BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE
Dated this the 16th August 2010
COMPLAINT NO.35/2010
(Admitted on 23.1.2010)
PRESENT: 1. Smt. Asha Shetty, President.
2. Smt. Lavanya M. Rai, Member.
BETWEEN:
M.S.Chandan,
So Late C.Shankara Rao,
Residing at Jagath,
Door No.19 6 373 16,
Amruth Nagar, Pandeshwar,
Mangalore 575 001. …….. COMPLAINANT
(Advocate for the Complainant: Sri Raghuveer Bhandary.M.)
VERSUS
1. Univercell Telecommunication India
P Ltd.,
M.G.Road, Ballal Bagh,
Mangalore 575 003.
2. Pranav Infocom,
#B2&B3, Divya Enclave,
Opp: Canara College, Jail Road,
Mangalore -575 003.
3. Motorola India Private Limited,
415/2, Meharuli Gurgaon Road,
Sector-14, Gurgaon -122001.
Haryana State. ……. OPPOSITE PARTIES
(Advocate for the Opposite Party No.1: Sri.Vinayak Prabhu)
(Opposite Party No.2 and 3: Exparte.)
ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:
1. The facts of the complaint in brief are as follows:
This complaint is filed under Section 12 of the Consumer Protection Act alleging deficiency in service against the Opposite Parties claiming certain reliefs.
The Complainant is a customer of the Opposite Parties. The Opposite Party No.1 is a dealer and Opposite Party No.2 is a authorized service center and Opposite Party No.3 is a manufacturer of Motorola Mobile Hand Set bearing model name MOTO ROCKER E6 LICORICE.
It is submitted that, the Complainant purchased MOTO ROCKER E6 LICORICE from Opposite Party No.1 on 21.8.2008 for a sum of Rs.10,600/-. On the said hand set has got one year product warranty incase of defect in material and workmanship. On 13.7.2009, the above hand set has become dead due to material defect and the Complainant approached Opposite Party No.1 and Opposite Party No.1 inturn informed the Complainant to approaching Opposite Party No.2. Accordingly, the Complainant approached Opposite Party No.2 for the purpose of repair and rectify the hand set and submitted the hand set on 13.7.2009 and Opposite Party No.2 issued Customer Receipt. It is stated that, the Complainant approached the Opposite Party several occasions, but the Opposite Parties neither rectified nor delivered/returned the hand set to the Complainant. Thereafter, the Complainant lodged a Complaint on 14.9.2009 through customer care. Inspite of lodging a Complaint, the Opposite Parties not complied the same and it is contended that, the hand set become dead and it is defective mobile hand set. Thereafter, the Complainant issued lawyer’s notice dated 9.10.2009 to the Opposite Parties. But the Opposite Parties took false and frivolous contentions and not bothered to replace the handset nor refund the amount and hence the above Complaint is filed by the Complainant before this Forum under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Forum to the Opposite Parties to replace the defective mobile hand set or to return the sum of Rs.10,600/- being the price of the said mobile hand set with interest there on at 12% per annum from the date of purchase and also pay compensation and cost of the proceedings.
2. Version notice served to the Opposite Parties by R.P.A.D. Opposite Party No.1 appeared through their counsel filed version and Opposite Party No.2 and 3 despite of serving version notice produced paper publication and further not appeared nor contested the case till this date. Hence, we have proceeded exparte as against Opposite Party No.2 and 3 and postal acknowledgment marked as Court Document No.1 and 2. And Paper publication made in Hosa Degantha Kannada Daily available on record as Court Document No.3.
Opposite Party No.1 admitted that, the Complainant had purchased the Motorola Mobile hand set from them for a sum of Rs.10,600/- and issued a tax invoice to the Complainant. But it is denied that, the above handset has become dead due to material defect and the Complainant approached this Opposite Party for repair. It is submitted that, this Opposite Party not aware of the Complainant’s approaching them as alleged by the Complainant on several occasions as this Opposite Party has got no work with the repairs or services of any mobile hand sets since this Opposite Party is only a dealer of mobile handset pertaining to different mobile companies. This Opposite Party is not liable for any material defect as alleged by the Complainant. If at all the Complainant has any grievances with regard to the alleged defect as to seek redressal from the manufacturer of the mobile hand set. This Opposite Party not liable for any compensation and contended that there is no deficiency and prayed for dismissal of the Complaint.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:
- Whether the Complainant proves that the mobile handset purchased from the Opposite Parties suffers from manufacturing defect?
- Whether the Complainant proves that the Opposite Parties committed deficiency in service?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
4. In support of the complaint, Sri.M.S.Chandan (CW1) filed her affidavit reiterating what has been stated in the complaint and answered the interrogatories served on her. Ex.C1 to 9 were produced for the Complainant as listed in the annexure. One Mr.Lathish, The Manager of M/s Universal Telecommunications of Opposite Party No.1 and answered the interrogatories served on him. Both the parties are produced written notes of arguments.
We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the Forum and answered the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) & (iii): As per the final order.
REASONS
5. POINTS NO. (i) to (iii):
In the instant case, the facts which are not in dispute is that, the Complainant has purchased Motorola Mobile hand set bearing Model namely MOTO ROCKR E6 LICORICE 355537011457405 from the 1st Opposite Party on 21.8.2008 for a sum of Rs.10,600/- as per Tax Invoice bearing No.UKA: 081728. The Opposite Party No.1 is the dealer and Opposite Party No.2 is the authorized service center and Opposite Party No.3 is the manufacturer of the above hand set.
The Complainant filed affidavit and produced Ex.C1 to C9 before this Forum and stated that, the handset purchased by him within warranty period has become dead due to material defect and Complainant has approached the 1st Opposite Party, 1st Opposite Party inturn directed the Complainant to approach Opposite Party No.2. Accordingly, on 13.7.2009 the Complainant handed over the handset to the 2nd Opposite Party to repair and rectify the defects found in the handset as per Ex.C2 i..e Customer Receipt issued by the Opposite Party No.2. But the Opposite Parties neither rectified nor delivered/returned the handset to the Complainant. Hence, he came up with this complaint stating that the handset sold by the Opposite Parties has manufacturing defect and same is dead and not usable.
The Opposite Party No.1 who is the dealer appeared on record and took a contention that all the matters concerned with the repairs and services of the said mobile handset have to be delt with the manufacturer and its authorized service center and not with this Opposite Party. And this Opposite Party is not liable for any alleged manufacturing defect.
However, it is significant to note that, the Complainant admittedly purchased the handset from the 1st Opposite Party by paying Rs.10,600/- on 21.8.2008. And the above handset has warranty in case of defect in material and workmanship as per Ex.C7 i.e. a Warranty Card for one year from the date of purchase. We find that, the alleged defect found in the handset was within the warranty period and the Complainant rightly approached the Opposite Party No.1 and Opposite Party No.1 inturn directed the Complainant to approach Opposite Party No.2 who is the authorized service center of the above product. The Ex.C2 i.e. the Customer Receipt issued by the authorized service center i.e. Opposite Party No.2 dated 13.7.2009 reveals that, the handset is a dead and no power on, auto off. That means, the handset is proved to be defective within the warranty period. We have further noticed that, the Opposite Party No.2 who is the authorized service center of the above handset and the manufacturer of the above product not appeared before this Forum nor contested the case till this date. The entire oral as well as documentary evidence placed before this Forum not controverted nor contradicted by the Opposite Party No.2 and 3. Opposite Party No.1 who is the dealer though appeared and took a contention that whatever the defects found in the alleged handset have to be delt with the manufacturer i.e. Opposite Party No.3 and Opposite Party No.2 not with the dealer. That means, it is proved beyond doubt that, the Opposite Parties are shifting the burden on the other Opposite Parties, ultimately, the Customer/Complainant herein who purchased the handset put in delima. The Opposite Parties miserably failed to rectify the defect in spite of receiving the mobile handset from the Complainant shows their deficiency in service towards the Customer/Complainant herein. Since, the Opposite Party No.2 failed to rectify the defect found in the mobile handset till this date. It is proved that the handset sold by the Opposite Parties proved to be defective and not up to the standard.
Generally, if the handset has manufacturing defect is to be borne by the manufacturer. That would not mean that, the dealer is absolved from joint and several liabilities. As we know, the manufacturer not deals with the customers directly. Dealer having receiving the amount, under taken free service and rectify defect during the warranty do not escape liability towards the manufacturing defect found in the handset. As we know, the contract through dealer, privity of contract is with him. To ensure execution expeditiously and immediately, if necessary, by making the payment to the Complainant initially and then it will be for the dealer to claim reimbursement from the manufacturer. Therefore, the dealer and the manufacturer both are jointly and severally liable for the defects found in the handset.
The Hon’ble National Commission reported in 2009 I CPJ (80) held as under:
“Defect found immediately after purchase, could not be rectified, joint and several liability imposed by the District Forum upheld in appeal holding that dealer having received the amount, undertaken free service and rectify defects during warranty cannot escape liability towards manufacturing defects found in the product”.
Similarly, the above principles observed by the Hon’ble National Commission applicable to the case on hand.
In view of the above discussions, we are of the considered opinion that, the hand set sold by the 1st Opposite Party proved to be sub-standard quality and sum sorts of defects found in the handset within the warranty period. Therefore, we hold that, the Opposite Party No.1 who is the dealer and Opposite Party No.3 who is the manufacturer are jointly and severally liable to refund the entire amount i.e. Rs.10,600/- paid by the Complainant by retaining the defective hand set. And also pay Rs.5,000/- as compensation for the deficiency committed by the Opposite Parties by retaining the handset till this date. Further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
The complaint against Opposite Party No.2 is hereby dismissed.
6. In the result, we pass the following:
ORDER
The complaint is allowed. The Opposite Party No.1 who is the dealer and Opposite Party No.3 who is the manufacturer are jointly and severally liable to refund the entire amount i.e. Rs.10,600/- (Rupees Ten thousand six hundred only) paid by the Complainant by retaining the defective hand set. And also pay Rs.5,000/- (Rupees Five thousand only) as compensation. Further Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
The complaint against Opposite Party No.2 is hereby dismissed.
On failure to pay the aforementioned amount within the stipulated period as mentioned above the Opposite Parties are directed to pay interest at 12% per annum on the entire amount from the date of failure till the date of payment.
The copy of this order as per the statutory requirements be forwarded to the parties free of charge and therefore the file be consigned to record.
PRESIDENT MEMBER
ANNEXURE
WITNESSES EXAMINED ON BEHALF OF THE COMPLAINANT:
CW1 – Sri.M.S.Chandan – Complainant.
DOCUMENTS PRODUCED ON BEHALF OF THE COMPLAINANT:
Ex C1 – 21.8.2008: Tax Invoice issued by the Opposite Party.
Ex C2 – 13.7.2009: Customer Receipt.
Ex C3 – 9.10.2009: Copy of the legal notice.
Ex C4 – : Postal Receipts (3 in No’s)
Ex C5 – : Postal acknowledgement.(2 in No.s)
Ex C6 – 13.10.2009: Copy of the reply to the Opposite Party No.1.
Ex C7 – : Motorola one year product warranty.
Ex C8 – 22.8.2008: Notarized copy of appointment letter issued by ABN.
Ex C9: 10.8.2008: Notarized copy of Acknowledgment issued by Income Tax Department for having received Income Tax Returns for the year 2008-2009 along with FORM 16 i.e. certificate under Section 203 of the Income Tax Act 1961.
WITNESSES EXAMINED ON BEHALF OF THE OPPOSITE PARTIES:
RW-1 : Mr.Lathish, The Manager of M/s Universal
Telecommunications of Opposite Party No.1.
DOCUMENTS PRODUCED ON BEHALF OF THE OPPOSITE PARTIES:
-Nil_
Dated: 16.08.2010 PRESIDENT
