Karnataka

Bangalore 4th Additional

CC/964/2016

Mr.Mukund.P, - Complainant(s)

Versus

The Customer Service Manager Sangeetha Mobiles Pvt Ltd., - Opp.Party(s)

11 Oct 2018

ORDER

Complaint filed on: 08.07.2016

                     Disposed on: 11.10.2018

 

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.964/2016

DATED THIS THE 11^th OCTOBER OF 2018

PRESENT

 

 

SRI.S.L.PATIL, PRESIDENT

SMT.N.R.ROOPA, MEMBER

 

	Complainant/s	V/s	Opposite party/s
	Mukund.P., Aged 33 years, Advocate, No.23/1, Ground Floor, J.A.Building, 1st Main Road, Seshadripuram, Bangalore-560 020.   In person	1	The Customer Service Manager, Sangeetha Mobiles Private Limited., No.1183, 22nd A Cross, Banashankari 2nd Stage, Bangalore-560 070. Rep by its Manager
		2	The Branch Manager, Sangeetha Mobiles Pvt. Ltd., No.186/9, Veena Mansion, Nataka Rathna Gubbi Veeranna Road, Seshadripuram, Bangalore-560 020. Rep by its Branch Manager
		3	The Customer Service Manager, Onsite Electro Services Pvt. Ltd., No.50/2370, Vijaydeep CHS, Gandhi Nagar, Opp. MIG Club, Bandra East Mumbai-400 051. Rep by its Manager.
		4	Wham infocom private limited., No.37, Srinivasa Nilaya, Sannidhi Road, Basavanagudi, Bengaluru-560 004. Rep by its Manager.   By.Adv.S.N.Madhu-OP-2

 

PRESIDENT: SRI.S.L.PATIL

1.       This complaint has been filed by the complainant as against the Opposite Parties directing to refund the mobile phone amount of Rs.6992/-, to pay the damages/compensation of Rs.50,000/- for the defective of service, the loss, hardship, injury and mental agony, to pay costs and legal notice and to pass such other orders.

2.       The brief facts of the case of the complainant are that he is professionally advocate and practicing last several years. Due to his profession and personal needs, he had purchased a mobile phone (WS-47 Wham) from the OP-2 outlet/shop Sangeetha Mobiles Pvt. Ltd., Bangalore on 28.6.2014 original invoice No.SI/SDP/1574. The complainant submits that since from purchased, there was some problem in that mobile phone and reported same to OP-2. On his report, OP-3 person had come to his office and picked-up mobile phone, original invoice and his insurance claim on 16.9.2014 and he has issued carbon copy of the onsite job sheet bearing No.97386/ onsite No.125950 and assured that the repair will done at the earliest and atleast by 15 day from that day.  After he has not received any response from Ops 2 and 3 and repeated enquiry made to Ops 2 and 3, have been given lame excuses, but unfortunately Ops 2 and 3 have failed to return mobile phone after repair it. This has also affected his work and hence compelled sent the email to Ops 2 and 3 on 19.1.2015. The complainant states that they would understand urgency of the matter and respond to it affirmatively and get his mobile phone repaired and delivered earliest and also process insurance claim for the expenses. The email was duly served on Ops 2 and 3. After received the E-mail, OP-2 sent the reply email on 20.1.2015 stating that his mobile phone is ready come and collect their outlet shop Malleshwaram. As per the email visited the Malleshwaram store and met with one Mr.Swamy, he told that he did not received any mobile phone and instruct that visit OP-2, Sheshadripuram store and meet with Mr.Lokesh. As per instruction, visited store and met with Mr.Lokesh and asked about mobile phone, he shown its same condition not repaired. The complainant was shocked and astonished by OP-2 attitude and words and was deeply hurt because of nature of extortion by OP-2 as well as the manner treated by him in the store. After sending second email on 10.4.2015 to Ops 2 and 3 and explained regarding above said incident, but Ops 2 and 3 are even after received the second email did not reply for the same. The complainant submits that orally brought this issue to the notice of the OP-1, but OP-1 had not responded for the same. The OPs 2 and 3 are collected mobile phone (WS-47 Wham) from him for repairer purposes and claim insurance, but till today not repaired and not returned to him and Ops 2 and 3 are not response properly and when he visited OP-2 shop, he was treated scold badly and had caused mental agony to the complainant. The OP-1 being a reputed company has not followed due diligence and is directly responsible for the conduct of the Ops 2 and 3 in selling the product and service of general public. Further submits that he got issued a notice dt.23.3.2016 calling upon the OPs to refund the handset/mobile phone amount of Rs.6,992/- and pay the compensation of Rs.50,000/-. The legal notice was duly served on Ops 1 to 3, returned for the reason left the address. Even after receiving the notice, the Ops 1 and 2 are through his advocate issued a reply notice dt.11.4.2016 giving untenable and false reasons, but failed to refund amount. The OPs are collected mobile phone (WS-47 Wham) for repairer purposes and claim insurance, but till today not repaired and not returned and not refund the amount.  The OP-1 being a reputed company has not followed due diligence and is directly responsible for the conduct of the Ops 2 and 3 in defective of service. The OPs are now liable to him for the total sum of Rs.11,992/-. Hence, the complainant submits to allow the complaint.

3.       Notices were ordered issued to the Opposite Parties. In response to the notice, the OP-2 did appear and filed the version. The OP-1 though notice served, did not appear, hence placed exparte. Since no steps was taken against the OP-3, hence, claim against the OP-3 was dismissed on 14.6.2017.

4.       The sum and substance of the version filed by the Opposite Party No.2 are that the complaint filed by the complainant is not maintainable either in law or on facts. The OP-2 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.  The OP-2 submits that at first the complainant has purchased WS-47 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 28.6.2014. Further, the OP is only doing the role as a facilitator and the OP is permitted only to sell the mobile sets without opening the seal of the sealed container box as a retailer including the WHAM mobile hands 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 the OP 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 OP at the time of sale of the mobile set to the complainant. Eventually the OP has taken due care of the complainant after purchase of the mobile set from the OP even though all the above conditions are applicable, immediately after the complainant reported about malfunctioning/faults to be in the mobile set, the OP has asked and requested the complainant to go to the authorized service centre of the manufacturer of the mobile set but whether the complainant had gone to the authorized service centre or not is not within the knowledge of the OP and further if the complainant had went to the authorized service centre of the manufacturer of the mobile set it would have rectified with the defects to be in the mobile set and then also if the complainant’s mobile set defects would have persisted then also the OP is not responsible for the same only the manufacturer of the mobile set and its authorized service centre would have responsible for the same and not the OP as erred in the complaint and as such, the OP has not given any deficiency in service to the complainant as stated to in the complaint 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. 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 this OP 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 OP and hence as there is no deficiency of service rendered to the complainant by this OP at  any point of time, there is no cause of action arise against this OP to file the complaint. The complaint is bad in law for non-joinder of necessary party to the complaint i.e., the manufacturer of the mobile set and its authorized service centre hence the complaint cannot be entertained and has to be dismissed.  On this ground and other grounds prays for dismissal of the complaint.

4(a)    The complainant has filed an application under Order 1 Rule 10 (2) of CPC to add the manufacturer. The same was came to be dismissed by vide order dt.11.10.2018.

5. The Complainant to substantiate his case, has filed his affidavit evidence and got marked as Ex-A1 to A7. The Complainant has filed written arguments. Heard. 

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 : Affirmative

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-2. Though notice was served on the OP-1, did not appear, hence placed exparte. The claim against the OP-3 was dismissed as the steps was not taken. The OP-2 has taken the specific contention stating that it is only doing the role as a facilitator and it is permitted only to sell the mobile sets without opening the seal of the sealed container box as a retailer including the said mobile hands manufactured by M/s Wham Mobiles. Further submits that there is no any expert opinion to show that the said mobile handset is not functioning due to the manufacturing defect or any other reason including deficiency of service on the part of the OP-2.  

          9.       We have gone through the contents of the complaint wherein the complainant never whispered a single word stating that the said mobile handset is suffering from manufacturing defect. The problem of the said mobile was found within the warranty period. In this context, the complainant has informed the OP-2 who being the seller to rectify the mistake. In this context, the complainant has produced the job sheet found at Anx-B marked at Ex-A2 wherein the problem shows are display problem, batter problem, USB not working. It appears that these are to be attended by the service centre and nothing more than that. Though the complainant requested many times and handed over the mobile handset to the service centre, did not respond. But by one or the other pretext, they have postponed the same. On the repeated requests, an email was sent by the complainant to the Ops 2 and 3.   The OP-2 sent the reply email on 20.1.2015 to the complainant. As per the email, he visited the Malleshwaram store and met with one Mr.Swamy, he told that he did not receive any mobile phone and instruct that visit OP-2 and wherein he met with Mr.Lokesh. As per instruction, visited store and met with Mr.Lokesh and asked about mobile phone, which shows the said mobile handset in the same condition without any repair. Again he sent E-mail dt.10.4.2015 to the Ops 2 and 3 explaining regarding the said incident, but Ops 2 and 3 are never received the second email did not reply for the same which can be seen ongoing through the contents of Ex-A5. The complainant has no other go except to issue notice to the Ops 1 to 3 marked as Ex-A6. Inspite of it, there was no any response.

          10.     In our considered view, the mobile was found to be some problem within the warranty period. Under such circumstances, even in the absence of the manufacturer as a party to the lis seller cannot who is the OP-2 herein, to evade his responsibility in properly attending the grievance of the complainant in respect of the said mobile handset. In this context, we place reliance on the decision reported in I (2018) CPJ 6A (CN) (HP) in the case of Sushil Kumar V/s Nokia Care Centre relying the decision of the National Commission wherein it is held as under:

Consumer Protection Act, 1986-Sections 2 (1)(f), 2 (1)(g), 15-Goods-Purchase of mobile phone-Defective-Non-functioning of mobile-Warranty period-Sent to service centre-Non-rectification of defect-Deficiency in service alleged-Replacement or refund sought-District Forum partly allowed complaint and directed free of cost repairing-Hence appeal-Opposite Party did not give any guarantee of mobile set but has given warranty of mobile- As such Opposite Party is under legal obligation to repair mobile set free of cost during warranty period-Job carried out in handset was satisfactory and he signed at delivery of hand set-Certificate given by him is binding upon him-He cannot be allowed to approbate or reprobate at same time-District Forum passed order with cogent and positive reason-Impugned Order upheld.

Further, in the another decision reported in I (2018) CPJ 174 (MP) in the case of Gupta Communication V/s PuranLal& another wherein it is held as under:

Consumer Protection Act, 1986- Sections 2 (1) (f), 2 (1)(g), 15- Mobile set- Manufacturing defect-Mobile stopped functioning and got hanged on several occasions-service centre neither repaired nor gave any mobile-Deficiency in service-Apportionment of liability-So far as liability of manufacturing company is concerned it is the issue between manufacturing company and dealer for which the Complainant cannot be made to suffer-If mobile sold by appellant did not function properly in period of warranty, appellant being seller of mobile would clearly be under obligation to either repair or replace mobile or to pay back consideration received by him to Complainant-District Forum has appreciated facts and law in just and proper manner.  

In the light of the above decisions cited supra, we come to the conclusion that the OP-2 being the seller cannot evade its liability in respect of to get redress the remedy of the complainant. Hence, the OP-2 can direct the OP-1 who being the service center to repair the said mobile handset in a usable condition with free of cost. If not, to refund the amount covered under the invoice for an amount of Rs.6,992/- with litigation cost of Rs.3,000/- is awarded, we hope ends of justice would meet sufficiently. Accordingly, we answer the Point No.1 in the affirmative.

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

ORDER

The complaint filed by the Complainant is allowed. The OP-2 is directed to instruct the OP-1 to get repair the said mobile handset (WS-47 Wham) in a proper usable condition with free of cost, if not, to refund an amount of Rs.6,992/- being the cost of the said mobile handset. Further, the Ops are directed to pay an amount of Rs.3,000/- being the cost of the litigation.

The Ops are directed to comply this order within 6 weeks from the receipt of this Order. Failing which, the Complainant is at liberty to take proper steps as per law.

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 11^th October 2018).

 

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

 

 

 

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

Mukund.P., who being the Complainant was examined. 

 

Copies of Documents produced on behalf of Complainant/s:

 

Ex-A1	Original Invoice
Ex-A2	Onsite Job sheet
Ex-A3	E-mail dt.19.1.2015
Ex-A4	Reply e-mail
Ex-A5	E-mail dt.10.4.2015
Ex-A6 to A6(d)	Notice, postal receipt and postal acknowledgements and returned RPAD cover
Ex-A7	Reply notice issued by OPs 1 and 2 dt.11.4.2016

 

 

 

(ROOPA.N.R)     MEMBER

(S.L.PATIL) PRESIDENT