Date of Filing:22/06/2017

Date of Order:09/01/2019

BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated: 9^th DAY OF JANUARY 2019

PRESENT

SRI.H.R. SRINIVAS, B.Sc., LL.B. (Rtd. Prl. District & Sessions Judge) And PRESIDENT

SRI D.SURESH, B.Com., LL.B., MEMBER

COMPLAINT NO.1666/2017

V/s

ORDER

BY SRI.H.R. SRINIVAS, PRESIDENT

1.  This is the complaint filed by the complainant against the Opposite Party (hereinafter referred to as O.P) under Section 12 of the Consumer Protection Act, 1986 praying this Forumto direct the O.P to pay the complainant a sum of Rs.50,000/-  being the loss incurred by the complainant  as damages for causing mental agony, physical inconvenience and further to pay a sum of Rs.2,000/- towards cost of the legal notice and Rs.5,000/- towards cost of this complaint and also to pay interest at the rate of 18% per annum as the transaction is of commercial one from 31.03.2017 till date of actual payment and other reliefs as this forum deems fit under circumstances of this complaint.

2.     The case of the complainant in brief is that: O.P.No.1 is the dealer having a showroom to sell the mobile handsets. O.P.No.2 is the manufacturer. On 31.03.2017 complainant visited OP.No.1 in order to purchase a mobile set. On the advice and recommendation of the OP.No.1, he purchased the mobile set manufactured by O.P.No.2 having Mobile MI Note 4, 32 GB GOLD-Xiaomi 864850032536883  for Rs.11,509/- and paid the same through cash for which O.P.No.1 has acknowledged.  At the time of the purchasing the handset, there was a small linear line. Having the doubt about the same, the complainant questioned OP.No.1 for which O.P.No.1 informed that it is a temporary line which do not cause any functional disorder to the mobile handset. After purchasing the same, while opening the same from the box, it fell from a short height and the said linear line became a crack. When the same was shown to O.P.No.1 and demanded for replacement of the same,O.P.No.1 took the same and asked the complainant to come after two days.  When he went to receive the same, he was informed that the O.P.No.2 the manufacturer, refused to replace the said mobile with a new one.  As per the invoice and conditions, OP.No.1 and 2 ought to have handover the new mobile handset if within 30 days of the purchase, any damage occurs to the mobile handset.  In view of the refusal by O.P.No.1 and 2 to replace the same with a new one, there is violation of them condition of the invoice and deficiency in service. Hence the complaint.

3.    Upon issuance of notice, O.P.No.1 appeared before the forum and filed its version contended that it is doing sales and service of different varieties of mobile handset and further admitted that the complainant purchased the mobile set manufactured by OP.No.2.  It has admitted that the mobile purchased by the complainant is covered with damage protection and price protection for 30 days from the date of purchase subject to the terms and conditions. The mobile set sold to the complainant was in good condition. The mobile set purchased from O.P.No.1 fell down from the hand of the complainant while he was leaving the shop and it was damaged. The complainant is only entitled for 50% of the cost of the mobile handset under damage protection scheme.  The terms and conditions of the damage protection is mentioned in the back of the invoice and brought to the notice of the complainant. The complainant with an object of making illegal claim has filed his false claim stating that it was having a linear line at the time of purchase. O.P.No.1 is not the dealer of the mobile handset but it is only selling the same.It at all there was a linear line in the mobile set, it is the manufacturing defect and O.P.No.2 is responsible for the same.    No expert opinion is produced to show that the mobile set was having a linear line at the time of purchase.  Since the mobile fell down from the hands of the complainant, it developed a big crack and hence it is a manufacturing defect and there is no deficiency in service on its part in not replacing the same with a new one. O.P.No.1 has denied all the allegations made against it and prayed to dismiss the complaint. 

4.     O.P.No.2 appearing through his advocate upon the service of notice has denied the allegations made in each and every para of the complaint. Further admitted that it is the manufacturer of the said set and the same was sold to the complainant through O.p.No.1 for Rs.11,509/-.  The complaint filed is on false, frivolous and concocted grounds. Complainant never approached O.PNo.2 with any of the issues.  He has only approached O.P.No.1.  Complainant himself has admitted that the said mobile handset fell from his hand and got damaged.  The physical damage caused to the product is not covered by the terms and conditions of the warranty. He ought to have paid the cost for repairing the damage. It is stated that the warranty issued is a limited warranty associated with the product, it mentioned therein that.

“This warranty does not cover the following cases:…

Any damage occurs in/on outer surface of the product, including but not limited to cracks, dents or scratches on the exterior case, screens, camera lenses, buttons and other attachments….”

5.     The exclusions of the warranty is clear and unambiguous. The crack occurred in the handset is due to fall which do not cover under the warranty.  Complainant has not produced any document to show that there was a linear line in the product.   There is no deficiency of service on its part.  The facts mentioned in the complaint are misleading and hence prayed the forum to dismiss the complaint.

6.     In order to prove the case, both the parties filed their affidavit evidence and Complainant has produced documents. Heard the arguments. The following points arise for our consideration:-

1)       Whether the complainant has proved

deficiency in service on the part of the

Opposite Parties?

2)      Whether the complainant is entitled to

the relief prayed for in the complaint?

7.     Our answers to the above points are:-

POINT NO.1:            In the Affirmative.

POINT NO.2:           Partly in the Affirmative

                                For the following.

REASONS

POINT No.1:-

8.    On perusing the evidence and documents, it becomes clear that O.P.No.2 is the manufacturer of mobile set Mobile MI Note 4, 32 GB GOLD-Xiaomi 864850032536883  for Rs.11,509/- sold to the complainant through O.P.No.1 . As per the invoice produced, the said handset was sold to the complainant for Rs.11,509/- including VAT on 31.03.2017. The conditions mentioned in the said cash invoice is that the “Smart phone, tablets in this invoice is covered under price protection and damage protection for 30 days. Not applicable for Apple, WHAM”. It is also mentioned there in that the “warranty whatsoever provided is by the manufacturer and not by Sangeetha Mobile Pvt. Ltd., The customer will not be eligible for price protection if customer does not have a valid email address”.  Apart from this, there is no mention regarding to which of the defects, the warranty is applicable and what act of the complainant the warranty excludes.     The say of O.P.No.2 in its version regarding providing price protection and damage protection has not been mentioned in the invoice produced by the complainant. Even the invoice said to contain the said conditions as mentioned by O.p.No.2 has not been produced.

9.    It is clearly admitted by O.P.No.1 that the said mobile handset after it sold to complainant fell from the hands of the complainant in the shop only and there was damage to the handset. When such being the case, it is the bounden duty of the O.P.No.1 as well as O.P.No.2 to provide the price protection as well as damage protection. The damage to the mobile handset happened the day on which and the time on which, the complainant purchased the mobile handset in O.P.No.1 shop only. In view of this, we are of the opinion that denying the price protection and not providing damage protection either by replacing the set with a new one or  refunding the amount, amounts to deficiency in service, unfair trade practice and against to the agreed terms and conditions mentioned in  the invoice. Hence we answer POINT NO.1 IN THE AFFIRMATIVE.

POINT No.2:

10.   In view of the same, the O.Ps are bound to either replace the mobile handset purchased by the complainant or refund the amount paid by the complainant.  As stated above, the cost of the mobile set is Rs.11,509/- including the cost of the paper bag and the VAT. The complainant has claimed refund of the purchase amount towards the loss incurred and also for damages for suffering mental agony and physical inconvenience.  Except getting his handset duly repaired at the earliest and in the alternative not getting the refund for the damaged set, the complainant has not produced any materials to show that on account of the same, he has suffered monetary loss of Rs.50,000/-. No proof regarding financial loss has been produced. It is true that due to the inaction of the O.Ps, the said material was not repaired and refund not given. In view of this Complainant put to mental harassment to a little extent. Hence, we are of the opinion that in the interest of justice it would be suffice if O.P.No.1 and 2 are ordered to refund Rs.10,900/- the cost of the mobile handset with interest at 12% per annum from 31.03.2017 till the entire amount is paid. Further if a sum of Rs.5,000/- towards mental harassment and Rs.3,000/- towards litigation expenses if ordered to be paid by O.P.No.1 and 2 to the complainant it would meet the ends of justice and we answer POINT NO.2 PARTLY IN THE AFFIRMATIVE and pass the following:-

ORDER

1. The Complaint is allowed in part with cost.

2. OP No.1 and 2 are hereby directed to refund Rs.10,900/- i.e. the cost of the mobile handset along with interest at 12% per annum from 31.03.2017 till the entire amount is paid to the complainant.

3. Further the OP No.1 and 2 are hereby directed to pay Rs.5,000/- towards compensation and Rs.3,000/- towards cost of the litigation expenses.

4.  The O.P No.1 and 2 are hereby directed to comply the above order at within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.

5. Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 9^th JANUARY 2019)

MEMBER                        PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

CW-1:Sri G.H.Ranganatha - Complainant.

Copies of Documents produced on behalf of Complainant/s:

Ex C1: Copy of the cash invoice dated 31.03.2017.

Ex C2: Copy of the Legal Notice dated 26.04.2017.

Ex.P3: Postal acknowledgements.

Ex.P4: Copy of Reply notice dated 07.05.2017.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: K.M. Siddalinga Prabhu store Manager of  OP.

Copies of Documents produced on behalf of Opposite Party/s

- Nil -

MEMBER                        PRESIDENT

A*