BEFORE THE  DIST. CONSUMERS DISPUTES REDRESSAL FORUM;  DHARWAD.

DATE: 31^st March 2016         

PRESENT:

1) Shri B.H.Shreeharsha       : President

2) Smt.M.Vijayalaxmi             : Member 

Complaint No.: 306/2015    

Complainant/s:                       Chandrashekar B. Somaraddi, Age: 29 years, Occ: Pvt. Work, R/o.Chikkanarti Village, Tq. Kundgol, Dist.Dharwad.

(By Sri.V.K.Savadi, Adv.)

v/s

Respondent/s:         1)             The Managing Director, Apple India Pvt. Ltd., 19^th Floor, Concord Tower C, UB City, No.24, Vittal Mallya Road, Bangalore 560001.

(By Sri.N.C.Kolloori, Adv.)

2)             The Proprietor / Manager, Bhagavathi Electronics, Kairali Complex, K.C.Road, Junction, Talapady, Mangalore 575023.

(By Sri.G.I.Hegde, Adv.)

3)             The Proprietor / Manager, Shanbhag Services, Opp.Shivakrupa Building, Neelign Road, Hubballi 580029.

                                                (In Person)

4)             The Proprietor / Manager, Durgamba Motors, Laxmi Complex, Neeligin Road, Hubballi 580029.

                                                (Exparte)

O R D E R

By: Shri. B.H.Shreeharsha : President.

1.     The complainant has filed this complaint claiming for a direction to the respondents to replace mobile handset Nokia E71 E series & i phone 4S white 32 GB IMEI No.013068002785006 with a new handset i.e. of earlier type i phone 5 black 64 GB along with a fresh warranty, alternatively to refund Rs.25,500/- paid under invoice along with interest @24% P.A from the date of invoice till repayment, to pay Rs.50,000/- towards damages, to pay Rs.5,000/- towards cost of the proceedings and to grant such other reliefs.

Brief facts of the case are as under:

2.     The case of the complainant is that, respondent 1 is the manufacturer, respondent.2 is the seller, respondent.3 and 4 are carrying transport business. The complainant was in need of cell phone for his communication purpose & for his personal business and as such he was watching advertisement in OLX online website. Accordingly complainant impressed by the advertisement approached respondent.2 & placed order for mobile handset i phone 5 brand, black 64 GB IMEI No.013068002785006 as per tax invoice No.1047 dt.20.07.2015 & the same was sent through respondent.3 by respondent.2 & the complainant by paying Rs.25,500/- received the same through respondent.3. At the time of purchase respondent.1 had assured one year warranty from the date of purchase against all manufacture defects and if any defects have been traced during the warranty period the same will be replaced with new one or otherwise the amount will be refunded. Within one month of usage the mobile set starts troubleshooting and was not properly working as canvassed by the respondent.1 accordingly approached respondent.2 through mobile on several times in the month of august 2015. At that time respondent.2 assured to replace the handset and on 04.09.2015 complainant returned the  mobile handset to respondent.2 through respondent.4. After receiving the same respondent.2 instead of replacing i phone 5 or returning the cost has sent Nokia E 71 E series and i phone 4S white 32 GB IMEI No.013068002785006 as per tax invoice 0001073/2015 dt.14.09.2015 through respondent.4. Believing the respondent.2 had sent i phone 5 the complainant collected the mobile handset but came to know that the features of earlier mobile handset was high and the present mobile handset features are low. Moreover after collecting the mobile handset it is learnt the respondent.2 had sent second hand mobile handset which is also defective and is not properly working. Inspite of laspse of weeks together the defect remained intact which raise to a strong suspicion against respondent.2. Again complainant approached respondent.2 during 2^nd week of September 2015 complaining the same. At that time respondent.2 assured to wait for 2 days assuring to rectify the same. Even  after lapse of 1 week the respondent.2 neither responded nor complied the requests. Hence, the complainant constrained to issue legal notice on 03.10.2015 which was duly served but not responded which amounts to deficiency in service. By the act of respondent the complainant apart from depriving from using of mobile handset subjected to financial loss as well as mental agony. Hence, complainant constrained to institute the present complaint claiming the reliefs as sought.

3.     In response to the notice issued from this Forum the respondents.1, 2 and 3 appeared. While respondent.4 remained absent. Hence, respondent.4 placed exparte. Respondent.1 and 2 appeared through advocates and filed written version, while respondent.3 appeared in person and not filed the written version.

4.     Respondent.1 admits written version contending that the very complaint is incorrect, devoid of merits & reasoning and prays for dismissal of the complaint. Further the answering respondent went on revealing the nature of the business, way of production of the product and maintainability of market for manufactured product and technological features. The answering respondent taken very specific contention that the respondent.1 is not a necessary party even then the complainant knowingly well aware and even though there is no cause of action and even though there was no any claim against the respondent.1 simply impleaded the respondent.1 with an ulterior motive to harass the respondent. At any point of time the respondent not assured with regard to the product and also not issued any warranty. The complainant knowingly well aware of OLX is dealing with resale of used articles placed order and purchased the article at his own risk. At no point of time the answering respondent has not issued any warranty, there will be no system to issue warranty to resold article. The warranty will be issued against 1^st sale which was already exhausted while the complainant purchased the same. Even otherwise the complainant’s grievance is that the respondent 2 had issued Nokia set whereas the answering respondent has no nexus with said mobile handset and answering respondent is not dealing with Nokia. Hence, there is no relationship of consumer and service provider in between complainant and answering respondent and prays for dismissal of the complaint against the answering respondent. That apart the complainant being accepted Nokia product delivered by respondent 2 after making utilize of the same without any protest subsequently with an after thought without any proof of manufactural defects claiming the reliefs against to the provisos of CP Act as such the present complaint is not maintainable. So also the complaint as brought is not maintainable for non impleading OLX as a necessary party & the complaint is suffering from mis joinder of parties and prays for dismissal of the complaint.

5.     While the respondent 2 admits the written version in the same line as the respondent 1 taken contention and denied all the complaint averments and puts the complainant to strict proof of the allegations made in the complaint paras. Further among such other admissions and denials the answering respondent taken specific contention that they are dealing with sale of used 2^nd hand articles. The complainant being well aware of same at his own risk purchased the same. At no point of time the respondent 2 has assured and issued warranty as pleaded by the complainant.  Further the answering respondent denied the invoice and replacement of mobile handset as pleaded in the complaint and puts the complainant to strict proof of the same and further the answering respondent categorically admits even the replaced articles to the complainant were also of used 2^nd hand mobile handsets imported from foreign country and delivered on request by the complainant at his own risk. Hence, either replacement, refund or paying damages as sought by the complainant does not arise. Further the answering respondent disputes the cause of action within the jurisdiction of this Forum and also questions the jurisdiction of this Forum to entertain the present complaint and prays for dismissal of the complaint with exemplary cost.

6.     On the said pleadings the following points have arisen for consideration:

1. Whether complainant has proved that there was deficiency in service on the part of respondents ?
2. Whether complainant is entitled to the relief as claimed ?
3. To what relief the complainant is entitled ?

The complainant, respondent.1 and 2 admits sworn to evidence affidavit. The respondent.3 only produced document stating the mobile handset has been delivered to the complainant at Hubli by receiving the invoice amount except this respondent 3 did not filed written version or placed sworn to evidence affidavit. Complainant tendered interrogatories to the respondent.2 and respondent.2 replied to the interrogatories. Both have relied on documents. Complainant relied on citations. Heard. Perused the records.

Finding on points is as under.

1. Negatively 
2. Accordingly  
3. As per order

R E A S O N S

P O I N T S 1 & 2

7.     On going through the pleadings & evidence coupled with documents of both the parties it is evident that there is no dispute with regard to the fact, that the complainant had purchased the mobile handset in question from the respondent 2.

8.     Now the question to be determined is, whether this Forum has got jurisdiction to adjudicate the present complaint on territorial jurisdiction. Further it has to be determined, whether the mobile handset is suffering from manufactural defects and if not set righting the same, non replacing refunding cost of mobile handset by the respondents amounts to a deficiency in service, if so, for what relief the complainant is entitled.

9.     Since the facts have been revealed in detail which requires no repetition.

10.   Both the respondent 1 and 2 have taken specific contention that the very complaint is not maintainable and this forum has no jurisdiction to adjudicate the same as the transaction has taken place at Mangalore which is out of the jurisdiction of this Forum. On looking into the contents of Ex. C4 legal notice Ex.C9 reply to the legal notice and Ex.C7 the letter of delivery produced by the complainant issued by the respondent 3 reveals that the product sold by the respondent.2 manufactured by the respondent.1 was delivered to the complainant through respondent.3 and 4 at Hubli and the complainant has received the same by paying the amount to the respondent 2 and 3 at Hubli which is within jurisdiction of this Forum. As such this Forum has got jurisdiction to adjudicate the same. Hence the present complaint is maintainable on this point of jurisdiction of the Forum. In this regard  the complainant also relied on citations 2012 (2) CPJ 209 NC & First Appeal 816/2009 15610 Maharashtra SCDRC- Dilip vasant Narvekar vs. CEO Reliance Money Ltd., & others in support of his contention.

11.   On going through the pleadings of complaint as well as the pleadings of respondent.1 & as contended by the respondent.1 there is no claim against the respondent.1. Hence, there is no need of discussing the pleadings of respondent 1 and fixing liability against the respondent.1 as there is no cause of action and claim against the respondent.1.

12.   On taking into the consideration of the grievance of the complainant for the first time the complainant purchased the i phone manufactured by the respondent 1 as per Ex.C1 and the same was returned & was replaced by delivering Nokia set by respondent.2. Admittedly the said device is a second hand resaled and repurchased by the complainant. Though the complainant contended there is one year warranty the complainant did not produced any documents in support of the same. In support of the contention taken by the respondent.2, that he is dealing with sale of second hand articles respondent.2 relied on Ex.R2(1) terms of use OLX.in and relied on item.15 disclaimer of warranty. As per and in accordance with Ex.R2 (1) the respondent.2 denied and disputes the liability. Further the respondent.2 taken contention that the complainant accepted Nokia replaced articles and make utilization of the same without any dispute subsequently as an afterthought raised objections and filed the present complaint by making false allegations and by raising manufactural defects without any supporting documents. Further contended that when the complainant had approached this Forum the burden lies on complainant to establish the deficiency in service or defects in the product . In the absence of expert opinion or in the absence of report showing the device is suffering  from defect on mere assumption and presumption the complainant cannot seek reliefs and prays for dismissal of the complaint. In support of the contention that the device is suffering from defects by the complainant & as denied by the respondent.2 the complainant did not produced any supporting evidence, at least the complainant could have produced any report from the technician showing the manufactural defects as pleaded by him but not made any efforts nor produced any documentary evidence.

13.   Admittedly the device is used and resold one and the same is purchased by the complainant at his own risk. Under those circumstances the complainant cannot claim warranty claims. At best complainant can sought for repair on charge basis but, for that also the complainant has not placed any evidence on the file to show that the mobile handset in question is suffering from defects and the same has not been set right or repaired by the respondent.2. By simply on assumption and presumption claims cannot be entertained. If it is done it will give bad message to the society & will give scope for spurious complaints before the Forum by making utilization of the benevolence of the CP Act. If in the event the complainant had approached with clean hand with supporting documents for his grievance and also with regard to manufactural defects certainly CP Act will comes in aid of the consumers. In the absence of those evidence spurious complaints cannot be entertained. Hence, the complainant failed to establish his case of deficiency in service. The complainant is not entitled for any reliefs as sought. However in the event, if the set is suffering from any defects & approach the respondent.2 the respondent.2 shall repair & set right it by charging repair charges as there is no warranty.

14.   However this Forum noticed either in Ex.C1 or Ex.C3 the respondent.2 did not mentioned anything in the description column whether the item sold is new one or pre owned and resold article. The respondent 2 except in the pleadings never whispered these things in the invoices. If really the respondent 2 is dealing with business of sale of 2^nd hand articles there was no impediment in disclosing the same in invoice itself. Hence, it will amounts to a misleading of consumers. This type of practice has to be curbed and should not be allowed. By noticing the non mentioning the same either in Ex.C1 or in C3 this Forum exercising the rights u/s.14 of CP Act inclined to impose punitive damages to respondent 2 with a direction not to commit such misleadings in future. At the same time the complainant also warned to be diligent while purchasing consumer articles and goods & not to act  at his whims and fancies to the misleading advertisements of the traders & then to approach the forums under CP Act by making misutilization of benevolence of the CP Act.

15.  In view of the above discussions we have arrived and proceed to held issue.1 and 2 in Negatively and accordingly.

16.   Point.3: In view of the finding on points 1 and 2 proceeded to pass the following 

O R D E R

        Complaint is dismissed. As per the observation made the respondent no.2 is herewith imposed punitive damages of     Rs.5000/-. Out of it an amount of Rs.4000/- shall be paid to the complainant. While Rs.1000/- shall be remitted to the Consumer Welfare Fund account maintained in the Forum payble within 30 days from the date of receipt of copy of this order. Failing to comply the same within stipulated period the said amount shall carry interest @9% P.A. from the date of order till realization

(Dictated to steno, transcribed by him and edited by us and pronounced in the open Forum on this day on 31^st day of March 2016)

(Smt.M.Vijayalaxmi)                                      (Sri.B.H.Shreeharsha)

Member                                                           President

Dist.Consumer Forum                                    Dist.Consumer Forum

MSR