Karnataka

Bangalore 4th Additional

CC/15/1100

Suresh Kumar - Complainant(s)

Versus

Spice Mobile Ltd - Opp.Party(s)

Suresh Kumar

30 May 2018

ORDER

Complaint filed on: 06.06.2015

                     Disposed on: 30.05.2018

 

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.1100/2015

DATED THIS THE30^thMAY OF2018

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

	Complainant/s	V/s	Opposite party/s
	Suresh Kumar, S/o Shanmugam, Aged about 31 years, R/at No.2, 9th Cross, Magadi Road, Manjunatha Nagar, Prasanna Theatre Backside, Bangalore-23.   In person	1	Spice Mobile Ltd., S.Global Knowledge Park, 19A & 19B, Sector-125, Noida-201301   By.Adv.Raju Gupta
		2	HOME SHOP 18, 7th Floor, FC-24, Sector-16A Film City, Noida-201301-UP   By Adv.MohumedSadiqh

 

PRESIDENT: SRI.S.L.PATIL

1.       This complaint has been filed by the complainant as against the Opposite Parties directing topay Rs.5499/- towards cost of mobile along with interest at 9% p.a. from the date of payment till realization, to pay Rs.50,000/- as compensation towards deficiency of service, to pay Rs.5,000/- towards cost of legal and Misc., expenses.

2.       The brief facts of the case of the complainant are that the Complainant has seen the Home Shop 18 Online on Internet Google and he ordered for Spice Mobile Android Phone M I 506 Mobile IMEI No.9113132536305408 on 18.11.2014 for an amount of Rs.5,499/- and sub order No.92946527. He received the handset and after one week, there was a problem in the handset i.e., software problem. Hence, he was given a complaint to the Opposite Party. Then Opposite Party told him to contact service centre for necessary repair. He also given complaint to spice & online dt.12.3.2015 CNT No.503157048, there is a complaint in software problem. He approached service centre which is on Do.No.1038, Dr.Rajkumar Road, 9^th Block, Rajajinagar next to Honda Showroom, Bangalore-10. They are not responding to the problem which is in mobile.  He also sent notice to the Home Shop 18 dt.20.4.2015 to Spice Company and Home Shop 18 online. Hence, this complaint.

3.       Notices were ordered issued to the Opposite Parties. Though the 1^st Opposite Party did appear, but did not file version. The 2^nd Opposite Party filed version denying the alleged deficiency of service.

4.       The sum and substance of the version filed by the 2^ndOpposite Party are that the role of this Opposite Party is restricted to receiving the order and delivering it on time, as it does not sell goods on behalf of the seller, but only provides a marketing platform or portal to the sellers for displaying and selling their products. It is also stated that the complaint filed by the Complainant is suffered from non-joinder of necessary party as the Complainant has not impleaded the authorized service centre of the 1^st Opposite Party to whom the Complainant admittedly went for rectification of the defect in the product. In the absence of aforesaid authorized service centre, the proper adjudication of complaint is not possible. Further, there is no any action as against the 2^nd Opposite Party.In this context, prays for dismissal of the complaint.

5.       The Complainant to substantiate his case filed his affidavit evidence and got marked Ex-A1 to A5.  The authorized representative of the 2^nd Opposite Party filed affidavit and got marked Ex-B1 to B3.  Both parties have not filed any written arguments.

          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. During the course of the arguments, the learned counsel for the Opposite Party No.2 submits that the service centre is not made as a necessary party to know the alleged manufacturing defect if any as alleged by the Complainant. In this context, we place reliance on the documents produced by the Complainant at Ex-A1 to A5 wherein we do not find any of the documents relating to the alleged manufacturing defect if any as alleged by the Complainant. As rightly pointed out by the Opposite Party No.2, the service center is not made as a party to whom the Complainant said to have been approached. No job card is placed before this Forum to know what kind of manufacturing defect found place in the said mobile handset. In the absence of it, it is unsafe to arrive at conclusion that there is a manufacturing defect in the said mobile handset. Hence, we found there is a considerable force in the arguments advanced by the learned counsel for the 2^nd Opposite Party. 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 laxity/deficiency of service on the part of the Opposite Party.  

 

9.       Looking to the available material on records, the Complainant surrendered the said mobile handset before this Forum on 29.11.2016 by filing a memo. Hence, the office is ordered to return the said handset to the Complainant with proper identification. Accordingly, we answer the Point No.1 in the negative.

10.     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 30^thMay 2018).

 

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

 

 

 

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

Suresh Kumar., who being the Complainant was examined.

 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1	Complaints against purchase of Spice Dual SIM
Ex-A2	Speed post received
Ex-A3	Retail invoice
Ex-A4	Spice acknowledging the letter
Ex-A5	Memo of submitting before the forum

 

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

 

Aditi Mittal.,who being the Opposite Party No.2 was examined.

 

Copies of Documents produced on behalf of Opposite Party

 

 

Anx-B1	Copy of the terms of use of TV 18 Home shopping Network Ltd.,
Anx-B2	Copy of the retail invoice
Anx-B3	Copy of warranty card

 

 

(ROOPA.N.R) MEMBER

(S.L.PATIL) PRESIDENT