C. C. No. 113 OF 2009.
Date of filing: 16.06.2009.
Between :

A. Seshkumar, S/o Koteswara Rao, Chief Manager, C/o State Bank of Hyderabad, Patamatalanka, Vijayawada.

..… Complainant.

And

1. M/s Univercell, Telecommunications India Pvt., Ltd., M.G. Road, Labbipet,

Vijayawada.

2. H.T.C., 1-1-405/6, Gandhinagar, Hyderabad – 500 080.

….. Opposite Parties.

This complaint is coming before us for final hearing on 04.01..2010 in the presence of Sri M. Ravi Kumar, advocate for complainant, and Sri K. Satya Sai Kumar, advocate for opposite party No.1 and opposite party No.2 called absent and having stood over for consideration till this day, the Forum doth order the following :

O R D E R

This complaint is under Section 12 of the Consumer Protection Act, 1986.

1. The averments of the complaint in brief are as follows:

That the complainant purchased touch screen cell phone from the 1st opposite party manufactured by the 2nd opposite party for valid consideration of Rs.16,500/- on 21.12.2008 and also paid an amount of Rs.413/- towards insurance premium. As things stood thus while using the mobile it gave trouble within the warranty period so, the complainant approached the 1st opposite party who inturn took the mobile and gave receipt and repaired and intimated to the complainant that the complainant has to pay Rs.4,000/- towards repair charges, otherwise it will not be handed over to him to which the complainant stated that the mobile gave trouble within the warranty period and that it is having insurance coverage so he need not pay but the 1st opposite party kept mum so, the complainant got issued legal notice on 27.05.2009 though, the 1st opposite party received but kept mum. As all the efforts of the complainant became futile in getting back the mobile after service (rectification) hence, the complaint.

2. The 1st opposite party filed version denying the allegations of the complaint but admitted sale of the mobile and warranty period and further contended that because of rough usage by the complainant the mobile was damaged and that the defect was broken LCD. As such the complainant is not entitled for the benefits under the warranty period or benefits of insurance or to say no coverage of insurance and so the same was intimated to the complainant but he paid deaf ear and that the complaint is not maintainable and there is no scope to come to a conclusion that the mobile had patent or latent defects and that there was no deficiency in service what so ever and it is because of the complainant only and the mobile is lying with him and prayed to dismiss the complaint.

3. The 2nd opposite party failed to contest the matter.


4. On behalf of the complainant the complainant himself filed an affidavit and got marked Exs.A1 to A4. On behalf of the 1st opposite party Sri Koonapareddy Siva Ram filed an affidavit and no documents are marked.

5. Heard and perused.

6. Now the point that arises for consideration in this complaint are:

I) Whether there was deficiency in service on the part of the opposite parties?

II) Whether the mobile now in dispute had patent/latent defects?

III) To what relief the complainant is entitled?

7. Point Nos.1 and 2: As could be seen from the material on hand it is crystal clear that the complainant purchased the mobile in dispute under the original of Ex.A1 and it is having one year warranty and that the mobile gave trouble within the warranty period and so the complainant approached the 1st opposite party who inturn received the defective mobile and gave job card on 06.05.2009 under the original of Ex.A2. Further it is argued by the learned counsel for the complainant that the 1st opposite party informed that he repaired the mobile of the complainant and that the complainant has to pay Rs.4,000/- for repair charges etc., and that the complainant refused to pay since the defect occurred within the warranty period and that the mobile was also covered by insurance that was also not denied by the 1st opposite party and infact the same was admitted by the 1st opposite party in the version yet, the mobile was not delivered to the complainant after rectifying the defects and it is still lying with the 1st opposite party as per the arguments and material on hand. Further, there is no any evidence to come to a conclusion that the mobile was damaged by the complainant because of rough usage etc., and that the defect may be patent or latent. On the other hand damage to LCD is nothing but patent defect that to within six months or to say it can safely be concluded that the mobile had patent defect and that was almost proved and no denial by the 2nd opposite party. On the other hand the 1st opposite party failed to reply and comply even to the legal notice vide Ex.A3 though the 1st opposite party received under Ex.A4 so the act of the 1st opposite party clearly falls within the purview of deficiency in service and that non-contesting of the complaint by the 2nd opposite party amounts to admission, so by it, it is clear that the mobile is having patent and latent defects so, the plea of the complainant is acceptable and accepted and thereby these points are answered in favour of the complainant and against the opposite parties.

8. Point No.3: In the result the complaint is allowed and the 1st opposite party is hereby directed to provide new defective free cell phone of same model to the complainant in lieu of the mobile which is with him (opposite party No.1)/purchased under Ex.A1 in the alternative the 1st opposite party is at liberty to pay its value and then the 1st opposite party is entitled to get the piece (mobile) from the 2nd opposite party and that the 2nd opposite party shall reimburse the 1st opposite party with a new mobile set of same model and that the opposite parties 1 & 2 (jointly and severally) are directed to pay an amount of Rs.1,000/- (Rupees one thousand) towards costs. Rest of the claims if any claimed by the complainant are rejected. Time for compliance one month.