BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 14th June 2013
PRESENT
SMT. ASHA SHETTY : PRESIDENT
SMT.LAVANYA M. RAI : MEMBER
SRI. ARUN KUMAR K. : MEMBER
COMPLAINT NO.94/2013
(Admitted on 6.4.2013)
Mr.Rajesh,
So Balakrishna,
Hindu, Aged 36 years,
Residing at Kavitha Residency Road,
Urwastore,
Mangalore 6. …….. COMPLAINANT
(Advocate for Complainant: Sri.Ravindranath P.S.)
VERSUS
1. Univercell Telecommunication
(India) Pvt. Ltd.,
Shop No.G2,
Inland Avenue, M.G.Road,
Mangalore 575003.
Rep. by its Authorised Signatory.
2. The Managing Director,
Universal Tele Communication
(India) Pvt. Ltd.,
No.281, T.T. Road, Alwarpet,
Chennai-600 018. ……. OPPOSITE PARTIES
(Opposite Parties :Exparte)
***************
ORDER DELIVERED BY HON’BLE PRESIDENT
SMT. ASHA SHETTY:
I. 1. This complaint is filed under Section 12 of the Consumer Protection Act alleging defect in goods against the Opposite Parties claiming certain reliefs.
The brief facts of the case are as under:
The complainant stated that, he has purchased Sony Ericsson Mobile handset namely XPERIA Mini Black for the value of Rs.12,300/- on 15.4.2012 from the Opposite Party No.1 and Opposite Party No.2 is the manufacturer.
It is stated that, after few days of purchase of the said set the complainant noticed that there was a continuous beat in the said set and the same was brought to the notice of opposite party No.1 many a times within a gap of two weeks and also complained to the service centre. During that time the representative of Opposite Party said that the set will have to be upgraded. Thereafter, the complainant got upgraded the set 2-3 times but the same problem continued, gradually the interest which was shown by the opposite party No.1 at the time of purchase of the mobile set was not there and they started avoiding the calls of the complainant. It is stated that, the complainant even went to the service center reporting the same problem but the complainant did not get proper response. Once again the Complainant visited the shop of the Opposite Party No.1 with the complaint of beat problem in the set, at that time the Opposite Party officials said that there is a moisture problem and the Complainant requested the Opposite Party No.1 to set right the problem but Opposite Party No.1 behaved rudely with the Complainant though they have said that it has been repaired but the Complainant was not in position to use in said set as there was some hearing problem. It is stated that the said set is now completely off/dead and as such the complainant requested the Opposite Party No.1 to replace the same with new set as it is well within the warranty period. But the Opposite Party refused to replace the same.
It is stated that the handset sold by the Opposite Party is a defective and the Complainant is not in a position to use the set for the purpose for which he has purchased. Feeling aggrieved by the above, the Complainant filed the above complaint 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 set or in alternatively to pay sum of Rs.12,300/- being the actual cost of the defective set with interest at 18% per annum from the date of purchase till payment along with compensation and costs of the proceedings.
II. 1. Version notice served to the Opposite Parties No.1 and 2 by R.P.A.D. Opposite Party No.1 and 2 inspite of receiving version notice neither appeared nor contested the case before this FORA. Hence, we have proceeded exparte as against the Opposite Party No.1 and 2. The acknowledgement marked as Court Doc. No.1 and 2.
III. 1. In support of the complaint, Mr.Rajesh (CW1) – Complainant filed affidavit reiterating what has been stated in the complaint. Ex C1 to C4 were exhibited for the Complainant as listed in the annexure in detail. Opposite parties not filed any affidavit nor filed any documents and placed exparte.
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 the Sony Ericsson Mobile handset namely XPERIA Mini Black on 15.4.2012 from the opposite parties suffers from any defect?
- If so, whether the Complainant is entitled for the reliefs claimed?
- What order?
We have considered the notes/oral arguments submitted by the complainant and also considered the materials that was placed before this Forum and answer the points are as follows:
Point No.(i): Affirmative.
Point No.(ii) & (iii): As per the final order.
REASONS
IV. 1. POINTS NO. (i) to (iii):
In the instant case, in order to substantiate the averments made in the complaint, the complainant filed evidence on affidavit and also produced documents i.e. Ex.C1 to C4. Ex C1 is the Tax Invoice, wherein, it is proved that the complainant purchased Sony Ericsson Mobile handset namely XPERIA Mini Black with accessories for a sum of Rs.12,300/- from the Opposite Party No.1 manufactured by 2nd Opposite party in this case. The Ex C2 is the warranty card, wherein, its shows that the hand set has limited warranty from the date of purchase. Ex. C3 is the office copy of the lawyer’s notice issued by complainant to the Opposite Party No.1 reveals that the Handset purchased on 15.4.2012 and called upon the Opposite Parties that the problem in the handset are continuing inspite of upgradation two to three times and asked the Opposite Parties to replace the handset or in the alternatively refund the amount paid by the Complainant. But the Opposite Parties not responded to the Complainant in this case. Further, the Complainant produced the defective handset before this FORA marked as M.O.No.1.
However, we have noted that, in the instant case, the Opposite party No.1 and 2 inspite of served with the version notice issued by this FORA by RPAD the Opposite Parties not appeared nor contested the case on hand. The entire evidence placed by the complainant before this authority has not been contradicted nor controvered by the Opposite Parties. The unrebutted evidence requires no further proof.
Apart from the above, we also noted that, the complainant left with no other option lodged this complaint along with defective hand set which has been marked as MO-1 before this authority shows that the handset sold by the opposite parties are not in use and proved to be defective and hence the opposite parties are liable to either replace the handset or refund the amount paid by the complainant as the defect found within the warranty period. It is known fact that, it is the primary responsibility of the manufacturer as well as dealer and service center to rectify the defects if any found within the warranty period. But in the instant case, the opposite parties not rectified the defects nor replaced the handset inspite of continues problems complaint by the Complainant. We further observed that, the attitude of the Opposite Parties are not satisfactory because as a responsible manufacturer/seller ought to have appeared before this FORA and should have convinced that the handset sold by them are not defective and the same is in using condition. But it is surprise to note that the Opposite Parties insptie of receiving court notice not bothered to appear nor response to the court notice. Therefore, we are of the considered opinion that, the handset manufactured by the Opposite party No.2 and sold by the opposite party No.1 is not upto the quality and proved to be defective and hence the opposites parties jointly and severally liable to refund the entire amount to the complainant because the service of the opposite parties in this case is not satisfactory as well as the attitude of the opposite parties made us to pass an order to refund the amount paid by the complainant instead of replacing the handset or dealing with the very same opposite parties in this regard.
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 received the amount, undertaken 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/replacement 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 in this case.
Under that circumstances, we hereby directed the opposite party No.1 and 2 are jointly and severally shall refund the entire amount paid by the complainant to the opposite parties i.e. Rs.12,300/- and also pay Rs.5,000/- as damages for the inconvenience and the harassment caused to the Complainant by taking back the defective set i.e. M.O.1 produced before this authority. And also pay Rs.2,000/- (Rupees Two thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
In the result, we pass the following:
ORDER
The complaint is allowed. Opposite Party No.1 and 2 are jointly and severally shall refund Rs.12,300/- (Rupees Twelve thousand three hundred only) to the Complainant by taking back the defective handset i.e. M.O.1. Further pay Rs.5,000/- (Rupees Five Thousand only) as damages and also pay Rs.2,000/- (Rupees Two thousand only) as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.
In case of failure to pay the above mentioned amount within the stipulated time, the Opposite Party is directed to pay interest at the rate of 12% per annum on the above said total amount from the date of failure till the date of payment.
Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.
(Page No.1 to 8 dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 14th June 2013)
PRESIDENT MEMBER MEMBER
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 – Sri.Rajesh – Complainant.
Documents produced on behalf of the Complainant:
Ex C1 – 15.4.2012: Original Invoice.
Ex C2 – Warranty card.
Ex C3 -19.2.2013: O/c of the Lawyer’s notice.
Ex C4 – 19.2.2013: Postal Acknowledgment.
M.O. NO.1: Mobile Handset Sony Ericsson
Court document:
Doc.No.1 & 2: Postal Acknowledgements.
Witnesses examined on behalf of the Opposite Parties:
- Nil -
Documents produced on behalf of the Opposite Parties:
- Nil –
Dated:14.6.2013 PRESIDENT
