K.P. Niranjan Reddy,
S/o. Prabhakar Reddy,
Hindu, aged 35 years,
Residing at 15-42, New Colony,
Pakala, Chittoor District. …. Complainant

And

1. The Proprietor,
Big-C, Guru Marketing,
14-27-2, Sivalayam Veedhi,
Balaji Nagar, Nellore.

2. The Branch Manager,
Big-C, Guru Marketing,
Having branch office 331, Gandhi Road,
Tirupati. …. Opposite parties



ORDER

This complaint is filed under Section 12 of Consumer Protection Act, 1986 to pass an order directing the opposite parties jointly and severally to replace the mobile phone with a new one or to pay the cost of the mobile phone along with interest at 18% per annum from the date of its purchase, i.e., 13.05.2007 till the date of realization; to pay a sum of Rs.50,000/- towards damages for causing mental agony; to pay Rs.5,000/- towards litigation expenses and to pass such other order or orders as the as the Hon’ble Forum may deem fit and proper in the circumstances of the case.



2. The factual matrix leading to filing of this complaint is set out as here under:


(a) The case of the complainant is that first opposite party is the proprietor of “Guru Marketing” doing business in selling the mobile phones and SIM cards of various companies and the opposite party No.2 is the branch office situated at 331, Gandhi Road, Tirupati. In fact, the complainant purchased a mobile of Sony Ericson make from the second opposite party for a sum of Rs.5,100/- with the model No.K320 bearing IME No. 353322013470597 with battery No.146758SWLGNM07W0s and with charger No.9907W04213477 on 13.05.2007. The second opposite party gave a cash bill bearing No.2907 to the complainant. The complainant further narrated in para 5 of his complaint that to his utter surprise, since the date of purchase, the mobile is giving trouble as the battery is not giving much stand by time and phone is also not working properly and when the complainant complained about the same to the second opposite party and asked for replacement of the mobile or refund of cost of the piece as the piece is within warranty period. For that, the second opposite party has not given any response and never cared about the same. When the complainant demanded the second opposite party, the reply was in negligent manner and careless attitude.

The second opposite party having sold the above said mobile phone for valid consideration by issuing above said cash bill coupled with warranty are not justified in responding in a negligent manner and put the complainant in so much of mental agony. So, there is clear deficiency in service on the part of the second opposite party. This matter was complained to the first opposite party, but there is no response. The complainant was put to mental agony as he had to repeatedly approached the second opposite party number of times. In view of the above circumstances the complainant got issued a legal notice dated 25.03.2008 calling upon the opposite parties to replace the mobile with a new one or in the alternative to repay the cost of the mobile paid along with 18% interest per annum from the date of purchase.

But the opposite parties herein have not complied with the same and also they are liable to pay damages for causing mental agony to the complainant for a sum of Rs.50,000/-. There is deficiency in service on the part of the opposite parties towards the complainant and it is attracting the provisions of Consumer Protection Act, 1986. The complainant has no other option except to file this complaint before this Hon’ble Forum for replacement of mobile or to repay the cost of the mobile with interest at 18% per annum from the date of purchase . Hence, the complaint.


3.(a) In response, the second opposite party resisted the complaint by filing written statement / written version. The Branch manager of the second opposite party filed his chief affidavit. The Branch Manager of the second opposite party while denying the material allegations in paras 5 to 7 the complaint, apart from admitting purchase of the above said mobile phone by the complainant and further narrated his version in para 5. He categorically submitted that various models of mobiles are being exhibited and sold in their showroom. They are not manufacturers of the said exhibited mobiles. The manufacturers of the said mobile are respective companies only. When the customer purchases a mobile piece, the warrantee / guarantee if any used to be given by the respective companies only.

In case any complaint regarding the exhibited/sold mobile is received, they will extend the services by endorsing the said complaint to the various service centres. In such a way they used to safe guard the interest of the customer by way of such rendering service. The complainant made a complaint regarding the mobile in question on 29.03.2008. Prior to 29.03.2008, the complainant never approached the second opposite party at any point of time with any of the defect. The complainant used the mobile for a period 11 months without any fault or defect. The complainant having used the above said mobile for a period of 11 months, only with a view to have a new model piece released in the market with wrongful motto, the complainant brought the defect to the notice of the second opposite party. The complainant acted with a malafide intention to get wrongful gain.


(b) When the complainant approached the second opposite party, with a view to get service, the second opposite party prepared a job sheet on 29.03.2008 and forwarded it to the authorized service centre of Sony Ericsson, i.e., Siri Communications, Khairatabad, Hyderabad. The said Siri Communications replied to the above said job sheet to the effect that “Warranty not claimed and water locked” and that the defect like this will not be covered under the warranty. The above said reply with the job sheet was returned to the second opposite party by the Siri Communications, Hyderabad. Subsequently, the second opposite party on intimation to the complainant, he came to the showroom and on knowing the fact and took his mobile admitting his unfortunate mis-use and mis-utilisation of the mobile set, repenting himself and the complainant requested the second opposite party to provide another new piece for which the second opposite party expressed inability.

The complaint in question is not maintainable because of non-joinder of proper parties and on that ground, the complaint is liable to be dismissed. There is no deficiency of service on the part of the second opposite party towards the complainant. The opposite parties are not liable to pay any damages to the complainant. The complaint is filed in order to get wrongful gain. In the said circumstances, the complaint may be dismissed awarding exemplary costs to the opposite parties.


4. In support of the averments made in the complaint, the complainant filed 6 documents which are marked as Exs.A1 to A6. Ex.A1 is the cash bill bearing No.2097 dated 13.05.2007 issued by the second opposite party for the value of Rs.5,100/- relating to the purchase of the above said mobile phone. Ex.A2 is the office copy of legal notice dated 25.03.2008 issued by the learned counsel for the complainant to the opposite parties. Ex.A3 is the acknowledgement card in receipt of the legal notice by the second opposite party. Ex.A4 is the unserved registered post cover relating to the first opposite party issued by the learned counsel for the complainant. Ex.A5 is the warranty certificate issued to the complainant at the time of purchase of the above said mobile phone. Ex.A6 is the report given by Siri Communications to the second opposite party.


5. In support of the averments made in the written statement / written version, the second opposite party filed 1 document which is marked as Ex.B1. Ex.B1 is the photostat copy of the report given by Siri Communications, Hyderabad addressed to the second opposite party and the same is similar to the one marked as Ex.A6.


6. Both the parties have filed their respective affidavit as evidence and learned counsel for the complainant filed written arguments on behalf of the complainant, whereas the second opposite party did not choose to file the written arguments on his behalf.


7. Basing on the pleadings of both sides, the points that arise for determination are:

1. Whether there is any deficiency in service on the part of the opposite parties
towards the complainant?
3. Whether the complainant is entitled for the reliefs as prayed, if so to what
extent?
3. To what result?


8. Point No.1:- (a) The basic facts of this consumer case are not disputed. The complaint, affidavit and written arguments of the complainant are identical as far as the prayer is concerned. Likewise, the chief affidavit of the second opposite party and written statement / written version are also on the same lines reiterating the facts narrated in them. The learned counsel for the complainant Sri Thota V. Ramesh vehemently argued that there is ample material to prove that there is deficiency in service on the part of the second opposite party towards the complainant. He further argued that the second opposite party with an intention to cheat the complainant have taken the mobile from him and put into water and thereafter has given the alleged report that the said cell phone is water locked and hence there is no warranty for water locked phone. The second opposite party did not issued reply notice to the complainant and that reveals that it is totally negligent on the part of the second opposite party.

The learned counsel for the complainant filed the detailed written arguments consisting of paras 1 to 8 stating the negligent attitude of the second opposite party. The said learned counsel for the complainant cited a decision reported in IV (2007) CPJ 175 decided by the Tamilnadu State Consumer Disputes Redressal Commission, Chennai in the case of Sky Cell Communication Ltd., Vs. M. Chinnawamy for applicability to the facts of this consumer case, wherein the mobile handset failed to work properly – Low battery condition within half an hour of working – Defects not rectified – O.P. held liable to return cost of handset with interest @ 18% p.a. – compensation of RS.10,000/- awarded – Order of District Forum upheld. The sum and substance of the ruling enunciated in the above said case is to be applied to the present consumer case also.
(b) On the other hand the Branch Manager of the second opposite party Sri K. Pramod Reddy filed written statement and chief affidavit stating that the complainant used the mobile for a period of 11 months without any fault or defect and further more narrated that with a view to get new model piece released in the market with a wrongful motive, the complainant brought the defect to his notice.

According to the complainant that since the date of purchase the mobile is giving trouble as the battery is not giving much stand by time and the phone is also not working properly. He further alleged in the written statement prior to 29.03.2008, the complainant never approached him at any point of time with any of the defect. While rendering service, after preparation of job sheet on 29.03.2008, forwarded it to the authorized service centre of Sony Ericsson, i.e., Siri Communications, Hyderabad. Actually the said Siri Communications in turn replied to the effect that warranty not claimed and water locked and defect like this will not cover under warranty and thereafter returned the mobile to the complainant accordingly. The defective mobile set in question gave defect only to the mis-utilisation by the complainant himself. The complaint is not maintainable due to non-joinder of proper parties and on that ground the complaint is liable to be dismissed.


( c) On perusal of the record and after verification of the documents, it is crystal clear as per Ex.A1, i.e, cash bill / purchase bill wherein it is stated that the call centre No.9441112229 as well as service centre phone No.0877-2259999. In order to appreciate the facts and circumstances of the case, it is essential to go through the conditions of the warranty, i.e, Ex.A5 where in it is stipulated on the warranty that “Subject to the conditions of this Limited Warranty, Sony Ericsson warrants this Product to be free from defects in design, material and manship at the time of its original purchase by a consumer, and for a subsequent period of one(1) year. To get maximum use of your new product, we recommend you to

• Read the guidelines for safe and efficient use in the manual.
• Read the terms and conditions of your Sony Ericsson warranty in the manual
• Keep your original receipt, you will need for warranty repair claims
• Present this Sony Ericsson Warranty Certificate along with original proof of purchase having details of purchase & Serial No. whenever you require any warranty service”.



By looking into the material contained in the warranty, one can presume that at the most the complainant / purchaser of any mobile handset as the case may be, naturally approach the retailer seller wherein he purchased his mobile phone for rectification of defect in the service centre. The above said mobile or hand set is presented for rectification of defect contained in it , i.e., battery is not giving much stand by time and the phone is also not working properly and the same is recorded in the job card provided by the second opposite party herein. The complainant herein issued a legal notice through his counsel on 25.03.2008 to the opposite parties and expressed that his mobile hand piece is giving trouble as battery is not giving much stand by time and phone is not working properly.

After two months, the second opposite party received the said piece from the complainant and sent it to Siri Communications, Hyderabad for repair. The second opposite party or the service centre as stated in Ex.A1 did not open the hand set in the presence of the complainant and find out what is the main defect contained in the above said mobile piece. The complainant is unable to know the defect in the presence of the second opposite party only and not at the Siri communications, Hyderabad and whatever may be the report such as water locked. In the absence of the complainant, no report, i.e., against him will give an impression that the retailer or service centre, Hyderabad may act prejudicial to the interest of the complainant. In fact, the second opposite party did not consider the plea of the complainant before receiving the legal notice and it shows the negligent attitude on the part of the second opposite party towards the complainant.

Having purchased the mobile hand set for the value of Rs.5,100/- by the complainant from the second opposite party’s shop with a fond hope that it will give satisfactory service without any trouble whatsoever, but in practice it is otherwise proved. The poor consumer / purchaser of the mobile set, the complainant has no other go except to file this complaint before this Forum for redressal of his grievances and seeking appropriate reliefs. In view of the facts and circumstance of this consumer case, it is proved that there is ample deficiency of service on the part of the second opposite party towards the complainant in rectifying the defects within the warranty period. The second opposite party did not respond and rectify the defect contained in the mobile hand set. It leads to filing of this complaint by the complainant for getting relief or reliefs as prayed in the complaint. There is no justification on the part of the second opposite party to invent new theory and conditions such as warranty not claimed and water locked and inspite of rectifying the defect of low battery in the hand set.

There is deficiency in service on the part of the opposite party. The term ‘deficiency’ is defined in Section 2(1)(g) as follows: ‘deficiency’ means any fault, imperfection, short coming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. In its decision in Lucknow Development Authority Vs. M.K. Gupta (1994) I SCC 243, the Supreme Court examined the scope of the term ‘service’ in the context of a consumer protection legislation. The Supreme Court in its decision in Ravneet Singh Bagga Vs. KLM Royal Dutch Airlines (2000) I SCC 66 had the opportunity to explain the nature of the test for ascertaining deficiency in service. According to Webster’s New Collegiate Dictionary defect means deficiency. Though both the words defect and deficiency mean almost the same, the Consumer Protection Act gives two distinct definitions and the words must be used and interpreted as per the definitions given in the said Act of 1986. Further the word ‘defect’ under Consumer law is used in relation to goods and the word ‘deficiency’ in relation to services. It is clear as per the pleadings that the dispute is relating to low battery in the above said mobile phone.

The complainant is very well brought to the notice of the second opposite party well in advance, i.e, before warranty period expired (within one year) about the defect in the said mobile phone. The second opposite party instead of sending it to Siri Communications, Hyderabad office, he could have rectified by noticing the defect here at Tirupati. The second opposite party did not thought of it for the reasons best known to him. Consequently the complainant is put to much hardship and inconvenience. The second opposite party described in Ex.A1, i.e., in the purchase bill and provided service centre phone number to contact for service. The complainant is not supposed to expect much delay from other service centres such as Hyderabad to check it up for the reason for defect. When the complainant is specifically mentioned about low battery defect, it could have been rectified very easily instead of driving him or waiting for report from Hyderabad by the second opposite party. When such is the case nobody will purchase mobile phone from retail shops. The defence or stand taken by second opposite party is not justified and hence it is a fit case for consider it for deficiency in service. This point in answered accordingly.


9. Point No.2:- In view of the above said discussion and after considering the facts and circumstances of the case, it can be said that in interest of justice, it is reasonable and appropriate to pass an order directing the second opposite party to replace the mobile phone with a new one and pay the costs of the complaint of Rs.1,500/- to the complainant. The complainant must hand over the present mobile hand set with him to the second opposite party and he is entitled to get a new one of the same value and same design from the second opposite party. This point is answered accordingly.


10. Point No.3:- In the result, the complaint of the complainant is allowed in part directing the opposite parties to replace the mobile phone with a new one and to pay Rs.1,500/- towards the costs of the complaint to the complainant within 6 weeks from the date of receipt of copy of order.