Complaint filed on: 30-06-2022
Disposed on: 18-04-2023
BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL COMMISSION, TUMAKURU
DATED THIS THE 18th DAY OF APRIL, 2023
PRESENT
SMT.G.T.VIJAYALAKSHMI, B.Com., LLM., PRESIDENT
SRI.KUMARA.N, B.Sc. (Agri), LLB., MBA., MEMBER
SMT.NIVEDITA RAVISH, B.A., LLB. (Spl)., LADY MEMBER
CC.No.54/2022
Sri. RamaNarasegowda
S/o Late H.N.Narasimhamurthy
Aged about 43 years, R/at
Hosahalli Village,
Obalapura Post,
Kora Hobli, Tumakuru Taluk.
……………….Complainant/s
(By Smt/Sri. Shivanna .S, Adv.)
V/s
The Proprietor, M/s Surabhi Telecom,
JDS Complex Building, Ashoka Road,
Opposite Red Cross Bhavan,
Tumakuru City.
……………….Opposite Party/s
(OP1 By Sri/Smt. H.P.Nataraja, , Adv.,)
:ORDER:
BY SRI.KUMARA.N., MEMBER
This complaint was filed by the complainants under Section 35 of the Consumer Protection Act, 2019, with a prayer to direct the OP to hand over the new brand of same hand set mobile or in the alternative to pay the entire sale consideration of the said hand set with interest @ 18% PA along with compensation of Rs.1,00,000/- for mental harassment and loss of business with interest @ 18% OA from the date of defect of hand set till realization.
2. In this case opposite party was / is a Proprtietor, M/s Surabhi Telecom, JDS Complex Building, Ashoka Road, Tumkur (hereinafter called as “OP”).
3. On the promotion made by the OP, the complainant purchased Samsung A525 5G6+128 hand set mobile for Rs.35,999/- including GST. When the complainant visited the OP shop for the purchase of the mobile handset, the OP explored the loan facility & insurance for the mobile hand set, accordingly, the OP arranged the loan and after the calculation, received down payment of Rs.7/- and the OP directed the complainant to pay Rs.4,765/- on every month, on or before 5th of every calendar month and after the payment made, finished the formalities, the OP handed over the, Samsung A525 5G6+128 hand set mobile to the complainant, which was used for his personal work and the OP arranged the policy No.IND21J1857422422 and same is valid till closer of all monthly installments.
The complainant further submitted that after few days of used the said Mobile hand set, from the date of purchase of the mobile, there occurred mechanical defect i.e display was not shown in the mobile, as such the complainant is unable to use the said mobile and hence approached the OP and given complaint orally about the mechanical defect in the mobile. The OP instead of rectifying the problem gave evasive reply and directed to claim the insurance, since the policy was in force. It is further contended that due to act of the OP, the complainant issued the legal notice, but the OP did not reply for the same. Hence, there is a deficiency of service on the part of OP. Due to deficiency of service on the part of OP in not rectifying the mistake, the complainant suffered huge loss of money in his profession. Hence, this complaint.
4. The complaint registered and issued notice to the Opposite party, after the notice served, by this Commission, the OP appeared through its counsel and filed its version contending that the complaint filed by the complainant is not maintainable, for non joinder of manufacturer as necessary party and the complainant by creating story and cause of action filed this false complaint. The OP further contended that, the OP is a Dealer / Retailer, purchased products from the distributor / whole seller. If the complainant has any problem with his mobile, he has to approach the service centre. The OP neither the manufacturer nor service centre. The OP denied all other allegations made in the complaint and prays to dismiss the complaint as there is no any deficiency of service on their side.
5. The Complainant has filed his affidavit evidence and also produced some copies of documents. The OP has not filed his affidavit evidence and also not produced any documents.
6. We have heard the arguments of complainant in part. Thereafter both parties not appeared and hence further arguments of complainant and arguments of OP is taken as heard and posted for orders.
7. The points that would arise for determination are as here under:
1) Whether the complainant proves the deficiency in service on the part of OP?
2) Is complainant entitled to the reliefs sought for?
8. Our findings on the aforesaid points are as follows:
Point No.1: In the partly Affirmative
Point No.2: In the partly affirmative for the below
:R E A S O N S:
9. The complainant, argued that, after the few days of purchased the Samsung A525 5G6+128 hand set mobile ,by paying Rs.35,999/- which including GST, the display of the said mobile hand set damaged and the complainant approached the OP for repair, the OP not responded. The complainant further submitted that, at the time of purchasing the said mobile, the OP only suggested and recommended to purchase the said mobile hand set, without giving any instructions of the proper use, by arranging loan and insurance for the said mobile hand set. The OP never gave the address and contact details of the manufacturers and service centre in spite of the several requests. The complainant prayed to allow the complaint and award compensation. The Complainant produced copy of legal Notice dated 30-12-2021,Postal acknowledgement of legal notice served, copy of the Tax invoice dated 08-10-2021, HO1655 for Rs 35999.00, copy of the delivery order 08-10-2021, copy of the bank statement of the complainant, wherein on 10-11-2021 Rs 4851.39, & on 06-12-2021 Rs 4767.00 debited.
10. Distributor is an agent of a manufacturer, who supplies goods to retailers, where as retailers are agent of manufacturer / distributor who sell goods to the end-users/customers/consumers.
A sales contract is a special type of contract. Wherein the exchange of a commodity for money take place, which includes.
- Transfer of ownership: Ownership of the goods must be moved from the seller to the buyer, or there should be an agreement in which the transfer of ownership is made.
- Price: The buyer in the contract must pay a price for the goods.
Essentials elements of a Contract of Sale are,
- There must be at least two parties; one is the buyer, and other is the seller.
- The subject matter of the sale is the goods.
- The goods should pass from seller to buyer.
Payment should be made in the country’s legal currency
11. Mobile sales dealer ,Demonstrates and explains merchandise, selecting and suggesting options suitable for the customers’ needs. Answers customer's questions about merchandise. Assists customers with purchase decisions. Retrieves merchandise from sales floor, stock room, or other inventory locations; places special orders.
12. Mobile Display damage; Screen Damage is 71% of the reason for mobile screen repairs, According to the report, “A cracked screen is unsavory to look at and it also poses danger to other parts of your phone. The crack allows the dust and moisture to get inside the phone easily, which damages other components that are intrinsically put together inside the device.”Exposing your phone to any heat, dry or wet, can result in Mobile display problems or LCD phone problems.
13. Section 86 Consumer Protection Act 2019: A product seller who is not a product manufacturer shall be liable in a product liability action, if—
- (a) he has exercised substantial control over the designing, testing, manufacturing, packaging or labelling of a product that caused harm; or
- (b) he has altered or modified the product and such alteration or modification was the substantial factor in causing the harm; or
- (c) he has made an express warranty of a product independent of any express warranty made by a manufacturer and such product failed to conform to the express warranty made by the product seller which caused the harm; or
- (d) the product has been sold by him and the identity of product manufacturer of such product is not known, or if known, the service of notice or process or warrant cannot be effected on him or he is not subject to the law which is in force in India or the order, if any, passed or to be passed cannot be enforced against him; or
- (e) he failed to exercise reasonable care in assembling, inspecting or maintaining such product or he did not pass on the warnings or instructions of the product manufacturer regarding the dangers involved or proper usage of the product while selling such product and such failure was the proximate cause of the harm.
14. In the above discussions, in this case, the complainant, on 08-10-2021 purchased the mobile hand set by paying Rs 35999.00 to the OP, and the OP arranged loan and insurance, which is still valid, is an admitted fact. After few days of purchase, the said mobile display damaged and the complainant approached the OP for repair, the OP not responded, the OP defense of, the OP is not manufacturer, and the OP purchased the said mobile phone from the distributor in turn, it was sold to the complainant and if any problem the complainant need to approach the service centre or manufacture. The OP being a dealer or retailer sells the product to the consumers or end users, its bound duty to provide instructions, details of service centre and manufacturer. The documents, tax invoice, delivery order and bank statement, proves that the complainant is a consumer with the OP and sales process taken, paid consideration, and ownership of product transferred from the OP to the complainant. When the complainant approached the OP for Mobile display repair, the OP would have resolve the matter by sending to the service centre, but instead the OP not responded, which leads to deficiency on the part of OP, and the OP is liable for rectify the mobile hand set problem. The complainant prayed to award compensation of Rs 1,00,000.00, but the complainant not produced any documents to support of it and award the same, in the result, we proceed to pass the following;
:O R D E R:
The complaint is partly allowed with cost.
The OP is directed to rectify the defect or to get it repair the Mobile hand set display with warranty.
It is further ordered that the OP shall pay litigation cost of Rs.5,000-00 to the complainant.
The OP is further directed to comply the above order within 45 days from the date of receipt/knowledge of the order otherwise; it carries fine of Rs 100.00 per day, till compliance.
Furnish the copy of order to the complainant and opposite party at free of cost.
