By. Smt. Beena. M, Member:-

This is a complaint filed under section 12 of the Consumer Protection Act 1986.

2.  The Complainant is an LIC agent having business all over Wayanad and outside Wayanad.  The Complainant had purchased a Samsung A30, Mobile Phone from First Opposite Party on 07/09/2019, which is manufactured by third Opposite Party, for an amount of Rs.15,500/.  At the time of purchase, First Opposite Party had assured the quality and good performance of the mobile.   The phone became switched off during March 2020. The Complainant entrusted the same to the First Opposite Party.  The Complainant got back the mobile phone after one month from First Opposite Party.  It was stated by the First Opposite Party that defective board was replaced.  When the sim card was inserted, shown activated but no range was displayed and then it was again entrusted to the First Opposite Party.  After 15 days, the phone was taken back from First Opposite Party.  The phone again started giving similar problems.  It suffers from some manufacturing defect.  According to the Complainant, the act of First and Second Opposite Party in selling defective mobile phone amounts to unfair trade practice and service of First and Second Opposite Parties are not satisfactory and there is deficiency in service on their part.  Hence, this Complaint.

3. Notices were served to the Opposite Parties. All are appeared and filed their version.

4.  The version filed by the First Opposite Party is as follows:-

      The First Opposite Party is the proprietor of the shop and selling mobile phone of many companies.   The First Opposite Party submitted that he is only a dealer and the warranty conditions shall be applicable to the product, which is purchased by the Complainant and if any defects arising during the period of warranty, the company is responsible to rectify the defects.  First Opposite Party further submitted that being the seller of mobile phones of various companies, they are not responsible for any manufacturing defects, it is the duty of the Second Opposite Party service centre and Third Opposite Part the manufacturer to remove the defects.  The First Opposite Party also submitted that being a trader of mobile phone of different companies, they never induce customers to select the product of any particular company.  The First Opposite Party admitted that the Complainant approached alleging Complaint, they collected the mobile phone and forwarded to the service centre.  There is no deficiency in service on the part of the First Opposite Party.  Therefore, the First Opposite Party sought for the dismissal of the complaint with costs.

5.  The Second Opposite Party stated in their version that they replaced the mother board and back cover of the mobile after the period of warranty without receiving any cost of replacement by believing the statement of the Complainant that she would not proceed with the Complaint.   They further requested to take steps to collect the amount incurred for the cost of the replacement from the Complainant, if the Complainant proceed with the complaint.               

  6.  The Third Opposite Party stated in their version that the Complainant has not approached this Commission with clean hands and suppressed the true and material fact but  the intention of the third Opposite Party is to serve its customers and provide goods at the most competitive price and also to enable most impeccable after sale service and there is no intention whatsoever to deny the same under any circumstances. In case of any after sale service quality issue is brought to the notice of service centre, as a policy matter, the same is immediately corrected as a matter of priority.  The Third Opposite Party also states that the Complainant has by way of relief sought compensation without any manner demonstrating  any loss in fact been occasioned and in what manner computation of compensation claimed has been made and that the complaint is thus a motivated attempt to obtain unfair advantage and is accordingly liable to be dismissed.  In fact, the third Opposite Party provides warranty of one year, but the warranty of unit become void in the following conditions:-

1. Liquid logged/water logging
2. Physically damaged
3. Serial number missing
4. Tampering
5. Mishandling/ burnt etc.

7.  The Third Opposite Party further submitted that the Complainant has failed to prove alleged manufacturing defect.  He has not placed on record any analysis test report for the perusal of the Commission and in the absence of any technical report on record, the Complaint is liable to be dismissed on that ground. The Third Opposite Party stated that the warranty means repair only and not replacement.  The mother board of the mobile was replaced within the warranty period and the Complainant has received the same after satisfaction.  When the Complainant entrusted the mobile for repair, the service centre replaced the mother board within the warranty period.  Again, the mobile phone entrusted to mother board was required to be replaced, but the Complainant denied the replacement of mother board, but he wanted refund of the money.

8.  From the side of the Complainant, she appeared before the Commission and chief affidavit filed.  She also produced 2 documents which were marked as Ext.A1 and Ext.A2.  No oral evidence was adduced by the Opposite Party. Even though the warranty card is produced by the Opposite Party No.3 it was not marked.  When the case is fixed for the re-examination of Complainant on the request of Opposite Party No. 1, none has appeared on behalf of the Complainant.

 9.  Points for consideration are:-

1. Whether the Opposite Parties have committed Unfair Trade Practice by selling a defective product?
2. To what relief the Complainant is entitled for?

10.  The case of the Complainant is that he had purchased a Samsung A30 mobile phone on 07/09/2019 for a sum of Rs.15,500/- from Opposite Party No.1, which was manufactured by Opposite Party No.3. To prove the same the Complainant has produced Purchase bill, marked as Ext.A1.  The acknowledgement of service request issued by the Second Opposite Party was also produced.  Looking into this document, on 20/06/2021, the Complainant handed over her mobile with Opposite Party No. 2 for repair. The defect found in the hand set clearly mentioned that automatic off, memory card not working, no net-work etc.

 11. As regards the defects in the handset, the Complainant narrated the same in detail in the Complaint and that has been stated by her in the affidavit.  All the Opposite Parties in their versions, practically admitted almost all the allegations made in the Complaint, particularly defects in the hand set.  The  First Opposite Party has sold the mobile to the Complainant as a dealer of the Third Opposite Party, the manufacturer.  It is contended that he is only a dealer and as such, Third Opposite Party, manufacturer alone is answerable to the claim of the Complainant.

12. But it is well settled that the manufacturer as well as the dealer are equally liable and responsible.  Moreover, as to manufacturing defect, in ordinary course, if the dealer act just as an agent of the manufacturer, he could not be held liable for manufacturing defect and the liability would be that of manufacturer.  But in case where the independent dealership without there being any agency of the manufacturer, mobiles are purchased for the purpose of sale, then the dealer cannot escape from the liability.   The retailer /seller is a person who has supplied and sold the product to the Complainant. Therefore, the retailer also is liable for the defect.  The Opposite Party, retailer has received the consideration amount of Rs.15,500/- from the Complainant and sold the mobile to him.  Therefore, Opposite Part No.1 is also liable for the Unfair Trade Practice.

 13. Hence, absolutely we have no reason to disbelieve the case put forth by the Complainant regarding the defects in the handset. Considering the facts, from the material on record it is made out that despite repair of the hand set more than two times problems had not been solved.  The purchaser never expected that a new brand mobile would have inherent defects from the very beginning.  The replacement of parts at the very first instance created shadow of doubt on the mechanism of the mobile and this fact is sufficient to hold that it was a manufacturing defect in the mobile.  The Third Opposite Party also submitted that the engineer informed that motherboard was required to be replaced but the Complainant denied replacement of mother board but she wanted refund of the money. Here when the mobile became defective and he approached the Opposite Party No.2 ie., service centre. They have issued acknowledgement for service request as per Ext. A2.  It is evident that the mobile became defective within the warranty period.

14. We find that the service centre, Opposite Party No 2, has rendered proper service to the Complainant and as such, there is no deficiency in service on their part and the complaint against Second Opposite Party will not stand.

 15.  In the facts and circumstances of the case, we find that it is a clear case of supply of defective mobile set to the Complainant, which is beyond repairs.  As such, we find it to be a case of unfair trade practice on the part of the Opposite Party No. 1 and 3.

 In view of the above discussion, we allow the complaint and direct the Opposite Party No.1 and 3 jointly and severally to refund an amount of Rs.15,500/- (Rupees Fifteen Thousand and Five Hundred Only) being the cost of the mobile to the Complainant subject to returning of the mobile set along with all the accessories thereof by the Complainant to the Opposite Parties.  Opposite Party No.1 and 3 shall also pay jointly and severally to the Complainant an amount of Rs.10,000/-(Rupees Ten Thousand Only) towards compensation and Rs.5,000/- (Rupees Five Thousand Only) as cost of the proceedings.

     The Opposite Parties are directed to comply with the order within one month from the date of receipt of a copy of this order, failing which the Complainant is entitled to interest @ 9%p.a. on the awarded amount from the date of order till realization.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 5^th day of September 2023.

Date of Filing:-07.07.2020.

PRESIDENT   :Sd/-

MEMBER       :Sd/-

MEMBER       :Sd/-

APPENDIX.

Witness for the Complainant:-

PW1.              Mahaja. K.                                        LIC Agent.

Witness for the Opposite Parties:-

Nil.

Exhibits for the Complainant:-

A1.                  Tax Invoice.                                                  Dt:07.09.2019.

A2.                  Acknowledgment of Service Request. Dt:02.06.2020.

Exhibits for the Opposite Parties:-

Nil.

PRESIDENT   :Sd/-

MEMBER       :Sd/-

MEMBER       :Sd/-

/True Copy/

                                                                                Sd/-

                                                                                             ASSISTANT REGISTRAR

                                                                                                 CDRC, WAYANAD.

Kv/-