BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 27th day of July 2018
Filed on : 07-07-2016
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No.397/2016
Between
Jishin T.J., : Complainant
S/o.Joseph T.P., Amalgam house, (By Adv. Nithin Kumar K.B.,
Bristow Road, Willington Island, N. Paravur)
Kochi-682 003.
And
1. Motorola Mobility India Pvt. Ltd., : Opposite parties
415/2, Mehruauli, Gurgaon, (parties-in-person)
Roadsector 14,
Gurgaon-122 001,
Haryana rep. by its
Managing Director.
2. W.S. Retail Services Pvt. Ltd.,
Ozone Manay tech Park No. 56/18,
B. Block, 9th Floor, Gurvebhavipaly,
Hosur road, Bangaloor-560 068,
Karnataka, rep. by its
Managing Director.
3. ADR Technologies,
1st floor, DD Jn. Building,
M.G. Road, Near Shenoy's,
Pin-682 035,
rep. by its Service Manager.
O R D E R
Cherian K. Kuriakose, President.
1. Complainant’s case
2. The complainant purchased a “Motorola Moto 360 Smart watch” for an amount of Rs. 12,999/- from the 2nd opposite party M/s. W.S retail services pvt. Ltd. , Bangalore through the online marketing system by name Flipcart on 08-05-2015. He received the product on 12-05-2015 as per the retail invoice bill. Within a short period of purchase the said watch got damaged due to its manufacturing defects. The opposite party had supplied a watch to the complainant having manufacturing defects. The main defects are over heating and fast draining of battery charge, therefore, it was not in a condition to wear on the hand. The heat that came out from the watch so immense and the watch became a source of nuisance. The complainant approached the authorized service centre, who is 3rd opposite party in the complaint and they submitted it before the 2nd opposite party, on 26-08-2015. The complainant was able to use the watch only for 3 months. At the time of entrusting the watch to the 3rd opposite party there was no external damages on the watch. However, when the complainant approached the 3rd opposite party for getting the watch back the 3rd opposite party informed that the defects were not cured . Repeated visits made by the complainant to get back the repaired watch went in vain. The dilatory tactics of the opposite parties in not getting the watch repaired is deficiency in service . the external damage caused to the watch was due to the careless handling of the watch by the 3rd opposite party. The 2nd opposite party is holding the watch even now. The opposite parties are jointly and severally liable for the damage caused to the watch the opposite parties are liable to compensate the complainant, in addition to the reimbursement of the amount paid towards the price of the watch. Hence the complaint.
3. Notice was issued to the opposite parties. The 2nd opposite party appeared and resisted the complaint by filing a version. The 3rd opposite party did not file version despite appearance. The 1st opposite party appeared but no version was filed.
4. Version of the 2nd opposite party
In the version, 2nd opposite party contended that the complainant had suppressed true and material facts from the Forum and he had approached the Forum with unclean hands. The 2nd opposite party is only a dealer, who is selling the product manufactured by others. The product sold by the 2nd opposite party were not manufactured by themselves. The product sold by the 2nd opposites party to the complainant carried manufactures warranty. The manufacturer of the watch is the 1st opposite party. There is no cause of action against the 2nd opposite party. The complainant ought to have approached the manufacturer of service centre for resolving any defects on the watch purchased by the complainant. The opposite party No. 2 is not holding the watch as alleged. The 2nd opposite party did not collect the watch from the complainant for repairs. The 2nd opposite party did not sell any defective product to the complainant. The re-seller can not be held liable for the defects in goods. The complainant had not established any cause of action against the 2nd opposite party regarding any deficiency in service . The complaint is therefore sought to be dismissed as against the 2nd opposite party.
5. The evidence in this case consists of Exbts. A1 to A3 documents on the side of the complainant. The opposite parties did not adduce any evidence.
6. Following issues were settled for consideration.
i. Whether the complainant had proved that there was any
deficiency in service on the part of the opposite parties?
ii. Reliefs and costs
7. Issue No.i. Exbt. A1 dated 12-05-2016 is a letter addressed to the complainant by the 2nd opposite party acknowledging that the 2nd opposite party had entrusted with a Motorola Moto 360 Smart watch to the complainant on 12-05-2015. However it is seen from Exbt. A1 that the document is only one page out of a 2 paged document. The complainant had suppressed the 2nd page of the Exb t. A1. Exbt. A2 dated 08-05-2015 is the invoice drawn in favour of the complainant in furtherance of the order placed by the complainant on 08-05-2015 through M/s. Flipcart. Exbt. A3 is a job sheet issued by the 3rd opposite party to the complainant on 26-08-2015 for repairing on the grievance that the watch was overheating and there was draining out of charge also. From Exbt. A3 it is seen that the watch was submitted to the 3rd opposite party by the complainant. There are no other documents to support the case of the complainant that the watch was not repaired by the opposite parties and further that there was physical damage on the watch subsequently.
8. The 3rd opposite party to whom the watch was entrusted for repairs as per Exbt. A3 on 26-08-2015 did not respond to the notice issued to them. They also did not adduce any evidence. The complainant has not produced any proof affidavit to support his allegations regarding the physical damage caused to the watch at the hands of the 3rd opposite party. The complainant did not file any application to procure the watch from the 3rd opposite party to whom it was allegedly entrusted for repairs. The complainant did not prove by an expert evidence showing that the watch had manufacturing defects. Exbt. A3 is only an uncertified photo copy. The complainant did not produce the original acknowledgment of the product by the 3rd opposite party so far. In the above circumstances, we find that the complainant has not proved his case of the deficiency in service against the opposite party. The issue is therefore found against the complainant.
9. Issue No.ii. In the result, having found issue No. i against the complainant, we find that the complaint is liable to be dismissed and is accordingly dismissed.
Pronounced in the open Forum on this the 27th day of July 2018
Sd/-
Cherian K. Kuriakose, President.
Sd/-
Sheen Jose, Member.
Sd/-
Beena Kumari V.K., Member.
Forwarded/By Order,
Senior Superintendent.
Appendix
Complainant's Exhibits
Exbt. A1 : Copy of letter dt. 12-05-2015
A5 : Copy of retail invoice
dt. 08-05-2015
A3 : Copy of work order dt. 26-08-2015
Opposite party's exhibits: : Nil
Copy of order despatched on :
By Post: By Hand:
