation or damage for any manufacturing defect found in handset supplied by O.P.1. Hence this O.P. is not liable to pay replace the handset etc.,

          3) In support of the claim of the complaint, the complainant has filed affidavit and both O.Ps. have filed their affidavit and produced some documents.

4) We have heard the arguments of the complainant and O.Ps. and have perused the records.

          5) Now the point for our consideration is that whether the complainant has proved sale of defective mobile handset by the O.Ps. as well as deficiency in service and that he is entitled to the reliefs sought?

          6) Our finding on the point is partly in affirmative, for the following reasons.

:: R E A S O N S ::

            7) The complainant has claimed that he purchased 9320 Black Berry with IMVI 353834057558277 mobile from the O.P. No.2 dealer for a sum of Rs.14,600/- on 25/10/2012 bearing invoice No.16614 in the month of October. The said hand set has started giving problems regarding non functioning of all features. The complainant brought the said problem to the notice of O.P.2. as regards to display and requested for replacement of the handset. The complainant further contended that the O.P.2 looking to the position and phones operations confirmed immediately issued replacement of phone under BEM/BBB/13/00047/9320 on 12/09/2013. The complainant further submits that the said replaced handset unfortunately persisted blanking out and created serious problems. The complainant submits that again he approached the O.p.2 and O.P.2 instructed the complainant to approach Wintech services for necessary repairs on 11/11/2013. Complainant further contended that he had saved number of contacts in the cell phone and it caused loss of mental piece due to erase of those contacts. The complainant further contended that the O.P.2 refused to return the handset by using foul words and have done unfair practices against which the complainant demanded refund of the price of handset. On 28/11/2013 the complainant got issued legal notice and same is served to both the parties and they have admitted but have not replaced the same. The complainant prays to refund the cost Rs.14,600/- with interest and compensation.

          8) On the other hand O.P.1 contended that the complaint is deserved to be dismissed on the ground of non joinder of necessary parties and also contended that the complainant ought to have impleaded the manufacture as a party to the complaint. The O.P. further contended that as the Wintech services and 1^st O.P. herein are two different legal entities and they are not aware of purchase transactions between the complainant and O.P.2.,  O.P.1 further contended that the complainant has not approached the Wintech service but have approached the O.P.2 party Mr. Sachin Communication for service and it is clear from para No.9 of the complaint and there is no specific allegation against this O.P.1 and also contended that this O.P. having no role in manufacturing quality or functionality of the handset. This O.P. further contended that there is no cause of action to file this complaint as per the contention taken in the version at para No.10 and on other different points and prayed to dismiss the complaint with cost.

          9) While O.P.2 contend that the complaint is false and frivolous and vexatious and concocted and deserved to be dismissed. This O.P. also denied that the complainant is in practicing Advocate at Belgaum and he is ardent fan of the Black berry. This O.P. admits that he imports the cell phone and markets the same in India. This O.P. also contend that he is not aware of the handset working irregularity and software are updated and it never functioned as promised and also submits that it is not within the knowledge that complainant was shocked to notice that the display of the said handset already vanished and contends that it is true the complainant has approached the O.P. for necessary replacement and also admit that on 12/9/2013 this O.P. replaced the said handset and also states that even though this O.P. not liable for any defect found in the handset replaced. This O.P. further contended that at para No.6 of the version that the allegation made by the complainant at para No.8 of the complaint are false and denied by the this O.P. and also this O.P. denies that the complainant has using the cell phone “New one” but unfortunately the problem persist. O.P. further contended that the complainant instead of approaching the Wintech Service has made this O.P.1 a target. This O.P. further contended that the complaint is not maintainable as non joinder of necessary party and also that the Wintech service is necessary party to the complaint to decide the case on merit. This O.P. further contended that there is no cause of action to file this complaint and also contended that the complainant has suffered a loss of mental piece and agony etc.,

          10) We have heard the argument of both the counsels and documents are perused. First of all to consider that whether the handset purchased by the complainant was not functioning properly since from the date of purchase. To show that the complainant has not produced any document that he has immediately approached the O.Ps. but looking to the contents of the complaint the complainant has used the handset till 12/9/2013 on which day the O.p.2 replaced the handset and also it is admitted by the O.P.2 that the complainant has approached and there was replacement of handset. The important point to be noted that the O.P.1 denies that he is not the manufacture of the handset and party one made in the complaint is a service provider of the company. No doubt it is true that the O.P.1 is the service provider to the manufacturer i.e., to Redington (India) Limited, which is having its registered office at Chennai. It is also pertinent to note that prior to filing of this complaint the complainant has issued the notice to O.Ps. 1&2 who are the parties to the proceedings but it is also important to note the notice issued to O.P.1 has been received by “Redington (India) Limited,” and also that we gone through the document produced by the complainant on perusal of which we see that it is a black sticker on which the words are printed with a white ink wherein it is clear that under the name of manufacture and name of importer and the address is shown of Redington (India) Limited, and below the said address under the heading for any complaints Pl contact, and the contact  address is of the O.P.1 shown in the cause title hence the contention taken by the O.P.1 that he is not responsible and liable to the claim of the complainant and the complaint is to be dismissed for non joinder of necessary party i.e., the manufacturer cannot be accepted and believed. Coming to the contention of O.P.2 and admission given and memo filed and submitted that they are ready to replace the hand which was brought before the forum but as per the memo filed by the O.P2. the cost shown is Rs.9,990/- to which the complainant argued that as he has paid Rs.14,600/- and the same is not of high version, the complainant at this stage did not accept the said handset and prayed to refund the amount of the handset. Considering the argument placed before the forum by both complainant and the O.Ps. and on the complainant relied on citations of Hon’ble Goa State Commission prayed to replace the handset or refund the price. The citation relied by the complainant is  I (2014) CPJ 51 (Goa) wherein it has been held that

“.... Complainant failed to produce any cogent evident to probe any inherent defect or manufacturing defects-If mobile had any defect it would not have worked well for more than seven months-Board which is required to be replaced is not known to be available as mobile is outdated—complainant used mobile for seven months so he is entitled to get refund of 2/3^rd of price of mobile-Impugned order modified.”

          The above judgement relied by the complainant wherein the Hon’ble State Commission has allowed the complaint and held that the mobile used for seven months is entitled for refund of 2/3^rd of price of the mobile. In the instant case after going through the pleadings of the both the parties we found that the complainant has purchased the handset in the month of October 2012 and approached the O.P.2 for the replacement in the month of September 2013. It goes to show that the complainant has used the handset in dispute for at least 9 months from the date of purchase, and that apart the O.P.2 had also replaced the handset and accordingly and as per the memo the O.P.2 was ready to replace the new mobile which cost Rs.9,990/- but the complainant reluctant to receive the same and prayed to refund full amount of the said handset. Considering the arguments submitted by both the parties the complainant has proved deficiency in service on the part of the O.Ps. and is entitled for the claim as order;

11) Accordingly, following order.

ORDER

          Complaint is partly allowed.

          The O.Ps. are hereby directed to refund 2/3^rd of the price of the mobile handset in dispute within one month from the date of the order, failing which amount will carry interest at the rate of 9% P.A. after completion of stipulated period of one month.

          The complainant is hereby directed to hand over the replaced mobile handset to the concerned O.P. immediately after compliance of the order.

So also, The O.Ps. are hereby directed to pay a sum of Rs.2,000/- to the complainant towards costs of the proceedings.

          (Order dictated, corrected and then pronounced in the open Forum on: 16^th March 2015)

 

 

            Member                   Member                    President.

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