Karnataka

Bangalore 4th Additional

CC/15/1249

Sri. Shiva Kumar, - Complainant(s)

Versus

Sangeetha Mobiles Private Limited - Opp.Party(s)

Sri. T.S.Vijaya Kumar

31 May 2018

ORDER

Complaint filed on: 02.07.2015

                     Disposed on: 31.05.2018

 

BEFORE THE IV ADDL DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM, BENGALURU

 1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H.ROAD, SHANTHINAGAR, BENGALURU – 560 027    

 

 

CC.No.1249/2015

DATED THIS THE31^stMAY OF2018

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

	Complainant/s	V/s	Opposite party/s
	Shiva Kumar, S/o Sri.S.P.Thippeswamy, DSK Enterprises, No.186/1, J.C.Complex, Sirur Park Road, Seshadripuram, Bangalore-560 020.   By Adv.Sri.T.S.Vijayakumar	1	Sangeetha Mobiles Private Limited., Having its Reg.Office at No.1183, 22nd A Cross, Banashankari 2nd Stage, Bangalore-560 070. Rep by its Authorized Signatory
		2	Sangeetha Mobiles Private Limited., No.186/9, Veena Mansion, NatakaRathnaGubbiVeeranna Road, Seshadripuram, Bangalore-20 Rep by its Authorized Signatory   By Adv.S.N.Madhu

 

PRESIDENT: SRI.S.L.PATIL

1.       This complaint has been filed by the complainant as against the Opposite Parties directing torefund Rs.16,623.74/- along with interest at 18% p.a. or replace the new mobile handset, to pay compensation of Rs.50,000/- towards loss, damage, waste of time, mental agony, hardship, inconvenience, damage to reputation, to pay cost of legal expenditure.

2.       The brief facts of the case of the complainant are thathe has purchased the WS-47-2.1 WHAM Handset from the 2^nd Opposite Party wherein the 1^st Opposite Party being the head office, Model No.WS-47-2.1 WHAM 911322400000986 on 5.7.2014, the total cost of the said handset a sum of Rs.16,623.74/- vide invoice No.SI/SDP/1764 dt.5.7.2014 and the Opposite Party had given warranty for a period of one year from the date of purchase i.e., from 5.7.2014 to 4.7.2015. The Complainant submits that at the time of purchase of the above handset, he had Samsung handset and the 2^nd Opposite Party had informed the Complainant that if the said Samsung handset given for exchange, they will adjust the value of the said handset to the new handset and accordingly, they valued to the said Samsung handset a sum of Rs.10,000/- and informed the Complainant that if he paid the remaining a sum of s.6,623.74/- they will going to handover the new handset and the 2^nd Opposite Party had informed the Complainant that the WHAM handset is their own brand of Sangeetha Mobiles Private Limited., and it is very good mobile compared to any other branded companies mobile handsets. After hearing the wordings of the 2^nd Opposite Party, had ventured to replace/exchange his Samsung handset and to buy the disputed handset and as on the day, the 2^nd Opposite Party had valued the Complainant’s Samsung handset at Rs.10,000/-, thereafter the Complainant purchased the disputed handset by paying the remaining amount on total cost. The Complainant submits that the 2^nd Opposite Party while raising the invoice, the Complainant had insisted to mention and less the cost of his Samsung handset in the said invoice, but the 2^nd Opposite Party had informed the Complainant stating that the disputed handset is their own brand don’t underestimate them and it will not cause any hurdle in all aspects. After purchasing the said WHAM handset from the 2^nd Opposite Party, the Complainant had used it only till November 2014, thereafter the display of the said handset suddenly not working and sometimes, it got switched off, on the said complaint, the Complainant had approached the 2^nd Opposite Party, as the handset still under warranty period and the 2^nd Opposite Party informed the Complainant that the display of the said handset was damaged, if the Complainant will show the original bill, they will send to their service center and again they informed the Complainant that they will going to refund only a sum of Rs.3,311/- against Rs.16,623.74/- and the 2^nd Opposite Party offered the Complainant to purchase any other handset they will deduct only a sum of Rs.3,311/- on total cost of the new handset, but the Complainant refused to accept the offer of the 2^nd Opposite Party, since the Complainant had paid Rs.16,623.74/- as per the assurance given by the 2^nd Opposite Party at the time of purchase, but the 2^nd Opposite Party declined to accept the same and not ready to set right the said handset in all aspects. As such the Opposite Parties failed to set right the issue and it causes deficiency of service. The Complainant submits that “Sangeeta Mobiles Private Limited” caption says that “Pioneer Then, Leader Now”, but in the case of the Complainant’s dispute the Opposite Parties are not up to the mark as per the caption. Since the 2^nd Opposite Party called the Complainant, but did not repair the handset as per warranty, hence the Complainant decided to take legal action against the Opposite Parties, accordingly on 2.1.2015 a legal notice has been issued to the Opposite Parties and called upon to set right the issue within one week from the date of receipt of the legal notice, failing which, the Complainant will no other option but to approach the jurisdictional forum for redressal of his grievance, for having cause deficiency of service for not repairing his defective mobile cell phone or replacing it within warranty period and to pay compensation of Rs.50,000/- to the Complainant towards mental agony and hardship for causing him deficiency of service to him, in those circumstances, the Opposite Parties will be held responsible for all costs and consequences. Though the Opposite Parties received the said notice, they have issued an evasive reply.  The Opposite Party had harassed the Complainant to the maximum extent, the Complainant was driven from pillar to post, the Complainant was driven on several occasions by the Opposite Parties making false promises and despite all the promises Opposite Party did not replace the handset nor repair the same and hence, the Complainant is constrained to file this complaint.

3.       Notices were ordered issued to the Opposite Parties. The Opposite Parties did appear and filed the common version denying the alleged deficiency of service.

4.       The sum and substance of the version filed by the Opposite Parties 1 and 2 are that the complaint filed by the Complainant is not maintainable either in law or on facts. The Opposite Parties submits that M/s Sangeetha Mobiles Pvt. Ltd., is a private limited company dealing in sales of various kinds of mobile handsets of various manufacturers through its network of 300+ outlets situated across Karnataka, Tamilnadu, Telengana, Andhrapradesh, Delhi, Pondicherry and Uttar Pradesh. The Complainant has purchased WS-47-2.1 WHAM mobile handset of M/s Wham Mobiles who is not erred as a party even though it is a necessary party in deciding the matter on 5.7.2014 bearing IMEI No.911322400000986 and availed the discount from this Opposite Party’s one of the outlet situated at No.186/9, Veena mansion, NatakaRathnaGubbiVeeranna Road, Seshadripuram, Bangalore-20 i.e.the 2^nd Opposite Party.  Further, theOpposite Party is only doing the role as a facilitator and the Opposite Party is permitted only to sell the mobile sets without opening the seal of the sealed container box as a retailer including the WHAM mobile handsets manufactured by M/s Wham mobiles who is not erred as a party in the complaint even though it is a necessary party as it is the manufacturer of the mobile set and hence, the said M/s Wham mobiles is only responsible for all the defects arisen out of the mobile set and this Opposite Party is not the manufacturer of the mobile set. This is clearly mentioned in the manual book as well as in the invoice given by the Opposite Party at the time of sale of mobile set to the Complainant. The Opposite Parties 1 and 2 submits that eventually they have taken due care of the Complainant after purchase of the mobile set from the Opposite Party even though all the above conditions are applicable, but after the Complainant approached the Opposite Party and asked for redressal of his grievances and asked for refund of the amount at that time the Opposite Party looking into the Complainant’s grievance agreed to refund Rs.3,311/- for the mobile set after calculation the amount on the mobile set which costed about Rs.6,623.74 + VAT but the Complainant is insisting on the discount allowed also which is not fair and it cannot be allowed as this Opposite Party as received only Rs.6,623.74 + VAT and this is the fact also, further looking into above aspects, the Opposite Party has taken atmostcare in attending to the Complainant and there is no deficiency of service on the part of the Opposite Party rendered to the Complainant and this facts has already been made clear to the Complainant in the reply notice issued to the Complainant for the notice issued by him. The Opposite Parties 1 and 2 submits that infact the Complainant has not produced any evidence or expert opinion to show that the mobile set is malfunctioning due to manufacturing defects or for any other reasons including deficiency of service of the Opposite Party and anyhow without any prejudice to this Forum it can be said that the allegations one alleged in the complaint shows that the mobile set is not working due to manufacturing defects and no allegations has been leveled against the Opposite Party and hence as there is no deficiency of service rendered to the Complainant. The complaint is bad in law for non-joinder of necessary party to the complaint i.e. the manufacturer of the mobile set and hence the complaint cannot be entertained. On this ground and other grounds prays for dismissal of the complaint.

5.       The Complainant to substantiate his case filed his affidavit evidence. Though the documents produced, but did not got marked.  The authorized representative of the 1^stOpposite Party filed affidavit, but the documents has not produced.The Complainant has filed written arguments, but the Opposite Parties have not filed any written arguments. Heard the learned counsel for the Complainant.

          6.       The points that arise for our consideration are:

          1) Whether the complainant proves the deficiency in service on the 

part of the OPs, if so, whether he is entitled for the relief sought  

for?

 

          2) What Order?

 

          7.Our answers to the above points are as under:

 

Point No.1 : Negative

Point No.2 : As per the final order for the following

 

 

 

REASONS

          8. POINT NO.1:    We have briefly stated the contents of the complaint as well as the version filed by the Opposite Party. According to the case of the Complainant, after purchasing the said WS-47-2.1 WHAM mobile handset (hereinafter referred as the said mobile handset) from the 2^nd Opposite Part, he used it only till November 2014. Thereafter, the display of the said handset suddenly not working and sometimes, it got switched off. In this context, he approached the 2^nd Opposite Party who informed the Complainant thatthe display of the said handset was damaged, if the Complainant will show the original bill, they will send to their service center and again they informed the Complainant that they are going to refund only a sum of Rs.3,311/- against Rs.16,623.74/- and the 2^nd Opposite Party offered the Complainant to purchase any other handset, they will deduct only a sum of Rs.3,311/- on the total cost of the new handset, but the Complainant refused to accept the offer of the 2^nd Opposite Party, since the Complainant had paid Rs.16,623.74/- as per the assurance given by the 2^nd Opposite Party at the time of purchase, but the 2^nd Opposite Party declined to accept the same and not ready to set right the said handset. As to know the manufacturing defect if any in the said mobile handset, the Complainant has not produced the job sheet. If the Complainant has produced the job sheet, if the Opposite Party denied to attend the said repairs, then this Forum would have issued the proper directions in respect of carrying out the necessary repairs. In the absence of job card and also in the absence of warranty period, it isunsafe to arrive at conclusion that mobile handset suffering from manufacturing defect. In this context, he place reliance on the two decisions reported in I (2011) CPJ 254 (NC) in the case of Kamala Kishore V/s Electronics Corporation of India Ltd., &Anr.wherein it is held as under;

Revision Petition No.3092 of 2010 from Order dt.9.7.2010 in Appeal No.600 of 1994 of State Commission, Lucknow, UP-Decided on 17.1.2011

Consumer Protection Act, 1986-Sections 2 (1)(g), 21(b)-goods-Television-Defective-Warranty-Alleged deficiency of service-District Forum allowed complaint-State Commission allowed appeal-Hence revision-No written request to get TV set attended during warranty period-Also no credible evidence produced for any inherent defect-Order of For a below upheld.

2) The order passed in R.P.No.3973/2012 by NCDRC, New Delhi in the case of Sukhvinder Singh V/s Classic Automobile and another wherein at Page-4 concluding Para-6 held as under:

The District Forum has placed reliance only on the affidavit of the respondent. To our mind this much evidence is exiguous. The service history only reveals that there was overheating which defect was removed. The above said authorities hardly dovetail with the facts of this case. There is no evidence except P-4 that the vehicle became defective again. The above said judgments are not applicable to the present case. The observation made by the State Commission assumes important. The report of expert was essential or some other evidence showing manufacturing defect should have been adduced. The mere fact that the vehicle was taken to the service station for one or two times does not ipso fact prove the manufacturing defect. Due to lack of evidence, the value of the petitioner’s case evanesces.

Both the revision petitions are ill-founded and therefore, the same are dismissed in limini.

In the light of the decision cited supra, we come to the conclusion that the Complainant is utterly failed to prove the alleged manufacturing defect. Hence, we do not find any deficiency of service on the part of the Opposite Parties.   Accordingly, we answer the Point No.1 in the negative.

9.       POINT NO.2: In the result, we proceed to pass the following:

 

 

ORDER

        The complaint filed by the Complainant is hereby dismissed.

Looking into the circumstances of the case, we direct both the parties to bear their own costs.

This office is ordered to return the said handset to the Complainant with proper identification. 

Supply free copy of this order to both the parties.

          (Dictated to the Stenographer, got it transcribed, typed by her/him and corrected by me, then pronounced in the open forum on 31^stMay 2018).

 

(ROOPA.N.R)     MEMBER	(S.L.PATIL)  PRESIDENT

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

Shiva Kumar., who being the Complainant was examined. 

 

Copies of Documents produced on behalf of Complainant/s:

 

Doc-1	Original Invoice dt.5.7.2014
Doc-2	Legal notice dt.2.1.2015
Doc-3	Reply dt.18.1.2015

 

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

 

Prathima, Manager Customer Support and authorized representative.,who being the Opposite Party-1 was examined.

 

Copies of Documents produced on behalf of Opposite Party

 

		NIL
	(ROOPA.N.R) MEMBER		(S.L.PATIL) PRESIDENT