IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Tuesday the 24th day of May, 2022.
Filed on 04.10.2021
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- C.K.lekhamma, B.A.L, LLB (Member)In
CC/No.235/2021
between
Complainant:- Opposite parties:-
Sri. Anoop.R.Nair, 1. The proprietor
Jaya Nivas Thalapathy Mobiles
Thayamkary.P.O Shop. No.2 Old Bust Stand Theni
Edathua,Alappuzha -689573 Tamil Nadu-625531
(Adv. Jaya Mangalanand)
2. Sri. Pradeesh, Proprietor
Thalapathy Mobiles, Shop.No.2
Old Bust stand, Theni
Tamil Nadu-625531
3. Sri. Ravisankar Ramachandran
Manager, Thalapathy Mobiles
Shop.No.2, Old bus Stand Theni,
Tamil Nadue-625531
(Adv. Sadarlana N for Ops 1 to 3)
4. Sri. Arun, Staff
Thalapathy Mobiles, Shop No. 2
Old Bus stand Theni
Tamil Nadu-625531
(Exparte)
5. The manager, Thalapathy
Mobiles, Suppan Raghavan
Colony, NRT Nagar, Theni
Alinagaram, Tamil Nadu.
(Exparte)
ORDER
SMT. C.K.LEKHAMMA(MEMBER)
Brief facts of complainant’s case are as follows:-
1. The complainant purchased following second hand mobile phones.
1. OPPO F17 Rs.12,000/-
2. Real me X2 Rs. 11,000/-
3. Samsung Note8 Rs.13,000/-
4. VIVO S1 Rs. 9,000/-
5. Samsung A30s Rs. 9,000/-
6. M1Note 8 Pro Rs.9,200/-
7. Real me 6 Pro Rs.8,500/-
8. Samsung s 8 Rs. 9,000/-
9. I PAD mini Rs.5000/-
Total Rs. 85,700/-
Worth Rs. 85,700/- from the 1st opposite party dtd. 7/8/2021. The opposite parties offered Rs.5000/- discount and allowed to pay Rs. 81,400/-. The complainant requested 3rd opposite party the manager of the 1st opposite party to show the working condition of the said phones. But he told that it cannot possible since considering the numerable customers waiting to purchase phones. He assured that if ever there is any problem with to any phones, they will be replaced.
The complainant tried to sell said second hand mobiles to certain shops. They told the complainant that the prices are too high. Moreover, 6 out of 9 phones are not in proper working condition. Therefore the complainant contacted the 3rd and 4th opposite party and informed the matter. They told that to bring back the phones so that they will rectify the defects. They assures to give price reduction also. Hence the complainant had to return the shop at Theni. Due to covid-19 restrictions, the complainant had to spent a huge amounts to hire a taxi and conduct antigen test etc and also met other expenses. At the shop they had collected the defective mobiles and informed that they will rectify the defects and send back the phones by parcel. The 3rd opposite party also promised that since he convinced that the price realized is high, he will offer price reduction and additional phones for the amount of price reduction, would be included in the parcel containing the repaired phones. The complainant also convinced the above problems in detail to the 2nd opposite party. He offered all help. The complainant returned home, believing the words. The parcel received after three weeks but the complainant found that none of the phones was in working condition. The complainant was thus convinced that the defects had not been rectified and thus had been cheated. There were no additional phones as promised including the packet. The complainant contacted 3rd opposite party he spoke very roughly and denied to do anything more, informing that the policy of the company has been clearly stated in the bill that goods once sold will not be taken back or exchanged under any circumstances. The complainant had been denied justice. The complainant had purchased second hand mobiles so sell the same to the required shops at higher prices for the purchase of earning his livelihood. It was the only source of job in the fast spreading covid season when all areas of work is in a standstill but only the sale of mobile was in full swing. But due to the deficiency of service and unfair trade practice of the opposite parties the complainant is unable to earn profit for his livelihood yet. This has affected his life very badly and also his daily bread. Further that it was because of the company was aware of the defect to the mobile and that the same could not be rectified, they returned the mobile without rectifying the problems. In the mean while complainant was in financial crises he tried to sell three of the mobiles in working condition. However the buyer shop offered only a lesser price than paid. Due to the said transaction the complainant incurred the loss of Rs. 17,700/-. The remaining six mobiles are not in working condition .
1. Samsung Note8 - Rs.13000/-
2. VIVO S1 - Rs.9000/-
3. Samsung A30S - Rs.9,000/-
4. Real me 6 pro - Rs.8,500/-
5. Samsung S8 - Rs.9,000/-
6. I PAD mini - Rs.5000/-
Total - 53,500/-
Consequently the complainant sent a letter dtd.12/9/2021 to the opposite parties by registered post, explaining the matter in detail and requesting the opposite parties to accept back the six defective mobiles and to refund its cost with interest. Even though the opposite parties received the notice on 18/9/2021 but , they have not responded in the matter till the date. Hence the complainant approached before the commission for the following reliefs.
1. to direct the opposite parties to refund Rs. 71,200/- being the cost of the six mobile and the money loss incurred by selling three phones with interest from the date of purchase.
2. Direct the opposite party to pay compensation for deficiency in service and cost of the proceedings.
2. Version of the opposite parties 1 to 3 are as follows:-
The complaint is not maintainable either in law or on facts. The said opposite parties denied all the allegations leveled against them in the complaint. They have denied the allegation in the complaint that the complainant had purchased the said mobile phones at the whole sale rate from the 1st opposite party and sell the same at higher prices at various shops. The allegations in the 5th para of the complaint is denied. The complainant never contacted the 4th opposite party and who did not invite the complainant to the 1st opposite party shop. Moreover the 1st opposite party did not sell mobiles to the complainant on 7/8/2021 and issue any bills. Usually, customers purchase second hand mobile at a lower price from the 1st opposite party and resale directly to the customers and earning profit for livelihood. Before conducting the sale of the product the opposite parties have ascertained its function and shown to the customers. Discounts have been given and sells the products at the lower price. Therefore they did not take back the phones after sales. Further allegation is that some phones are not in a working condition is denied by the opposite parties. they have contended that the complainant failed to prove the defects with the support of expert evidence and also pointed out that the said gadgets are not produced for verification. Moreover the complainant failed to adduce the evidence concerned his traveling expenses and other expenses as averred in the complaint. The said opposite parties never gave any assurance to the complainant that they would repair the gadgets and returning the same. After receiving notice the opposite parties, informed the complainant over the phone that they are ready to service the gadget/ mobiles or to replace those but the complainant was not willing. Opposite party did not promise to give guarantee to the used mobiles and the same was published in their shop. Therefore, the complainant is not entitled to get any reliefs from opposite parties and the complaint is to be dismissed.
3. Points for determination are as follows:-
1. Whether the complainant is a consumer?
2. Whether the complainant is entitled to get refund from the opposite parties?
3. Whether there is any deficiency in service from the part of opposite parties? If so what would be the quantum of compensation?
4. Reliefs and cost.
4. Complainant filed proof affidavit and Ext.A1 to A5 were marked. Opposite parties 1 to 3 did not cross examined the complainant. Thereafter the evidence was closed. The counsel for the opposite parties filed arguments notes.
5. Point No. 1 to 3:-
The averments in the complaint is that the complainant had purchased nine numbers of second-hand mobile phones from the 1st opposite party for an amount of Rs.81,400/- for conducting resale business. Further, 6 out of the 9 phones are not in proper working condition. But the opposite parties did not ready to rectify the defects or replace the products. Due to the immediate necessity for money, the complainant constrained to sell 3 of the mobiles at a lesser price than he spent for purchase. He had purchased said gadgets to sell the same to the required shops at higher prices and thereby earn profits for livelihood. Hence he is alleging a deficiency in service.
Opposite parties 1 to 3 resisted said allegations in the complaint and contended that the complainant purchased second-hand mobiles from the 1st opposite party so they did not give any warranty to the product. The alleged defects are not proved with the support of an expert opinion. This opposite parties never give any promise or assurance to the complainant.
Admittedly, the complainant had purchased 9 numbers of second-hand mobile phones of different brands from the 2nd opposite party. It is averred in the 12th paragraph of the complaint that the disputed products had been purchased to sell the same to the required shops at higher prices and thereby earn profit for livelihood. Further, in paragraph no.15 it is mentioned that he had sold 3 mobile phones to a shop. The basic issue in matter is whether the complainant is conducting the business of resale the product after purchasing the same from the 1st opposite party is within the purview of ‘consumer’ as defined in the CP Act 2019. The complainant admitted that he is conducting the resale of the product is the sole purpose of earning profit for livelihood. So it is relevant the word ‘consumer’ is defined under Sec.2(7)(i)of Consumer Protection Act 2019 reads as follows:-
“ any person who buys any goods for a consideration which has been paid and partly promised or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of 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 of for commercial purpose.”
On going through the facts of the case it is evident that the goods purchased by the complainant from the 1st opposite party are being used by the complainant for resale and therefore, the complainant failed to establish that he is a consumer within the ambit of ‘consumer’., as defined in section 2(7) (I) of the CP Act 2019 Even though, the ops did not take such contention in their version, it is well settled that only a person who approached the Consumer Commission should be a consumer as envisaged under the provision of CP Act. In view of the aforementioned reasons, we found that the remedy of the complainant lies elsewhere. Therefore, issue, no.1 is found against the compt.
5. Point. no.4:-
In the result, the complaint is rejected and direct as follows:-
(a) The complainant is directed to receive back the complaint and the related documents from the registry of this Commission, to be filed before the appropriate authority, within 30 days from the date of receipt of this order.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 24th day of May, 2022.
Sd/-Smt. C.K.Lekhamma(Member)
Sd/-Sri.S.Santhosh Kumar(President)
Appendix:-Evidence of the complainant:-
Ext.A1 - Delivery Chellan cum Proforma Invoice
Ext.2 - Copy of consignment tracking
Ext.A3 - Letter
Ext.A4 - Copy of postal receipt and Legal notice.
Ext.A5 - Copy of Tracking Details of Notices sent to opposite parties
Ext.A6 - AD card
Evidence of the opposite parties:- NiL
///True Copy ///
To
Complainant/Oppo. party/S.F.
By Order
Assistant Registrar
Typed by:- Br/-
Compared by:-
