This complaint  having come up for final hearing before us on  30.10.2014  on perusal of the material records  and on hearing the  arguments of  Thiru. S.J. Jayakumar,(Party in person)  for the complainant and Thiru. R.Gobi, the counsel for the opposite party  and having stood  before us for consideration, till this day the Forum  passed the following

By President, Thiru..K.Anbazhagan, B.A.B.L., 

                       This complaint is filed by the complainant u/s 12 of the Consumer Protection

Act 1986.                   

2) The brief facts of the case of the complainant: -

The complainanthas purchased one “HCL ME Tablet Model Y2”, on 11.08.2012 at opposite party Trichyshow roomfor a sum of Rs.14,800/-.The opposite party having his corporate office at 281, T.T.K. Road, Alwarpet, Chennai-18. The complainantsuffered some trouble with hanging and unable to On and Offoperations of the above said hand set on 28.10.2012.The complainant went to the branch show room of opposite party situate at Thanjavuron 29.10.2012 to rectify the above saiddefect.For which the registration number was given is 13990.

4) Thereafter, the complainant issued a legal notice dated 28.12.2012 to the opposite party for which that the opposite partyhas repliedwith untenable statement.The complainant is unhappy with the service meted out to him and he stands on very firm legal grounds.This apatheticand apparently deceitfulattitude of the opposite party reflects its unresponsiveness to the complainant’s plight.The opposite parties have inflicted enormous amount of mental agony and financial loss on thiscomplainant. Hence the complainant prayed the followingreliefs.

(i) Direct the opposite party to apologies for all the inconvenience caused to thecomplainant.

(ii) Direct the opposite party to make up for the mistake by refunding the full sale amount paid by the complainant.

(iii) Direct the opposite party to pay a sum of Rs.20,000/- towards the physical strain and mental agony suffered by the complainant and his family members.

(iv) Direct the opposite party to pay a sum of Rs.2000/- towards cost of this petition.

6) The opposite party is onlyretailer of mobile phone selling of allbrands and for any manufacturing defects the mobile manufactures are solely responsible for the same, since the warranty is given only by themobilemanufacturer.However,being customer friendlyorganization, without charging any amount from the customer, we do a free service of collecting the mobile from the customer and forward the same to the authorized service centre of the mobile manufacturer for their further action.If the authorized service centreconfirms that the product is having manufacturing defect, the same will be replaced by the manufacturer.The complainant has suppressed material facts of the case and concocted a tailor made story with an ulterior motive to make unjust gains out of the false and vexatious complaint.Hence thecase is liable to be dismissed.There is no deficiency of services of any nature and neither any negligence on the part of the opposite party and hence the opposite party is not liable to make payment of any compensation. The opposite party isnot liable for any compensation or damages as claimed by the complainant and prayed to dismiss the complaint.

7) The pointsfor determination in this case are:

                        1)  Whether the manufacturer  is a necessary party to this proceedings?

                        2)  Whether  there is  any deficiency in service on the  part of the  opposite

                            party?

                       2)  To what relief the complainant is entitled to?

                    8)  The complainant has filed his proof affidavit reiterating  the same averments made in the complaint  and has filed 6 documents   which are Exhibits A.1 to A.6.  The  opposite parties has filed his proof affidavit and no exhibit is marked on his side. Both sides have also filed written arguments.

                    9) POINTS 1 & 2:  Both parties have filed their respective  written arguments.  The opposite party have admitted the purchase of the  “HCL ME Tablet model Y2”  for a sum of Rs. 14,800/- on 11.08.2012 from the  opposite party show room vide Ex.A.1 original  tax invoice issued by the opposite party.  The opposite party has also admits that mobile hand set was taken up  for service without  charging any amount from the customer and they have taken immediate steps  to rectify  problem of the hand set.  The opposite party duly forwarded mobile  to the manufacturer for service,  upon the receipt   same from the  complainant and set  right  the problems, returned to the customer on 16.11.2012.  Ex.A.2  service request form issued by the opposite party  dated 29.10.2012 reveals  that the hand set was received by them for the complaint  of hanging problems and no On and  Off function.  As stated above  after  received the hand set  on 16.11.2012 again the hand set was found defective and  no functioning properly rectified the  earlier mistake. Hence the complainant  on  17.11.2012 went to the opposite party  located at Thanjavur and they have issued Ex.A.3  for receiving the  said hand set for the  complaint, “ Hanging problem and no on and off function”.  The opposite party has alleged there is no service deficiency on the part of the opposite party and stated  as  submitted that  under sec 2(1)(a) of the  Consumer Protection Act 1986  that the complainant has not filed any independent expert report  for the alleged defective mobile phone and they have  also relied upon reported in  case  law

                      (i)    Hon’ble Kerala State Commission in the matter of

                                “Sabeena Cycle Emporium Chennakhaada

                                                       /vs/ 

                                 Thajes Ravi M.R.Pancha villa vedar Ezkhone P.O

                                                              (1992 ) I CPJ 97

           Wherein the  Hon’ble Commission has held that where the complainant alleges defects in the goods,  the Forum is bound to determine this fact on the basis of clear evidence by way of expert opinion.  The aforesaid proposition of law has also been reaffirmed by the Hon’ble  State Consumer Disputes Redressal Commission of West Bengal in the case titled 

            (ii)  “Kehab Ram Mahto  /vs/ Hero Honda  Motors Limited and another”

                   The opposite parties  would like to bring  to the kind attention of this Hon’ble Forum, the observations of the Hon’ble  National Commission in

                                        “Punjab Tractors Ltd  /vs/  Vir Pratap

                                                 (1997) II CPJ 81 (NC)”

                        Wherein it was held that where the Complaint of the complainant were duly and promptly attended to by the  opposite party and no reliable evidence was produced by the complainant in support of his case that he suffered a loss due to inconvenience caused to him,  the complainant is not entitled to any relief.

                        They have also relied upon  Hon’ble Supreme Court Judgement in

                            “Hindustan Motors Limited /vs/ Shiva Kumar and another”

                10) Further that the opposite party  contended that he is only a dealer of mobile phone and not manufacturer and he is not liable for any manufacture defect.  The opposite party pleaded  customer satisfaction and therefore  that they have  received the   hand set from the complainant and forwarded the same to the  authorized service centre of the manufacturer  and  therefore no deficiency of service on the part of the opposite party.  The complainant’s intention is to get unjust money or gains out of  the false and  vexatious  complaint.  The opposite party is not liable  to make payment of any compensation either jointly or severally and hence  prayed  to  dismiss the complaint.  The opposite party  have accepted the affairs taken place up to 17.11.2012 under Ex.A.1 to Ex.A.3.  Therefore   it is established  that there is defect in the  hand set for which it was handed over to the opposite party to rectify the such defects. The said defects was arises within the warranty  period  i.e. within 18 days from the date of the purchase  of the said defect was notified and mistake was not made good for the first time and hence  again handed over to the opposite party to  set  right  to the defect.  Ex.A.4 is office copy of the legal notice dated 28.12.2012 and in which that the complainant narrated the facts of the purchase of hand set and hanging over  the mobile phone to the opposite party shop  twice to carry out the repairs  but not carried out and hence claimed  compensation of Rs.10,000/- with interest @ 15%  per annum etc.,  Ex.A.5 is reply notice issued by the opposite party on 5.1.2013 to the complainant.  In which  they have pleaded that they are not liable for the claim made by the complainant and the manufacturer alone liable in such a case.  Ex.A.6is acknowledgement card.

                      11) On the side of the opposite party no documents is marked.

                       12) The case laws relied on by the opposite party mentioned in the written arguments will not extend any help  to the opposite party because  that the opposite party has received the mobile twice to make  good  the repair of the hand set complained  by the complainant. The hand set is manifest defects  began  within 18 days from the date of the  purchase.

                      13) The complainant has relied  upon judgement  reported in the matter  of

                                “C.N. Anantharam                                              ….. Petitioner

                                                                                  /vs/

                                  M/S. Fiat India Limited & others Etc.Etc.            ….. Respondent

                   The complainant  drawn the attention of this Forum para 9 of the said Judgement                               

                   “Wherein  while considering the provisions of Sections 3 and 14 of the Consumer Protection Act, 1986, this Court was of the view that when the deficiency  began to manifest  themselves it was the duty of the suppliers to attend to such  deficiencies immediately and if the supplier was unable to attend to the deficiencies  and malfunctioning of the system soon after installation, it would amount to “deficiency of service”. Furthermore, when the deficiencies in the system continued to persist during the warranty period, including the extended period, the suppliers were rightly held to be liable for deficiency in service by the State and National  Commission.  It was also  held  that in the light of the specific power conferred under Section 14(1) ( c) of the  aforesaid  Act, damages equivalent  to price of goods could be awarded, despite the provisions of Section 12(3) of the Sale of Goods Act, 1930, as the provisions of the 1986 Act are in addition to and not in derogation of any other provision of law. “

                14) The facts of the case on hand that there is non functioning of the mobile hand set for  hanging and failure to work on and off condition and the same has not been rectified by the opposite party.  The opposite party has undertook the  mobile set  for service for twice.  The 1^st service was failure and for second time opposite party  received mobile set  but not handed over to the complainant  though  mobile set  at  right according to opposite party.  The opposite party took role of  manufacturer but not done to the satisfactory of  complainant.  Hence this Forum is of the view that there is deficiency in service by the opposite party who happened to be the dealer come seller of the said hand set to the complainant.  Therefore  point No.2  decided  in favour of the complainant.  So for  that the point No.1  is concerned  the learned counsel relied upon the judgement reported by the Hon’ble Karnataka State Consumer Disputes Redressal Commission, Bangalore , the same was challenged before the National Consumer Disputes Redressal Commission, New Delhi  in  Revision Petition No. 2884/2006.  In the above said cited  case, that the  complainant purchased a new one  computer  Wipro, from the dealer of Wipro Voyager.   After purchase   the said computer had developed some problem during  warranty period and the same  was  brought to the notice of the  opposite party to rectify the defects.  In spite of the several  respect and reminders, the opposite party has  failed to rectify the defects and hence District Forum  granted relief such as to get back his money  with interest from the opposite party,  aggrieved that order of District Forum, filed  appeal  before State Commission and  that the manufacturer alone liable and responsible for any defects in the computer which developed after installation.  The  Hon’ble State Commission, Karnataka state  not accepted  the  contention of the opposite party  and held once the computer sold by the dealer  then he is liable and responsible  to rectify the defect and the manufacturer need not be the necessary party to the proceedings as there is no  privity of contract  between purchaser and   the  manufacturer.  The dealer is liable to pay  the amount to the purchaser after collecting the  same from the manufacturer.  Thereafter the aggrieved party namely  dealer or seller of the  computer filed  Revision Petition before the Hon’ble National Consumer Disputes Redressal Commission at New Delhi.   The Hon’ble National Commission  has confirmed the  decision of the Distrct Forum and State Commission.  Therefore this Forum is of the  view  that the manufacturer namele HCL  is not necessary party  because there is no privity of contract between the complainant and the manufacturer.  Hence the point No.1 is answered in favour of the complainant.   Though that the opposite party has pleaded that  the hand set mistake was rectified,  after 17.11.2012  as if seller has requested to the complainant to receive the hand set,  had not been proved by documentary evidence before  this Forum and as it is the hand set is  with the opposite party.

                    15) POINT No.3:  In the  result, the complaint is  partly  allowed.  

                         1) The  opposite party  is  directed   to  pay  the sale price amount of the hand set i.e. Rs.14,800/- with interest at the  rate of 6% per annum from the date of the complaint  till the date of  realization.

                       2)  The opposite party  is directed  to pay a sum of Rs.5000/-(Rupees five thousand only) towards compensation for the mental agony suffered by complainant   owing to the deficiency of service on the part of the opposite party, and

                     3)   Rs.2000/- (Rupees two thousand  only)  towards cost of his litigation to be paid  to the complainant  within  30 days from the date of this order.

          This order was dictated by me to the Steno-Typist, transcribed by her and corrected and pronounced by me on this 13th^th   day of  November    2014.

MEMBER                                                                                                    PRESIDENT

List of documents on the side of the complainant:-

List of documents on the side of the Opposite party :    NIL