BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM RAICHUR.
COMPLAINT NO. (DCFR) CC. 3/11.
THIS THE 21st DAY OF DECEMBER 2011.
P R E S E N T
1. Sri. Pampapathi B.sc.B.Lib. LLB PRESIDENT.
2. Sri. Gururaj, B.com.LLB. (Spl) MEMBER.
*****
COMPLAINANT :- M. Vasudeva S/o. M. Veereshbabu, age: 33 years, Occ:
Business, Prop: & R/o. SLV Enterprises, 1-1-126/1,
behind Ram Mandir, Udayanagar, Station, Raichur 584101.
//VERSUS//
OPPOSITE PARTIES :- 1. Usha Srinivas Enterprises Pvt., Ltd., Block-A, DDA
Commercial Complex, Naraina Ring Road, New Delhi- 110028.
2. Usha Lexus Ltd., No. 18-19, Aditya Commercial Complex, Nangalraya, New Delhi- 110 046 India.
3. Usha Lexus Electronics Ltd., Hotel Rama, 40/2, Lavella Road, Bangalore, Karnataka.
4. Usha Lexus Electronics Ltd., Branch Office, 133 Shivam Complex, Super Market, Gulbarga- 585 701.
CLAIM : For to direct the opposites to pay an amount of Rs.
3,00,350/- jointly and severally receiving back 133 units of mobile stocks manufactured by them, to pay an amount of Rs. 50,000/- towards mental agony and harassment to pay an amount of Rs. 10,000/- towards cost of this litigation with other reliefs as deems fit to the circumstances of this case.
Date of institution :- 20-01-11.
Notice served :- 24-01-11.
Date of disposal :- 21-12-11.
Complainant represented by Sri. T.M. Swamy, Advocate.
Opposite Nos- 1 to 3 Ex-parte.
Opposite No.4 represented by Sri. G.S.R.K., Advocate.
This case coming for final disposal before us, the Forum on considering the entire material and evidence placed on record by the parties passed the following.
JUDGEMENT
By Sri. Pampapathi President:-
This is a complaint filed by complainant against the opposite Nos. 1 to 4 U/sec. 12 of Consumer Protection Act, for to direct the opposites to pay an amount of Rs. 3,00,350/- jointly and severally by receiving back 133 units of mobile stocks manufactured by them, to pay an amount of Rs. 50,000/- towards mental agony and harassment, to pay an amount of Rs. 10,000/- towards cost of this litigation with other reliefs as deems fit to the circumstances of this case.
2. The brief facts of the complainant’s case are that, he is the retail seller of mobile phones manufactured by opposite Nos 1 to 4 at Raichur having agency from them in the year 2006. He is selling the said mobile phones for his livelihood, after getting agency till 2009 there was good relationship in between them. Opposites provided a local service center of the said mobiles in Raichur to one Khalid Hussain, Aamina Telecommunications, now it is closed, due to non co-operation by the opposites. Thereafter opposites stopped the manufacturing of Usha Lexus mobiles and started with drawing of service center in India, due to non availability of service center in Raichur, the complainant is not able to sell about 133 mobiles worth of Rs. 3,00,350/- of various models, he requested to opposites to take back all the mobiles and to pay the cost of them, but they shown their negligence in taking back all the mobiles and in making payment of the value, accordingly he filed this complaint for the reliefs as noted in it.
3. Opposite No- 1 to 3 remained Ex-parte.
Opposite No-4 appeared in this case, filed its written version by contending that, the phone purchased by the complainant from opposites was for commercial use to run the business. Hence he is not a consumer and he cannot avail the benefit of the provisions of C.P. Act and this Forum has no jurisdiction to try the subject matter of this complaint. It is further contended that, the company has intended to stop the manufacturing of mobile phones and other products and thereby, it started withdrawing local service center, there is main service center at Delhi. It will provide free service of phone within warranty period, there was no agreement in between them with complainant for to re-purchase those mobiles, if they withdrawn the service center at Raichur and there was no agreement in between them to provide local service center at Raichur. Hence there is no question of committing deficiency in service and prayed for to dismiss the complaint among other grounds.
4. In-view of the pleadings of the parties. Now the points that arise for our consideration and determination are that:
1. Whether the complainant proves that, 133 units of mobile stock supplied by opposite Nos. 3 & 4 manufactured by opposite Nos. 1 & 2 became non saleable in the market at Raichur due to sudden withdrawal service center and non providing alternative service center at Raichur and stopping of production of mobile sets opposites have shown their negligence in taking back the products due to non availability at service center at Raichur and thereby they have adopted unfair trade practice and found guilty under deficiency in their services.?
2. Whether complainant is entitled for the reliefs as prayed in his complaint.?
3. What order?
5. Our findings on the above points are as under:-
(1) In the affirmative
(2) As discussed in the body of this judgement and as noted in the final order.
(3) In-view of the findings on Point Nos. 1 & 2, we proceed
to pass the final order for the following :
REASONS
POINT NO.1 :-
6. To prove the facts involved in these two points, affidavit-evidence of complainant was filed, he was noted as PW-1. The documents Ex.P-1 to Ex.P-15 are marked. Affidavit-evidence of one Khalid Husain Proprietor of mobile servicing center of opposites was filed, who is noted as PW-2. Totally documents Ex.P-1 to Ex.P-15 are marked. On the other hand, affidavit-evidence opposite No-3 was filed, who is noted as RW-1. Counter affidavits to evidence of PWs- 1 & 2 filed. No documents filed and marked.
7. Keeping in view of the pleadings and evidences of parties, we are of the view that, the following facts are undisputed facts between the parties are:-
1. Complainant is the distributor of mobile phones manufactured by opposite Nos. 1 & 2, supplied by opposite Nos. 3 & 4 since 2006.
2. In view of the distributorship as an agent of opposite complainant stocked mobile sets of 133 worth of Rs. 3,00,350/- as on the date of complaint.
3. It is also undisputed fact that, opposites have stopped manufacturing their mobile sets and also withdrawn the mobile service centers in various places in India and also not provided service center at Raichur.
8. In the light of these undisputed facts, now let us examine the points raised by the parties in this case.
9. The first point that was stressed by the learned advocate for opposite at the time of arguments that, complainant is not a consumer and purchase of mobiles by him from the opposites is for to run his business. It is for commercial purposes, as such complainant is not a consumer and thereby this Forum has no jurisdiction to try this case.
10. In support of this contention, he referred the documents of complainant pertaining to the transactions made by the opposites with some of the rulings reported in:
(1) 2003 IV CPJ 149 and (2) 2004 NCJ NC.
But he is not produced such rulings till this date for our reference. However, the learned advocate for complainant submitted before us that, he is an agent of opposite company to sell mobiles, he is doing his business not for commercial purposes, it is for his livelihood. Hence, the complainant is a consumer and this Forum has got jurisdiction to try the subject matter of this complaint.
11. In support of this arguments he relied on rulings:
(1) II (2008) CPJ 177 NC
S.Kumar Com Ltd., V/s. Amarendra Raighur.
(2) III 2008 CPJ 205 (NC)
BSNL V/s. Yogesh Chandra Sexna and
(3) I 2007 CPJ 140 (NC)
Singh Engineering Works V/s. S.K. Blue Metal Works.
12. On perusal of the pleadings, evidences, and documentary evidences produced by the complainant with the principles of the rulings referred above, we are of the view that, the complainant is an agent of mobiles manufactured by opposite Nos. 1 & 2 supplied by 3 & 4 for his livelihood, we cannot find the said transaction as it is a commercial transaction or it is a commercial business by virtue of statistics produced by the complainant regarding the sell of mobiles in previous years. Hence we have not agreed with the submissions made by the learned advocate for opposite No-4 in this regard and we are of the view that, the complainant is a consumer in respect to the transaction noted in his complaint and he can raise consumer dispute and this Forum has jurisdiction to try the subject matter of this complaint.
13. The second point which is a material point for opposite to say that, this complaint is not maintainable as there was no agreement in between the opposites and complainant regarding the repurchase of those mobile sets for non providing fresh service centers at Raichur or withdrawal of other service centers in India. Further, it is submitted that there is a main service center at Delhi.
14. We are of the view that, this contention of the opposite No-4 is not acceptable for the reasons that, how the complainant has to sell the products of opposites without service center at Raichur. The affidavit-evidence of PW-2 goes to show that, he closed the service center because of non co-operation by the opposites. Whatever may be reasons for closing his service center at Raichur, it is the duty of the opposites to provide alternative service center at Raichur, because it is not possible for the complainant to sell his mobiles.. Mere stopping the production of mobile sets and withdrawing all service centers will not absolve its duty of opposites towards its customers. Warranty period is not a question to consider in these circumstances of this case. Warranty period will starts only from the date of purchase by each mobile set by the customers. Hence there is no ground to the opposites to say that a separate agreement is not in between opposites and complainant in this regard. Hence we have not accepted this contention also.
15. By going through all the facts noted in the complaint, in written version of opposite No-4 and their respective evidences, we are of the view that, opposites are not justified in rejecting the request of the complainant. The learned advocate for opposites have referred some rulings which are not produced before us for our reference. Keeping in view of the above facts and circumstances of this case, we are of the view that, the complainant has proved the deficiency in service and unfair trade practice adopted by the opposites, accordingly Point No-1 answered.
16. It is a fact that, the complainant is in possession of 133 mobile sets of various models worth of Rs. 3,00,350/-. In view of finding on Point No-1, opposites shall take back all the 133 mobile sets as noted in Page No 2 & 3 and pay the amount of Rs. 3,00,350/- to the complainant which is the cost of those mobiles. The complainant is entitled to get an amount of Rs. 3,000/- towards deficiency in service and he is entitled to get an amount of Rs. 2,000/- towards cost of this litigation.
Hence the complainant is totally entitled to get an amount of Rs. 3,05,350/- and also he entitled to recover future interest at the rate of 9% p.a. on total sum of Rs. 3,05,350/- from the date of this complaint till realization of the full amount, accordingly we answered Point Nos. 1 & 2.
POINT NO.3:-
17. In view of our findings on Point Nos-1 & 2, we proceed to pass the following order:
ORDER
The complaint filed by the complainant is partly allowed with cost.
The complainant is entitled to recover a total amount of Rs. 3,05,350/- from opposite Nos. 1 to 4 jointly and severaly and he shall return all the 133 mobile sets of various types to opposites.
The complainant is also entitled to recover future interest at the rate of 9% p.a. on the above total sum of Rs. 3,05,350/- from the date of the complaint till realization of the full amount.
Opposites are hereby granted one month time from the date of this judgment to make the payment of Rs. 3,05,350/- to the complainant and take back all the 133 mobile sets of various types from him.
Intimate the parties accordingly.
(Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 21-12-11)
Smt.Gururaj, Sri. Pampapathi,
Member. President,
Dist.Forum-Raichur. Dist-Forum-Raichur.
