K. Subramanian,

s/o Kandasamy,

P. Vellalapatti,

Melur 4th street,

Puliyur CF Post. Karur. … Complainant

-versus-



1. Univercell Telecommunications India Pvt. Ltd.,

Rep. by its Manager,

Jawahar Bazaar, Near Head Post Office,

Karur.



2. Nokia India Pvt. Limited,(Nokia Telecom SEZ)

Sipcot Industrial Park, Phase III A,

Sriperumpudur 602 105.

Tamil Nadu. … Opposite Parties





This complaint coming on 23rd day of April 2009 for final hearing before us in the presence of Thiru P. Thangavel, Counsel for Complainant and Thiru A.Vijayakumar, Counsel for 1st Opposite Party and Mr. A. Pandian, Counsel for 2nd opposite party and hearing both sides and having stood over till this day for consideration, this Forum passed the following order:
ORDER



1. The crux of the complaint is : -

The complainant on 14.06.2008 has purchased a Nokia handset of 1209 model for Rs.1,600/- from the 1st opposite party. The 1st opposite party has issued a replacement warranty for 12 months. The handset did not function well from the next day. The complainant met the first opposite party who instructed the complainant to hand over the handset to the service engineer.

On 19.6.2008 the complainant handed over the handset to the first opposite party who issued job card. The first opposite party refused to rectify the defects within the warranty period and demanded Rs.350/-. The complainant has issued a lawyer notice on 25.6.2008 and the first opposite party has issued a reply . The complainant alleges deficiency in service and manufacturing defect in the hand set and has filed the complaint to direct the opposite party to replace the defective handset, compensation and cost.



2. The first opposite party has filed written version and the contentions in brief is:-

The first opposite party has stated that they are retailer and that the handset will be replaced by the second opposite party only after scrutiny by their service engineers and replacement will be effected if there is manufacturing defect. The first opposite party had requested the complainant to approach the 2nd opposite party. The customer has reported defects and the same was forwarded to the second opposite party. There is no deficiency in service on their part and the complaint has to be dismissed.



3. The second opposite party has filed written version and the contentions in brief is:-

The second opposite party has stated that they provide limited warrant of 12 months from the date of purchase of the product. In certain abnormal conditions as mentioned in Clause 7(a) of limited warranty no such benefits are available to the consumers. The limited warranty document is a part of user manual and is inserted in every package of handset. The allegations made in the complaint are unsubstantiated and hence complain has to be dismissed.



4. The point for consideration is whether there is any deficiency in service on the part of the opposite parties and if so to what relief the complainant is entitled for?



5. POINT : The complainant to prove his case has filed proof affidavit along with 5 documents and the same has been marked as Ex. A1 to A5.



6. The complainant has purchased a Nokia handset of 1209 model on 14.6.2008 for Rs.1,600/- from the 1st opposite party. The copy of the bill is produced and placed as Exhibit A1. The same is not disputed by the 1st opposite party. The complainant had stated that the first opposite party has issued a replacement warranty for 12 months. But the second opposite party had

contended that they provide limited warranty of 12 months from the date of purchase of the product. In certain abnormal conditions as mentioned in Clause 7(a) of limited warranty no such benefits are available to the consumers. The complainant had stated that the handset did not function well from the next day. The complainant met the first opposite party who instructed the complainant to hand over the handset to the service engineer. The complainant had handed over the handset on 19.6.2008 to the first opposite party who issued job card. The job card is produced before us as Exhibit A2. All these facts are not disputed and the bone of contention is whether the alleged defect in the handset is within the purview of warranty offered by the opposite parties.


The 2nd opposite party has categorically stated that every consumer gets one year limited warranty period, subject to terms and conditions contained in the warrant clause and the extract has been reproduced by them which reads as follows: “ This limited warranty period does not cover normal wear and tear(including without limitation, wear and tear of camera lenses, batteries and displays, transport costs, defects caused by rough handling(including, without limitation, defects caused by sharp items, by bending, compressing or dropping etc., defects or damage caused by misusage of the product including the use, contrary to the instructions provided by Nokia, other acts beyond reasonable control of Nokia…..” In this context on perusal of service job sheet produced as document along with the proof affidavit by the first opposite party reveals that the defect is due to physical damage and water damaged and as such the alleged defect is not within the warranty provided by the opposite parties. The complainant has not taken any efforts to establish that the alleged defect in the handset is a manufacturing defect. The complainant has not filed any application before this Forum seeking to get the handset inspected by independent professional and obtain his opinion to counter-blast the service job sheet of the opposite parties which points that the defects is due to physical damage and water damage.

The complainant had failed to substantiate that the handset suffers from manufacturing defect. The opposite parties had established their contention that the alleged defect is not within the purview of the warranty given by them since it is only limited warranty. In view of the above discussion and the documentary evidences placed before us we are not inclined to hold the act of the opposite parties as deficiency in service. So, we are of the opinion that the complainant is not entitled to any relief as prayed by him. Point is answered accordingly.

O.P Singh S/o Sh. Sagar Singh, R/o House No. 48, Field Health Organization, C/o 56 APO, Bathinda Cantt.


Versus

1. M/s. Nokia India Private Limited, Second Floor, Commercial Plaza, Radisson Hotel, NH-8, Mahipalpur, New Delhi-37 through its Managing Director/Chairman.

2. M/s. Bhagta Sales House, Near Bus Stand, Bathinda through its Proprietor.

1.

Sh. O.P Singh complainant has filed the present complaint under section 12 of the Consumer Protection Act, 1986 (In short called the 'Act') against the opposite parties with the allegations that he purchased one Nokia-5130 mobile set having IMEI No. 3593290439196 from opposite party No. 2 vide bill No. 1868 dated 4.3.2009 for an amount of Rs. 7,200/-. Complainant later-on acquired knowledge that the actual price of the mobile set is Rs. 5,850/- and the different dealers of opposite party No. 1 are charging the cost between Rs. 5,800/- to Rs. 5,900/-. Complainant thereafter immediately approached opposite party No. 2 and told him that he has charged an amount of Rs. 1,350/- in excess of the actual value of the Nokia mobile set model 5130 sold to him for Rs. 7,200/- vide bill dated 4.3.2009. Opposite party No. 2 refused to refund the amount and told him that he is at liberty to get the relief from the court. He is not in a position to refund any amount because he has purchased the set from opposite party No. 1 for Rs. 7,200/- and he snatched the original bill forcibly from the complainant. He further pleaded that opposite party No. 2 in an unfair manner grabbed an amount of Rs. 1,350/- in excess of the actual price of the mobile set and thus exploited the position of the complainant as innocent consumer. The complainant has suffered mental tension, harassment, botheration and inconvenience due to the unwarranted act and conduct of opposite party No. 2 for which he is entitled to reasonable amount of compensation. He has also claimed reasonable amount of litigation expenses.
2.

Opposite party No. 1 did not contest the complaint, whereas opposite party No. 2 filed reply raising inter-alia preliminary objections that the complaint has been filed on false and baseless grounds. At the time of purchase of Nokia mobile set on 4.3.2009, the complainant had firstly selected another model of mobile set, the value of which was Rs. 7,200/- and thereafter, he selected Nokia mobile set model 5130. Inadvertently, bill was issued for Rs. 7,200/-. When the mistake was realized, opposite party No. 2 there and then returned Rs. 950/- to the complainant. Due to inadvertence and good faith, opposite party No. 2 could not correct the amount of the bill. Otherwise, there is no truth in the version of the complainant. The complainant be burdened with costs of Rs. 5000/-. On merits, opposite party No 2 has reiterated the facts he has raised in the preliminary objections.
3.

In order to prove their respective assertions, complainant as well as opposite party No. 2 led evidence. Complainant tendered in evidence his own affidavits Ex.C.1 & Ex.C.2, affidavit Ex.C.3 of one Ashwani Kumar, photocopy of dealer price list Ex.C.4, photocopy of bill No. 1868 dated 4.3.2009 Ex.C.5 and photocopy of retail invoice dated 4.3.2009 Ex.C.6.
4.

To controvert the evidence of the complainant, opposite party No. 2 tendered in evidence affidavit Ex.R.1 of Sh. Sat Pal.
5.

We have heard the complainant as well as opposite party No. 2 which were present in person and gone through the entire record of the case very carefully.
6.

Complainant has urged that he visited the business premises of opposite party No. 2 on 4.3.2009 and he purchased one Nokia mobile set model 5130. Opposite party No 2 charged an amount of Rs. 7,200/- as cost of Nokia mobile set and he also issued bill Ex.C.5 for Rs. 7,200/-. He also urged that after sometime, he came to know that the actual cost of the Nokia mobile set model 5130 is Rs.5,768/-. As per dealer price list of Nokia mobile sets for distributors and stockists Ex.C.4, the cost of Nokia mobile set model 5130 is Rs. 5,768/- and another Nokia retailer has sold the same Nokia set on the same date i.e. 4.3.2009 for an amount of Rs. 5,850/- vide retail invoice Ex.C.6. The complainant urged that he has been cheated by opposite party No. 2 by charging more than an amount of Rs.1,350/- over and above the actual price as per the dealer list Ex.C.4.
7.

Opposite party No. 2 has urged that infact complainant visited his business premises and firstly, he purchased another set for an amount of Rs. 7,200/-, but after the bill Ex.C.5 was prepared, he purchased the other set of less value and therefore, he immediately returned on the spot itself Rs.950/- to the complainant, but this correction he could not make in the bill Ex.C.5 due to inadvertence and taking undue advantage of bill Ex.C.5, complainant has filed the present complaint against him on wrong facts.
8.

We have taken into consideration the respective contentions of the parties vis-a-vis the evidence led by both the parties to prove their respective assertions. It appears from the affidavits of the complainant Ex.C.1 and Ex.C.2 that the facts he has narrated in his complaint are fully corroborated. He has also examined another witness Sh. Ashwani Kumar and brought his affidavit Ex.C.3 on the record. He has specifically stated in his affidavit Ex.C.3 that he accompanied the complainant for getting excess amount charged by opposite party No. 2 against Nokia mobile set model 5130 on 5.3.2009, but opposite party No. 2 rebuked and insulted the complainant and he totally refused to refund the excess amount. He even snatched the original bill from the complainant.

In view of the facts narrated by the complainant in his two affidavits Ex.C.1 & Ex.C.2 which are duly corroborated by Sh. Ashwani Kumar in his affidavit Ex.C.3 also find support from undisputed dealer price list of Nokia mobile sets for distributors and stockists Ex.C.4 which reveals the price of Nokia mobile set model 5130 as Rs. 5,768/-. It also appears that another Nokia mobile set model 5130 was sold by another retailer to one Sh. R Mohan Garg on 4.3.2009 vide invoice Ex.C.6 for Rs. 5,850/- only, whereas opposite party No. 2 sold the same mobile set to the complainant on the same date i.e. 4.3.2009 vide invoice Ex.C.5 for an amount of Rs. 7,200/-, meaning thereby that even if the cost of Nokia mobile set model 5130 is taken as Rs. 5,850/- as per invoice Ex.C.6 which includes the reasonable profit of the dealer as well, definitely complainant has been cheated by opposite party No. 2 by charging an excess amount of Rs. 1,350/- in a whimsical manner by exploiting his position as a service provider against the complainant which is consumer.

There appears to be no substance in the submission of opposite party No. 2 that infact the complainant purchased another Nokia mobile set of the value of Rs. 7,200/- and thereafter, he purchased another mobile set with less value and that he returned the amount of Rs. 950/- to the complainant on the spot. If this would have been the position, opposite party No.2 would have definitely pointed out to us which model infact complainant had purchased and for which the actual cost was Rs. 7,200/-. During the course of arguments, opposite party No. 2 was shown the dealers price list of Nokia mobile sets, but he could not point out as to which model Nokia mobile set was sold by him to the complainant. Taking into consideration the averments made by the complainant in his affidavits Ex.C.1 and Ex.C.2 and also affidavit Ex.C.3 of Sh. Ashwani Kumar, the bills of purchase Ex.C.5 & Ex.C.6 vis-a-vis dealer price list Ex.C.4, we have no doubt in our mind that the complainant has been cheated by opposite party No. 2 by selling Nokia mobile set model 5130 of actual value between Rs. 5,700/- to Rs. 5,800/-, infact selling the same for an amount of Rs. 7,200/-. The complainant under the circumstances is not only entitled to the refund of the excess amount i.e. Rs. 1,350/-, but also punitive charges as well as expenses for forced litigation, which the complainant has to fight for the redressal of his grievances. We, accordingly, accept the complaint and direct the opposite parties to do as under :-

( i ) Opposite party No. 2 shall refund an amount of Rs. 1,350/- to

the complainant.

( ii ) Opposite party No. 2 shall also be liable to pay punitive charges for putting the complainant unnecessary harassment, inconvenience, mental agony, tension and grabbing excess amount than the actual cost of the mobile set to the tune of Rs.10,000/-.

( iii ) Due to the adamant act and conduct of opposite party No. 2, the complainant was forced to file the present litigation for his genuine grievances and therefore, he had to make expenditure not only for filing the complaint, paying required fee and also for legal assistance and we reasonably assess the total value of litigation expenses to the tune of Rs. 2,500/-.

( iv) Opposite party No. 1 shall issue necessary directions to all the stockists and dealers to display the dealer price list of all the models of the mobile sets they are authorised to put for sale for the general public on conspicuous place at the entrance of their business premises so as to avoid any overcharging of cost from the consumers.

( v ) Opposite party No. 2 will also display the dealer price list of all the models of the Nokia mobile sets put for sale to the general public, as issued by opposite party No. 1 from time to time and also similar situated companies, if their mobile sets are put to sale for the general public i.e. consumers.

Sri Tummaganti Sriharsha, S/o Gopala Krishna Rao, Hindu, aged 32 years, practicing as an Advocate, R/o D.No.9-10-1/2, Shivajipalem, Ammavari Street, Peda Waltair, Visakhapatnam - 17.

… Complainant

1. M/s Nokia India Private Limited, 2nd Floor, Commerical Plaza, Radison Hotel, N.H. 5 8, Mahipalpur, New Delhi, Rep. by its Managing Director.

2. SMS Enterprises, Shop No.1, Sri Datta Sai Enclave, Ramnagar, Visakhapatnam – 2.

3. Nokia Care Centre, HCL Infinet Limited Shop No.23, 1st Floor, Found Plaza, Opposite Party. Saraswathi Theatre, Suryabagh, Visakhapatnam-16

... Opposite Parties


: O R D E R :

1. The complainant a practicing advocate, purchased a mobile phone of Nokai Model N-70 from 2nd opposite party, an authorized dealer, on 25-04-2006 for an amount of Rs.18,900/-. Unfortunately the set started giving trouble immediately after purchase and the 2nd opposite party made some minor adjustments and assured that there won’t be any further problem. However in the month of August 2006, the handset again started mal-functioning, the 2nd opposite party pleading it to be manufacturing defect, directed the complainant to approach 3rd opposite party, Nokia Care Centre, the authorized repair center. The handset was surrendered to the 3rd opposite party and job sheet bearing No.1460 was given. But, inspite of promises, the 3rd opposite party never delivered back the handset. The complainant then issued legal notice to both the opposite parties 2 and 3, complaining deficiency in service and demanding pay back the value of handset, together with damages of Rs.80,000/-. Having failed to get any response from them, this complaint, impleading the 1st opposite party manufacturer, for return of the cost of the Nokia Handset Rs.18,700/- with interest @ 24% p.a. and also Rs.40,000/- as compensation for the mental agony and monetary loss suffered besides costs of Rs.5,000/-.

2. 1st opposite party alone contested the matter and filed counter denying any liability and pleading that the complaint is nothing but gross abuse of process of law. It took up a stand that the service would be done free of charge only under limited warranty coverage and further if it is a genuine set. It also took stand that the replacement as per limited warranty terms is limited only where the repair is not possible. Though lengthy counter has been filed, the complaint of the handset was surrendered with the authorized repairing center and it was not returned, was neither denied nor referred to even. Ultimately it pleaded for dismissal of the complaint.

3. At the time of enquiry the complainant apart from filing his own affidavit, marked Ex.A.1 to Ex.A.5. The opposite parties did not chose to participate in the enquiry and hence it is treated it does not have any evidence to substantiate its plea. The complainant naturally reiterated his contentions at the time of hearing.

4. The point for determination is

whether there is any deficiency in service on the part of the opposite parties and the complainant is entitled for the relief asked for?

5. The fact that the complainant purchased handset from 2nd opposite part cannot be denied, though the contention opposite party did not admit it, as even otherwise Ex.A.1 receipt issued by the 2nd opposite party would prove the same. Ex.A.2 is job card issued by the 3rd opposite party and it would show that the fault of the handset was no network, no charging indication and sudden drop in signal. It was dated 30-08-2006. It contains an endorsement dated 28-09-2006 that the handset would be returned on Wednesday. A similar endorsement dated 07-10-2006 was there which would show that by Monday, it would be returned or a new set will be purchased. Another document is Ex.A.3 legal notice issued to both the opposite parties 2 and 3 narrating the events and failure to return the handset repaired and demanding repayment of the value of the handset and damages of Rs.80,000/-. The very job sheet itself would prove that the handset is handed over to the 3rd opposite party, who is the authorized repairing center, representing 1st opposite party and it has got a responsibility and liability to return the same. But evidently it was not done so, inspite of issue of legal notice. This would establish that the complainant was deprived of his handset by the failure of the 3rd opposite party to return the same. It failed to render proper after sales service and even went to the extent of depriving the complainant, the goods purchased from them. It amounts to deficiency of service on the part of the opposite parties.

6. There cannot be any doubt that having spent substantial amount the complainant was deprived of facility of communications and he must have been put to lot of inconvenience. He must have suffered mental agony also, being deprived of a valuable handset. Considering these factors, in our view, ordering payment of Rs.10,000/- as compensation would be just and proper. The complainant would naturally be entitled for reimbursement of the purchase price of the handset i.e., Rs.18,700/- with interest @ 12% p.a., from 01-09-2006 till the date of payment. Accordingly this point is answered.

7. In the result, the complaint is allowed, directing the opposite parties 1 to 3 to pay Rs.18,700/- (Rupees eighteen thousand seven hundred only) being the value of the Nokia handset, together with interest @ 12% p.a., from 01-09-2006 till the date of payment. Opposite parties 1 to 3 are further directed to pay compensation of Rs.10,000/- (Rupees ten thousand only) and also costs of Rs.2,500/- (Rupees two thousand five hundred only). Advocate fee Rs.1,000/- (Rupees one thousand only).

Smt. M. Prameela. W/o Suresh, Hindu, female,

Housewife, R/o Eluru, W.G. Dist., -- Complainant



And



1. The Proprietor , Sri Vasavi Delux World

Opp: Madhulatha Hotel, Eluru-2

W.G. Dist.,



2. The Care Manager

Nokia India Pvt., Ltd.,

4F-Tower-A & B, Cyber Green, DLF Cyber city

Sector -25A, Gurgaon -122002, Haryana State -- Opposite Parties

O R D E R



The complainant being an housewife filed the present complaint under Sec. 12 of the Consumer Protection Act, 1986 with a prayer to direct the opposite parties to pay a sum of Rs.7,300/- towards costs of the Nokia Cell phone together with subsequent interest at the rate of 24%pa., from the date of complaint till the date of realization and also to pay a sum of Rs.10,000/- towards compensation for mental agony suffered by her together with costs of the complaint. The averments of the complaint in brief are that :



2. The 1st opposite party is one of the sellers of Nokia Cell phones in Eluru town and the 2nd opposite party is the manufacturer of Nokia Cell phones. The complainant on 6-12-2007 purchased Nokia Cell phone bearing Model No. 7610 (black) with IMEI No. 356965013 with battery No. 0670400417 from the 1st opposite party by paying a sum of Rs.7,300/-. She purchased the said phone for her daily use and the 1st opposite party also gave a warranty period of one year. After purchase of the cell phone, the complainant faced much difficulty due to the non-functioning of the cell phone. Then she went and handed over the sell phone to the 1st opposite party for effecting repairs. The 1st opposite party after effecting repairs and handed over the cell phone to the complainant and when the complainant started to use the same, she found that the same was as usual previously. Immediately the complainant again approached the 1st opposite party and asked about the non-functioning of the said cell phone and handed over the same to the 1st opposite party who in turn returned to her after 15 days by saying that it was in perfect condition. Believing the words of the 1st opposite party the complainant took the instrument and when she started using the mobile, the same error occurred again.

Thereupon the complainant again approached the 1st opposite party and when she questioned about the same, the 1st opposite party asked her to wait for two months by saying that the servicing center would be shifted to Eluru from Vijayawada. Later the complainant approached the 1st opposite party so many times and requested for replacement of the cell phone or to pay the costs of the same as the 1st opposite party did not rectify the problems arose in the cell phone. But the 1st opposite party neither gave any new piece nor paid any amount and on the other hand dragging the matter on some pretext or the other by giving evasive replies which caused her suffering from mental agony. Thereafter when the efforts made by the complainant were proved futile, she got issued a legal notice to both the parties demanding them to either replace the cell phone or refund the costs of the cell phone. Both the parties having acknowledged the receipt of the said notice, the 2nd opposite party did not even give any reply, but however the 1st opposite party gave a reply with some false and untenable allegations. The acts of the opposite parties in not complying the request made by the complainant amounts to deficiency in service on their part which caused a lot of mental agony to her. Thus the present complaint is filed for the aforesaid reliefs.



3. The 1st opposite party filed version denying the averments of the complaint and stated that the complainant never approached their shop at any time for repairs of the cell phone and he came to know about the same only after receipt of the legal notice got issued by the complainant for which he accordingly gave a suitable reply notice with all real state of affairs, and that this opposite party is only a seller of the cell phone and as per the bill issued, the warranty or guaranty if any should be attended by the 2nd opposite party and hence the question of dereliction of duties of the opposite party and other allegations ie., anti customer motive and negligent acts on the part of this opposite party does not arise and therefore the complaint is liable to be dismissed with exemplary costs.

4. The 2nd opposite party filed its version denying the averments of the complaint and stated that the complainant not filed any proof to show that she approached anybody for effecting repairs to the Nokia cell phone purchased by her from the 1st opposite party, that the 1st opposite party is only the seller but not the servicing agent, that as per the terms and conditions of the warranty, the complainant has to approach the concerned service center for getting the mobile rectified but she did not do so, and that the complainant had not approached this Forum with clean hands and therefore the complaint is liable to be dismissed with exemplary costs.

5. The complainant in proof of her claim filed her own affidavit and got marked Ex A.1 to Ex A.6. On the other hand, the opposite parties 1 and 2 to substantiate their defense mentioned in their versions, filed separate affidavits and got no documents marked.


6. The points for determination now are :


1) Whether the deficiency in service as alleged by the complainant against the opposite parties 1 and 2 is proved ?


2) Whether the complainant is entitled for the reliefs as prayed by her ?


3) To what relief ?


POINT No: 1

As per the averments of the complaint and the proof affidavit filed by the complainant coupled with cash bill Ex A.1 and so also the version of the 1st opposite party there is no dispute in the matter about the purchasing of the cell phone by the complainant from the 1st opposite party under the original Cash Bill/ExA.1.

It is the contention of the complainant that since the date of her purchase of the cell phone from the 1st opposite party, it started giving trouble in its functioning and thereupon she approached the 1st opposite party for rectification of the defects in the cell phone for about 3 times but inspite of it, the cell phone was not properly rectified. It is the contention of the 1st opposite party that there is no proof in the contention of the complainant and in fact, the complainant never approached him and never brought the defects of the cell phone to his notice and that he is only a seller of the Nokia cell phones. It may be no doubt true that the complainant had not produced any proof to show that she approached the 1st opposite party twice and thrice for getting repairs of the phone purchased by her from the 1st opposite party under Ex A.1. But at the same time, it has to be kept in mind that the 1st opposite party was in receipt of the legal notice under original of Ex A.2 got issued by her. A perusal of the recitals of Ex A.2 clearly goes to show that the complainant brought all the said facts to the notice of the opposite parties about the non-functioning of the cell phone from the beginning of its purchase. It may also be no doubt true that the 1st opposite party had given reply under Ex A.5. A perusal of the recitals of the reply Ex A.5 given by the 1st opposite party clearly goes to show that he completely denied the version of the complainant that she never approached him at any time.

If such is the situation, when the complainant brought about the defectiveness of the cell phone through the legal notice, the 1st opposite party through his reply ought to have advised her to approach the servicing center for getting the cell phone repaired or for its replacement if there is any manufacturing defect. But the 1st opposite party failed to do so which itself amounts to unfair trade practice on his part in not guiding the complainant properly. It may also be no doubt true that the 1st opposite party may be a seller of the cell phone. But simply because he is the seller that does not mean that he can escape from his liability for the reason that he is getting substantive profit from the sale of goods. In other words, it can be said that if the customer/complainant encounters with any problem regarding the functioning of the cell phone, the seller/1st opposite party with whom alone the complainant will have contact has to take interest and responsibility to see that the goods sold by him are rendered free from defects. Usually the consumers like the present complainant will go and purchase the goods like the cell phones from the popular retail outlets with a hope that they will take responsibility and show interest towards maintenance of the goods sold by them by invoking the help from the concerned servicing centers or from the manufacturers. Therefore, we are of the view that if any defect is found in the set, it is the duty of the 1st opposite party the retail outlet, to get the defect rectified by invoking the help of the manufacturer or their agent for rendering after care service. In the case on hand, both the parties except taking a plea of denial did not try to advise the complainant properly in solving the problem being faced by her. That apart the 2nd opposite party having received the legal notice under the original of Ex A.2 got issued by the complainant did not even try to give any reply. That itself amounts to an admission on the part of the 2nd opposite party besides the 1st opposite party in not rendering their service to the complainant which constitutes deficiency in service on their part. Therefore, we found that the complainant had clearly established her case against both the opposite parties and proved the deficiency in service and unfair trade practice on the part of the opposite parties.



POINT No: 2



It is no doubt true that the cell phone in question is still in position of the complainant. But her case is that she is an housewife and her husband with a grate love and affection towards her, purchased the same in her name, who used the same for her daily needs with her husband and with her parents who are residing far away from her place and on account of the unbelievable and anti-consumer motive and due to negligent acts of the opposite parties in not effecting the repairs to the cell phone or replacement of the same, she suffered a lot of mental agony for which she also entitled for compensation, which is a fact clearly established by the complainant through the circumstances of the case on hand.

In view of the said circumstances and for the reasons stated above, we found that the complainant had clearly established the deficiency in service as alleged by her.

Therefore, we are of the view that the complainant can be compensated by granting a reasonable relief.

The complainant requested this Forum to direct the opposite parties to pay a sum of Rs.7,300/- towards costs of the cell phone purchased by her under the cash bill/Ex A.1 together with interest from the date of complaint till its realization or to direct the opposite parties to replace the cell phone in question with new one. This is the case where the complainant purchased the cell phone in question a very long back ie., on 6-12-2007, if this Forum orders for replacement of the cell phone in question with new piece then the complainant is entitled for the new set of the same model which may or may not be available by the time of execution of the present order. If really similar model of the set is not available, again the complainant has to pursue her matter by way of further litigation. To avoid further litigation in the matter, we thought it better to give a direction to the opposite parties to pay the costs of the cell phone covered under Ex A.1 will meet the ends of justice besides a reasonable sum towards compensation for her mental agony. The points are answered accordingly.



In the result, the complaint is allowed directing the opposite parties 1 and 2 jointly and severally to pay to the complainant a sum of Rs.7,300/-(Rupees seven thousands three hundred only) towards costs of the cell phone in question by receiving the cell phone from the complainant, besides a sum of Rs.1,000/- (Rupees one thousand only) towards compensation for mental agony and a further sum of Rs.500/- (Rupees five hundred only) towards costs of the complaint within 30 days from the date of due dispatch of free copy of this Order.

Since a reasonable compensation is awarded, the subsequent interest over the costs of the cell phone is unwarranted.

Anoop Alex,

S/o Alexander,

Elavungal House, Rajapuram Po, : Complainant

Hosdurg Taluk.


One-2 One Telecom,

Near Juma Masjid, Busstand, : Opposite party

Kanhangad

ORDER

Complainant Anoop Alex filed this complaint on the ground that the Nokia mobile phone No.1208 worth Rs.1700/- from opposite party’s shop on 22/2/08 became defective within 3 months. It was taken to opposite party for servicing. Opposite party returned the same after checkup. Again the defects recurred but on approach, opposite party refused to rectify the defects. Though a lawyer notice was caused, no reply was sent to the said notice. Hence the complaint claiming the replacement of the mobile phone with compensation and costs.



2. Opposite party remained absent inspite of receipt of notice by registered post. Hence opposite party set exparte.

3. Complainant Sri.Annop.filed affidavit in support of his case. Exts.A1 to A6 marked. Complainant heard and the documents perused carefully.

4. Ext.A2, users manual guide show that the manufacturer of the Mobile phone M/s Nokia corporation has provided limited warranty to the Nokia Mobile Phone for a period of 12 months from the date of purchase.

5. The complainant purchased the mobile phone on 22/2/08 as evident from Ext.A1, purchase bill. Of course the defects are occurred during the warranty period. Therefore the complainant is entitled either for the replacement of the mobile phone or for the refund of the price paid. Definitely a customer will put to severe mental agony if a brand new product shows signs of troubles within a shorter period of purchase. The non replacement of the mobile phone with a defect free one is unfair trade practice on the part of the opposite party .

Therefore the complaint is allowed and the opposite party is directed to refund Rs.1700/- that he collected from the complainant towards the purchase price of the mobile phone with a compensation of Rs.2000/- and a cost of Rs.1000/-. On receipt of the amount the complainant shall return the mobile phone to the opposite party and obtain the receipt. Had the opposite party got a case that it is the manufacturer who is liable to return the purchase price of the mobile phone, opposite party can recover the amount paid to the complainant from the manufacturer M/s Nokia Corporation through appropriate legal proceedings.

Babu.K.V,

Paini Veedu, Veenachery, Vellikkoth, } Complainant

Ajanur.Po, Kasaragod.Dt. 671531.


Owner,

Mobile Park, Dain’s Arcade, } Opposite party.

Opp: Bus Stand, Kanhangad.
O R D E R

The grievance of the complainant Babu K.V a service personnel of Indian Army, is that he purchased a Nokia 5310 Mobile phone from opposite party for Rs.8500/-. It showed signs of troubles like over heating of battery on the first day of purchase itself and within 6 days the mobile set became useless. On 24-03-09 the complainant entrusted it for service to opposite party. On 31-03-09 opposite party returned the mobile phone with a report that the handset is fluid logged. When the complainant enquired about this complaint he came to know that only in the event of opening the mobile phone there is chance for fluid logging and he has never committed the said mistake. The said defect was an inherent one. The leave he availed became vain since he constrained to visit the shop of opposite party frequently to enquire about the mobile phone. Therefore the complainant claiming the replacement of the mobile phone with a defect free mobile phone and a compensation of Rs.5000/- towards his loss, hardships and mental agony suffered.

2. Opposite party remained absent inspite of receipt of notice issued through registered post. Hence opposite party was set exparte. On behalf of the complainant his authorized agent, his brother-in-law Shyam Babu adduced evidence as PW1 and Exts A1 to A3 marked. He was heard and documents perused carefully.

3. Ext.A1 is the sales bill dated 13-03-2009. Ext.A2 in the service job sheet dated 24-3-09. Ext.A3 is the report rejecting the warranty service stating the reason of fluid logging.

4. PW1 deposed that the mobile phone was defective on the first day of the purchase itself and its battery became weak within 6 days. It had the complaint of excess heating on the date of purchase itself It’s battery lost its recharging power within 6 days. He further deposed that the mobile phone was never opened by any one as it was having the warranty.

5. The fact that the mobile phone become defective and the customer compelled to entrust the same for repair on the 8th day of purchase itself proves that the mobile phone was having manufacturing defect. A reasonable prudent man will never attempt to open a new mobile phone worth Rs.8500/- if defects were noted especially when it is having a warranty of service. Therefore it is clear that the mobile phone sold to the complainant was having inherent manufacturing defects and therefore the opposite party committed unfair trade practice by selling a defective mobile phone to the complainant. Of course a customer will be put to severe mental agony and suffering when a brand a new product shows the signs of defect on the first day of purchase itself.

Therefore the complaint is allowed and the opposite party is directed to return Rs.8500/- that he collected from the complainant towards the price of the mobile phone with a compensation of Rs.2500/- towards the mental agony and sufferings caused to the complainant with a cost of Rs.1500/-. On receipt of the said amount the complainant shall return the defective mobile phone to the opposite party and obtain the receipt Had the opposite party got a grievance that it is the manufacturer who has to pay the amount, then opposite party can recover the said amount paid to the complainant from the manufacturer of the mobile phone through appropriate legal proceedings.

Vijaykumar S/o Basawarajappa Patil,

Age: 35 years, Occ: Agriculture,

R/o Plot No.183, Mahaveer Nagar,

Gulbarga.

// Versus //

OPPONENT:- 1. Universal Tele Communications India Pvt. Ltd.,

Door No.7, Super Market,

Gulbarga.

2. Nokia India Pvt. Ltd.,

II Floor, Commercial Plaza,

Radisson Hotel, N.H.8, Mahipalpur,

New Delhi-110 037.

3. Nokia Priority Dealer,

Main Road,

GULBARGA.

: : O R D E R : :

1. This is a complaint filed by the complainant by name Vijaykumar against the O.P.Nos.1 to 3 u/s.12 of Consumer Protection Act for to direct the O.Ps. to replace the defective mobile instrument with a new one or to refund Rs.13,300/- with interest @ 18% and to award Rs.5,000/- towards mental agony with interest @ 18%.

2. The brief facts of the complainant case are that;

He purchased Nokia N-73 Music Black (2 GB) having No.353548022754783 mobile set from O.P.No.1 for sum of Rs.13,300/- vide invoice dated 11.7.2008, thereafter the mobile set was not functioning properly. He approached O.Ps., but they refused to attend the repairs within the warranty period. The said mobile set is with the O.P.No.1. The act of O.P. amounts to unfair trade practice, hence he filed this complaint praying to award compensation as prayed in the complaint.

3. O.P.No.1 to 2 appeared in this case through their respective advocate, filed their Written version separately. Though notice served to O.P.No.3, he did not appear, hence he was placed exparte.

4. O.P.No.1 contended in his written version by denying the allegations of complainant. According to him, he sold mobile set on 11.7.2008, but denied that the said mobile set was having manufacturing defect and approaching by complainant to him. He further stated that, he sells mobile sets, chargers and do not take the work of repair and will not give any warranty on the products sold. As per the provisions and conditions embodied in the receipt, the responsibility of warranty and repairs is of O.P.No.2 and 3. Complainant has not surrendered the mobile set as alleged in the complaint. Under these circumstances, it is submitted that, complaint may be dismissed with costs.

5. O.P.No.2 contended in his written statement that, every handset device gives user manual wherein 12 months limited warranty conditions are mentioned. If accrues any defects/faults in its material, designs and workmanship, the remedy to the same would be provided at the Authorized Service Centre, free of charge, if the product is still within the specified warranty period. The complainant never approached the Authorised Service Centre with alleged fault in the handset as the complainant failed to adduce any documentary evidence showing that the said mobile set was having manufacturing defect. The complainant had never visited the Authorized Service Centre with specific faults in the handset as the same is not supported by any documentary evidence such as Job sheets. Hence, it is prayed that, complaint may be dismissed with costs.

6. To prove the claim of complainant, himself was filed affidavit by way of evidence who examined as PW-1, document got marked Exh.P-1. O.P.No.1 also filed affidavit by way of cross of PW-1. Complainant side evidence closed. O.P.No.1 filed affidavit by way of evidence, who examined as RW-1, no documents are filed in support of his claim. O.P.No.2 has not filed any affidavit nor filed any documents. Complainant filed affidavit by way of cross of RW-1. O.Ps. side evidence closed.

7. Heard the arguments from both sides.

8. In view of the pleadings of the parties, now the points that arises for our consideration and determination are that,

(1) Whether complainant proves that, he purchased the Nokia N-73 mobile set from O.P.No.1 for sum of Rs.13,300/- vide invoice dated 11.7.2008, thereafter the said mobile set not working properly, he approached O.Ps., but they refused to attend the repair work and thereby they found guilty under deficiency in their services?

(2) Whether complainant is entitled for the reliefs as prayed in his complaint?

(3) To what Order?

9. Our findings on the above points are as under;

(1) In Affirmative.

(2) In Affirmative.

(3) In view of the findings on Point Nos.1 and 2, we proceed to pass the final order for the following;

: : R E A S O N S : :

10. Point No:1 and 2 :

It is the case of the complainant that, he purchased the said mobile set from O.P.No.1 which is not disputed. Thereafter the said mobile set is not working within guarantee period, he approached O.P.No.1 and 2, they refused to attend repair works. The said mobile set is with O.P.No.1.

11. In the instant case, O.Ps. contested the case through out the proceedings as, complainant has not produced any expert evidence to prove his case. On going through the affidavit evidence of complainant, it reveals that, O.Ps. have not repaired the said mobile set. Now the said mobile set is with the O.Ps.

Under the said circumstances, experts opinion is not necessary. But the O.Ps., keeping the mobile set with them prior to the filing of this case and during entire proceedings of this case, they ought to have repair the said mobile set, but they have not done any repairs, as such we are of the view that, O.Ps. are guilty under deficiency in service on their part. In view of facts and circumstances stated above, complainant is entitled to recover a sum of Rs.13,300/- towards the cost of the mobile set. We have noticed the deficiency in service on the part of O.Ps., accordingly complainant is entitled to get a sum of Rs.2,000/- recoverable from O.P.Nos.1 to 3 jointly and severally under the head of deficiency of service of these O.Ps., accordingly we answered Point No.1 and 2 in Affirmative.

12. Complainant is also entitled to recover an amount of Rs.2,000/- from the O.Ps. jointly and severally towards cost of this complaint.

13. Point No.3 :

In view of the findings on Point Nos.1 and 2, we proceed to pass the following;

: : O R D E R : :

Complaint filed by the complainant is partly allowed with cost. Complainant is entitled to recover total sum of Rs.17,300/- with interest @ 9% per annum from the date of filing of this complaint till the date of realization of the full amount from the O.P.Nos.1 to 3 jointly and severally. O.P.Nos.1 to 3 are hereby given one month time from the date of this Order to pay the said sum to the complainant.

Mr. Vijaya,

S/o. Mudhara M.,

Aged about 32 years,

Krishnapura, 9th block,

Site No.3, D.No.9 II,

Mangalore. …….. COMPLAINANT



(Advocate: Sri. Deenanath Shetty).



VERSUS



1. The Authorized Signatory,

M/s. Balaji Electronics,

Opp: Classic Colour Lab,

Balmatta Road, Hampankatta,

Mangalore.



(Opposite Party No.1: left).



2. The Authorized Signatory,

Nokia Care, Numerics Mobile Point,

2 Essel Tower, Bunts Hostel,

Mangalore.



(Opposite Party No.2: Exparte).



3. The Authorized Signatory,

Managing Director,

M/s. Nokia India Pvt. Ltd.,

(Registered Office), is housed in

Commercial Plaza, N.H. 8,

Hotel Radisson, Mahipalpur,

Delhi.



(Advocate for Opposite Party No.3: Sri.K.Nikesh Shetty).



4. The Authorized Signatory,

NOKIA CARE,

Metro Telecom,

Mart Chambers, Falnir Road,

Mangalore – 575 001. ……. OPPOSITE PARTIES


The Complainant submits that, he had purchased Nokia mobile handset on 5.12.2006 from the 1st Opposite Party and paid a sum of Rs.10,700/- and Opposite Party No.1 and 2 are the authorized dealer of Nokia Handset and Opposite Party No.3 is a manufacturer and Opposite Party No.4 is the authorized service centre.

The Complainant submits that, within a short period of 4 months of its purchase the above handset developed bothersome problem and handed over the handset for repair to Opposite Party No.4 as per service job sheet dated 19.4.2007, 8.5.2007, 23.5.2007, 13,7.2007 and 14.7.2007. In view of the above defects the Complainant filed a complaint before this Hon’ble Forum and the same has been registered as 307/2007 and the same was closed and thereafter preferred 2nd complaint which was numbered as 216/2008 which was settled in Lok Adalath held on 7.11.2008 and the Opposite Party No.1 agreed to replace the mobile set with a new one and the Complainant had returned the former mobile set as he had purchased from the Opposite Party No.1.

The Complainant submits that the mobile set received from the Opposite Party No.3 also proved to be defective again and same could not be charged up and the Complainant was constrained to entrust the said mobile set to Opposite Party No.4 on 8.11.2008. It is contended that the handset supplied by the Opposite Parties are defective and filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Parties to refund a sum of Rs.12,700/- with interest at 10% from 6.12.2006 till the date of payment and further Rs.15,000/- claimed as compensation and cost of the litigations expenses.

2. Version notice served to the Opposite Parties by RPAD. Opposite Party No.2 and 4 despite of serving notice neither appeared nor contested the case till this date and hence proceeded exparte. The acknowledgement placed before the FORA marked as court document No.1 and 2. The steps against Opposite Party No.1 was not taken and the claim against Opposite Party No.1 is not pressed by the Complainant.

Opposite Party No.3 filed vakalath through his counsel one Nikesh Shetty, Advocate Mangalore but not filed any version nor led any evidence in this case.
3. In view of the above said facts, the points now that arise for our consideration in this case are as under:

(i) Whether the Complainant proves that the mobile handset replaced by the Opposite Party No.3 in complaint No.216/08 with fresh warranty is proved to be defective?

(ii) If so, whether the Complainant is entitled for the reliefs claimed?

(iii) What order?

4. In support of the complaint, Mr.Vijaya (CW1) filed affidavit reiterating what has been stated in the complaint and produced ten (10) documents as listed in the annexure. Opposite Parties not filed version and counter affidavit. We have heard and perused the pleadings, documents and evidence placed before the Hon'ble Forum by the Complainant and answer the points are as follows: Point No.(i): Affirmative.

Point No.(ii) and (iii): As per the final order.

REASONS

5. Point No. (i) to (iii):

It is not in dispute that the Complainant purchased a mobile handset of Nokia Company Model 6125 on 8.12.2006 from the 1st Opposite Party as per tax invoice bearing No.5845 for Rs.10,700/- (as per document No.1). It is also not disputed that the above handset developed problem and handed over the set for repair to Opposite Party No.4 as per service job sheet dated 19.4.2007, 8.7.2007, 23.5.2007, 13.7.2007 and 14.7.2007. In view of the above defects the Complainant filed a complaint before this Hon'ble Forum and the same has been registered as 307/07 and the same was closed and thereafter preferred 2nd complaint which was numbered as 216/2008 which was settled in Lok Adalat held on 7.11.2008 and Opposite Party No.1 replaced the mobile set with a new one and the Complainant had returned the former mobile set to the Opposite Party No.1.

Now the allegation of the Complainant is that, the handset replaced by the Opposite Party No.1 has inherent defect that the body of the mobile set failed to receive electrical charge consequently the same could not be charged up. When the Complainant approached the Opposite Party No.4 and the Opposite Party No.4 appraised that the handset required to be sent their main authorized concern in Bangalore and it requires to be retained for the purpose of detecting more than 60 days and further told by the Opposite Party No.4 that they could not extend any guarantee as to rectifying the inherent defects existing in the mobile set.

In order to prove the case of the Complainant, the Complainant relied document No.1 to 10. On careful scrutiny of the documents produced by the Complainant before the FORA it is proved that the Complainant admittedly purchased mobile handset on 5.12.2006 as per document No.1 and subsequently the above handset developed inherent defects and the Complainant filed the complaint before this Hon'ble Forum. In complaint No.216/2008 the matter was settled in adalat on 7.11.2008 by replacing the mobile handset bearing model No.5310 to the Complainant as per document No.10.

The memo filed by the parties in complaint No.216/08 produced before the FORA in order to prove the same. The service job sheet dated 10.11.2008 i.e., document No.9 produced by the Complainant reveals that the replaced mobile handset bearing model No.5310 has a fault of enhancement charging/battery. From the above service job sheet it is proved again that the replaced handset also developed certain problem within two days from the date of replacement.

From the above set of facts, it is proved that the above handset given for repair to the Opposite Party No.4 and the problems noticed within two days from the date of replacement after settling the matter in dispute in complaint No.216/2008. It appears on record that, the above complaint was filed on 16.01.2009 before this Hon'ble Forum i.e., after two months from the above settlement in complaint No.216/2008.

It is a settled position that, a person purchases a new handset only for his use and not to suffer the inconvenience of repeated visits to the workshop and frequent deprivation of the use of the handset due to such snags. Similarly in the present case, the Complainant purchased the handset for Rs.10,700/- initially and the same has been proved to be defective and thereafter the Complainant came up with the complaint before this FORA and ultimately in complaint No.216/2008 the parties were settled the matter by replacing the new mobile handset before the adalat held on 7.11.2008 by filing a joint memo. But the same set again proved to be defective, it shows the quality and standard of manufacturing of the replaced product by the Opposite Parties and the handset supplied by the Opposite Parties has some fault and not upto the standard.

In view of the aforementioned discussions, we are of the considered opinion that replaced handset also proved to be defective. Under such circumstances, once again giving direction to replace the handset will not meet the ends of justice. Hence we hereby direct the Opposite Party No.1 and 3 to refund the entire amount of Rs.10,700/- to the Complainant. At the same time the Complainant is hereby directed to return the entire handset to the Opposite Parties along with accessories. And further Rs.2,000/- awarded as compensation for the inconvenience and the harassment caused to the Complainant and Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

There is no deficiency of service proved against Opposite Party No.2 and 4. Hence complaint against Opposite Party No.2 and 4 is hereby dismissed.

6. In the result, we pass the following:


ORDER

The complaint is allowed. Opposite Party No.1 and 3 are hereby directed to refund the entire amount of Rs.10,700/- by taking back the old handset with accessories from the Complainant. And further Rs.2,000/- awarded as compensation and Rs.1,000/- awarded as cost of the litigation expenses. Payment shall be made within 30 days from the date of this order.

S.C.Patil

77, Govindappa Road,

Basavanagudi,

Bangalore – 560 004.

…. Complainant.

V/s



01. NOKIA CARE,

# 652, 11th Main Road,

1st Floor, 4th Block Jayanagar,

Bangalore – 560 011.

Tel No.4121 – 1151.



02. The Care Manager

NOKIA INDIA PRIVATE LIMITED

5F, Tower A & B, Cybergreen,

DLF Cyber City, Sector 25A,

Gurgaon – 122 002.

HARYANA.

…. Opposite Parties



-: ORDER:-



This complaint is for a direction to the Opposite Parties to refund Rs.9,250/- being the price of the MOBILE HANDSET purchased by the complainant.

2. The case of the complainant is as under:-



The complainant purchased MOBILE PHONE MODEL NOKIA 5310 – Xpress Music through an authorized Nokia dealer at Gandhi Bazar Main Road, Basavanagudi on 11/09/2008. Some time after the purchase, he noticed the following problems in the MOBILE HANDSET.

01. Missed calls are not registered on the screen,

02. Telephone starts flashing after a incoming call is disconnected,

03. The alarm does not function properly, and

04. The volume at the maximum setting is very feeble can be hardly heard in the office.



He gave the handset to Opposite Party No.1 – the authorized service center for repairs on two occasions namely 04/11/2008 and 12/11/2008. On both the occasions, the service center employee assured him that the defects are attended to. But the same problems still persisted. He also sent a complaint to Opposite Party No.2 - the manufacture of the MOBILE HANDSET on 22/12/2008, 26/12/2008 and 05/01/2009, but did not receive any response. Hence, the complaint.



3. In the version, the contention of Opposite Party No.1 – the authorized service center is as under:-



They received the MOBILE HANDSET from the complainant on 04/11/2008 for repairs. The reported complaints were “Switchess off, Ringtone Problem, Alarm not working & system slow. The problems were rectified and the handset was returned to the complainant in good working condition. After few days, the complainant again approached them with the problem “Phone restarts and when goes to alarm option automatically keypad locks and not showing missed call indication”.


The handset was taken for repairs, the same was checked and found that the handset was working fine and accordingly it was delivered to the complainant. A few days thereafter they received complaint from the Customer Care (Care Line) that the Customer is not satisfied with the service and wants to go legally. Therefore, they called the customer over phone to solve the issue and informed that they are ready to replace the new handset, but the complainant refused to speak with them in that regard. Therefore, there is no deficiency in service on the part of Opposite Party No.1 and as such the complaint is liable to be dismissed.



4. On service of notice, Opposite Party No.2 – the manufacture of the handset appeared through counsel, but in spite of sufficient time granted failed to file the version and to participate in the proceedings.



5. In support of the respective contentions, the complainant and Opposite Party No.1 have filed affidavits. We have heard the arguments on both side.



6. The points for consideration are:-

1. Whether the complainant has proved deficiency in service on the part of the Opposite Parties?



2. Whether the complainant entitled to the relief prayed for in the complaint?



Point No.(1) : In the Affirmative

Point No.(2) : As per final order,

for the following:-



-:REASONS:-

7. The fact that the complainant had purchased the NOKIA MOBILE HANDSET on 11/09/2008 and within about two months thereafter he had given the handset to Opposite Party for repairs on 04/11/2008 and 12/11/2008 is not denied. It is the contention of the complainant that even though the handset was given to Opposite Party No.1 for repairs on two occasions, the same problems are still persisting in the mobile handset and therefore the defects are not rectified. As against this, the contention of Opposite Party No.1 is that on both the occasions all the problems in the handset were attended to and the mobile handset was returned to the complainant in good working condition.


If that is so, there was no reason for the complainant to approach the manufacturer of the mobile handset namely Opposite Party No.2 with the complaint dated 22/12/2008 making the same allegations as alleged in the complaint. It is also admitted by Opposite Party No.1 that after the complainant approached Opposite Party No.2 the manufacturer through the complaint dated 22/12/2008 they were informed about the same and thereupon they called upon the complainant to solve the issue and also informed that they are ready to replace the handset, but the customer refused to speak with them in that regard.


This admission on the part of the Opposite Party makes it clear that even the manufacturer admits the defects in the handset and therefore offered to replace the same with a new one. If the Opposite Parties are ready to replace the mobile handset purchased by the complainant with a new handset, the complainant is not entitled to seek refund of the price paid for the mobile handset. Therefore, in our opinion, it is just and proper to direct Opposite Parties to replace the mobile handset purchased by the complainant with a new defect free handset. In the result, we pass the following:-

-:ORDER:-

1. The complaint is ALLOWED.
2. The Opposite Parties are directed to replace the MOBILE PHONE purchased by the complainant with a new defect free MOBILE PHONE and pay costs of Rs.1,000/-.
3. Compliance of this order shall be made within eight weeks from the date of communication.
4. Send a copy of this order to both parties free of costs, immediately.
5. Pronounced in the Open Forum on this the 09th Day of JULY 2009.

I want my cell phone replacement,
My First Job Sheet No. 145433527/090826/13 Dated 26.08.09 and second Job Sheet No. is 145433527/090928/11. Date 28.09.09

I bought a Nokia 7610 Supernova phone from M.K. Enterprises, Moti Bagh, New Delhi, ESN/ EMEI No. is 359331026289898. Purchase Date 17-07-2009, After using for 1-2 Week I found that my handset was hanging frequently then on one day its keypad was not working, Camera was not working properly, then on 26/07/2009 I visited their service center at K N Services, Corner Market, Malviya Nagar, New Delhi, After repair. I got the phone and when checked, found that they have nothing, means same problem persist so far. And again I submitted my phone Dated 28.09.09, but I don’t want repair, I want only replacement,
I have expand too much for this mobile and I don't expect this kind of service from NOKIA, now I don't want to give it again to service center and want my cell phone replaced either with the same set or, if this kind of problem is there with all 7610 , then replace it with other Nokia set.

I am also planning for registering complaint in Consumer court regarding the services.

Thanks,
Pradeep Arya
9310041449

Pls Sir, Help Me

Sh.Ravinder Guleria son of Sh. Megh Singh Guleria resident of village Manyana, Post Office Tilli, Tehsil Sadar, District Mandi, H.P.

…Complainant



V/S



1. Divyam Communication Shop No.52/53 Indira

Market Mandi Town, District Mandi, H.P. through its proprietor

2. India Nokia Centre c/o Nokia India Pvt Ltd J-4

Block Mohan Co-operative Industrial Area Delhi 30303838 through its Managing Director .












ORDER.

This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986( hereinafter referred to as the “Act”) instituted by the complainant against the opposite parties . Brief facts of the complaint as set up by the complainant are that he purchased a Nokia 5310 Mobile set bearing IMEI No. 358653014905586 vide cash memo No.6699 on 11-4-2008 for Rs.8950/- from the opposite party No.1 being dealer of the opposite party No.2.


The mobile set was provided warranty of one year as per cash memo Annexure C-1. After 15 days from the purchase of the set in question, it turned out of order and this fact was brought to the notice of the opposite party No.1 who carried out some repair and told that the mobile set is having some inherent manufacturing defect and will be replaced with new one after negotiation with the opposite party No.2. The complainant alleged that the mobile set again turned out of order on various occasions and same was repaired and was assured to replace the same . The complainant served the opposite parties with legal notice requesting to replace the mobile set in question but neither the notice was responded nor mobile replaced .


The complainant further alleged that he visited the opposite party No.1 on 21-4-2009 and asked to do the needful then opposite party No.1 asked the complainant to hand over the set to them for repair and orally told that Rs.1000/- would be charged for repair and when he refused to pay repair charges by saying that it covers under warranty then he was told that the warranty had already expired on 11-4-2009. The complainant averred that he was under the impression that he had purchased the mobile on 11-5-2008 and warranty will expire on 11-5-2009 and for this reason there is delay of ten days in filing the complaint. With these allegations the complainant had sought direction to the opposite parties to replace the mobile had set with new one of same price or refund Rs.8950/- with interest at the rate of 12% per annum from 11-4-2008 till payment and also to pay Rs.20,000/- as compensation apart from costs of litigation.

2. The opposite parties were duly served but failed to contest the complaint and were proceeded against exparte

3. We have heard the ld. counsel for the complainant and have carefully gone through the record. The case of the complainant is that he has purchased a Nokia mobile phone of model No.5310 bearing IMIE No.358653014905586 from the opposite party No.1 vide cash memo No.6698 dated 11-4-2008 in the sum of Rs.8950/- but the same turned out of order after 15 days of the purchase of the set .The complainant approached the opposite party No.1 and this fact was brought to its notice who carried out some repair and told that the set was having inherent manufacturing defect and would be replaced with new one after negotiating with the opposite party No.2. The mobile set developed defects time and again and every time the complainant was assured to replace the same but in vain.


The complainant also alleged that he had served the opposite parties with legal notice but the same was also not responded. The complainant in support of his complaint has filed photocopy of cash memo Annexure C-1 which shows that the set in question was purchased in the sum of Rs.8950/- from the opposite party No.1. Copy of legal notice Annexure C-2 alongwith receipts Annexure C-3 had also been tendered in evidence which also reflect that the opposite parties were duly apprised about the defect in the mobile set but no action was taken . Not only this , the complainant had also adduced in evidence photocopy of the receipt given by the opposite party No.1 on account of receipt of mobile set for repair which is Annexure C-4 .The complainant has also filed his own affidavit by way of evidence .


The opposite parties have failed to contest the complaint and were proceeded against exparte which shows that they have nothing to say in the matter except to admit the averments made in the complaint. As discussed above, the opposite parties have not contested the complaint , therefore , we have no reason to disbelieve the version of the complainant which is duly supported by means of affidavit that the set is defective one and it has developed defect during the warranty period and the opposite parties have failed to repair it. The complainant has proved that the set in question has been purchased by him from the opposite party No.1 who is dealer of opposite party No.2. Therefore , we hold that the opposite parties are liable to replace the set with new one and also to compensate the complainant on account of harassment suffered by the complainant .

4 In view of above discussion , the complaint is allowed and the opposite parties are jointly and severally directed either to replace the defective mobile set of the complainant or refund its price i.e. Rs.8950/ - within a period of one month from today . The opposite parties are also directed to pay Rs.500/- on account of compensation for harassment and Rs.500/- as costs of complaint.

10 Copy of this order be supplied to the parties free of cost as per Rules.

11 File, after due completion be consigned to the Record Room.

Sukhwinder Singh son of Sh. Assa Singh, resident of 126, Industrial Area-A, ,Ludhiana. Ludhiana.

(Complainant)

Vs.



1. M/s Dhawan Electronics, Shop No.14, Oswal Market, Suffian Bagh Chowk, Ludhiana, through its Partner /prop. Officer Incharge.



2. M/s Mobile Super Market, Re-Distributors & Stockists: Nokia India ltd., Regd. office: 134, new Model Town, Ludhiana-2, through its partner/Prop.

Second Address: M/s mobile Super Market, Re-Distributors & Stockists: Nokia India Ltd. Showroom: 3073-Malhar Road, Ludhiana-1, through its partner/Prop.



3. M/s Nokia India Pvt. Ltd. 2nd Floor, Commercial Plaza, Radisson Hotel, NH-8, Mahipalpur, New Delhi-37 through its Manager.



(Opposite parties)






O R D E R



1. Complainant purchased Nokia Mobile hand set model no. 1208 Black, IMEI No.358097013700632 vide bill no.82 dated 19.12.2007 from opposite party no.1 for Rs.2900/-. After purchase, complainant was astonished to know that maximum retail price of the mobile set was Rs.2345/-. Opposite party no.1 by resorting to unfair trade practice, charged him Rs.2900/-. Thereafter, in presence of his friend Sh. Baljit Singh requested to opposite party no.1 to refund excess price charged but he abused him in defamatory language. Such act of opposite party caused him agony, harassment and loss of money. Also served legal notice to all the opposite parties but to no effect. Therefore, for such deficiency in service in, this complaint under section 12 of the Consumer Protection Act, 1986, has claimed compensation of Rs.50,000/- and litigation cost of Rs. 10,000/- from opposite parties and also claimed refund of excess amount of Rs.555/- with 18% interest per annum.

2. Opposite party no.1 in reply averred that complainant has filed false claim on fabricated allegations. Mobile set was purchased by the complainant after perusing maximum retail price (MRP) printed on mobile box. Cost of the mobile set was Rs. 2345/- and balance was charged for availing free Airtel prepaid sim card with life time validity. This offer was jointly made from Airtel and Nokia. Mobile set was also available without scheme. But the complainant opted to purchase the mobile hand set along with scheme. So, they never resorted to unfair trade practice and the complainant was not harassed nor entitled for any compensation or relief.

3. Opposite party no.2-distributor of mobile hand set vide separate reply claimed that complainant never purchased mobile set from them nor got it repaired against any consideration, so, complaint against them is not maintainable and the same being frivolous deserves to be dismissed. Rest all the allegations stand denied by them for want of knowledge.

4. Defence of opposite party no.3 was struck off when failed to file written reply.

5. In order to prove their respective versions, parties adduced their evidence by way of affidavits and documents.

6. We have heard the arguments addressed by ld. counsel for the parties and have gone through file, scanned the documents and other material on record.

7. Sole question to be determined is whether opposite party no.1 resorted to unfair trade practice by charging Rs. 555/- in excess than MRP (maximum retail price) printed on the mobile box.? Because, opposite party no.1 has admitted charging that amount from the complainant. But defence is that he never resorted to unfair trade practice, as in addition to price of the hand set, cost of new SIM amounting to Rs.555/- was charged under scheme of Airtel Prepaid Sim Card with life time validity.

8. Therefore, we are required to adjudge and conclude whether under the scheme jointly formulated by Nokia and Airtel, complainant was required to pay activation charges, in addition to price of the hand set. Complainant in support of his plea has filed affidavit Ex.CW1/A and OP-1 in rebuttal has filed affidavit RA/1. Though opposite party no.2 through Sh. Jaspal Singh has also filed affidavit RW2/A to the affect that there is no deficiency in service on their part and they have been unnecessarily impleaded. At this stage, we may say that plea of opposite party no.2 appears to be plausible. As service centre of manufacturer and the firm was impleaded without any necessity nor any deficiency on their part is alleged. No compensation from them is claimed.

9. As in respective affidavits, both the complainant and opposite party no.1 have taken different stand, so, the dispute deserves to be settled in the light of documentary evidence on record.

10. As per invoice Ex.C.1 dated 19.12.2007 opposite party no.1 received Rs.2900/- as cost of Nokia 1208 Black mobile hand set. He no where in said invoice mentioned that the cost so received, include price of SIM ( mobile number 9878859594) assigned to purchased mobile set of the complainant. Whereas Ex, C.2, print of mobile box clearly reflects that all India price of the mobile set was Rs.2349/- inclusive of all taxes. The same handset was purchased by the complainant under the scheme jointly floated by Nokia and Airtel and photocopy of such scheme is Ex.C.5. It is mentioned in this copy Ex.C.5 that “free airtel prepaid sim card with life time validity.”

11. So, it appears that under the scheme, on purchase of Nokia mobile set no.1208, a customer was made entitled to free Airtel prepaid sim card. If sim card was made available free, it is not digestible or acceptable that despite such offer vendor of mobile hand set could have charged the customer for activation charges or cost of SIM card. Because, such aspect could have damaged and infringed spirit of offer of providing free Airtel prepaid sim card with life time validity. Once on purchase of mobile set, free pre paid sim is provided, it shall means that it is provided free of costs or charges. This offer was subject to following condition:

“Bundle offer benefits shall be withdrawn if the SIM or handset is used separately. The company also reserves the right to take appropriate legal action in such cases.”



This offer was available till lasting stock and offer was not valid if bundled sim is purchased without handset.

12. It means, to promote the sale of mobile phones as well as to attract more Airtel consumers, both the Companies had entered into an agreement to boost their business. Consequently, when sim card of the Airtel was provided free of cost, it does not now lie in the mouth of opposite party no.1 to say that price of the sim card was received by charging Rs.555/- with life time validity. This plea goes against the spirit of scheme jointly floated by Airtel and Nokia.

13. In such circumstances, we believe the claim of the complainant that opposite party no.1 resorted to unfair trade practice by charging extra amount of Rs.555/- from him while selling the mobile hand set.

14. As a result of the discussions, apparent that opposite party no.1 is proved to have resorted to unfair trade practice by cheating and extracting extra money of Rs.555/- from complainant while selling mobile set worth Rs.2345/- by charging him Rs.2900/-. Therefore, complaint allowed and opposite party no.1 is directed to refund Rs.555/- to the complainant with interest @9% per annum from the date of sale of the mobile hand set i.e. 19.12.2007 till payment and for resorting to unfair trade practice ordered to pay compensation of Rs.2500/-(Rs. Two Thousands and Five Hundreds only) and litigation costs assessed at Rs.1500/-(Rs. One Thousand and Five Hundred only) Compliance of the order be made within 45 days of the receipt of copy of the order, which be made available to the parties free of costs. File be completed and consigned to record.

Hi,

i bought mobile in two days before the mobile store in kodambakkam.

The mobile facing main screen touch is not working .what can i do .Kindly give proper reason.

Thiru K. Selvaraj,

S/o. Kuppusamy,

Theerthampalayam,

Manapalli Post,

Paramathi-Velur Taluk,

Namakkal District. .. Complainant



/versus/

Phonicks,

Nokia Priority Dealer,

by its Power of Salesman,

224, Main Road,

Near Manikoondu,

Namakkal. … Opposite party







ORDER





1. The crux of the complaint is:-

The complainant on 12.03.2007 purchased a Nokia mobile phone Model No.6070 for Rs.5,000/- from the opposite party vide receipt bearing No.2133. The said mobile phone became defective and on 14.05.2007 the complainant reported the same to the opposite party who received the same for rectification of the same and after one month they gave the same assuring that the defect has been rectified. Again within a week again the said mobile phone’s loud speaker became defective on 16.06.2007 the same was handed over to the opposite party 2nd time for rectifying the defect. The opposite party returned the phone after one week stating that the defect has been rectified.


But within 4 days the same problem surfaced and again on 25.06.2007 the mobile phone was handed over to the opposite party to rectify the defects. The opposite party after 25 days returned the mobile phone assuring that the defects has been rectified. But the defects was not rectified to the satisfaction of the complainant hence he requested the opposite party to take back the mobile and return the amount paid by him. The Complainant hence handed over the mobile to the Opposite Party on 13.08.2007 and receipt to the effect was issued by the Opposite party.


At the same time the opposite party took back all the 3 receipts earlier issued by them at the time of rectifying the defects. The cost of the mobile phone was not returned by the opposite party. The complainant then sent a lawyer notice but in vain. The Complainant was not able to use his mobile after paying Rs.5,000/-to the opposite party and as a result he had suffered mental agony. The complainant had alleged that the opposite party has sold defective mobile phone to him and has lodged this complaint for return of the cost of mobile phone, compensation, cost etc.

2. The Complainant to prove his case has filed proof affidavit along with 4 documents and the same has been marked as Ex.A1 to Ex.A4.

3. The point for consideration is:-

Whether the opposite party has sold defective mobile phone

to the complainant and if so to what relief the complainant

is entitled for?

4. POINT:- The complainant on 12.03.2007 purchased a Nokia mobile phone Model No.6070 for Rs.5,000/- from the opposite party vide receipt bearing No.2133. The Complainant to prove the same has produced and placed before us the cash receipt issued by the Opposite Party as Ex.A1. The said mobile phone became defective and on 14.05.2007 the Complainant reported the same to the Opposite Party who received the same for rectification of the same and after one month they gave the same assuring that the defect has been rectified. Again within a week again the said mobile phone’s loud speaker became defective on 16.06.2007 the same was handed over to the opposite party 2nd time for rectifying the defect. The opposite party returned the phone after one week stating that the defect has been rectified. But within 4 days the same problem surfaced and again on 25.06.2007 the mobile phone was handed over to the Opposite Party to rectify the defects. The opposite party after 25 days returned the mobile phone assuring that the defects has been rectified.


The Complainant has not produced and placed before us any documentary evidence to support that the mobile was handed over to the opposite party for rectifying the defects thrice. But the defects was not rectified by the opposite party to the satisfaction of the complainant hence he requested the opposite party to take back the mobile and return the amount paid by him. The Complainant hence handed over the mobile to the Opposite Party on 12.08.2007 and receipt to the effect was issued by the opposite party. The said receipt has been produced and marked as Ex.A2 by the complainant. A perusal of the Ex.A2 establishes that the mobile was defective. The cost of the mobile phone was not returned by the opposite party.


The complainant has issued lawyer notice and the opposite party has received the same and no reply was sent by the opposite party. The complainant has produced the lawyer notice and the acknowledgement card as Ex.A3 and Ex.A4. The purchased of mobile phone and the subsequent defects has been established by the Complainant through documentary evidences. It can be evidence from Ex.A2 that mobile phone is lying with the opposite party. In the above circumstances we have no hesitation to hold that the opposite party has sold defective mobile phone to the Complainant.


Further the opposite party has take back the mobile phone and has neither replaced the same with brand new mobile phone or returned the cost of the mobile phone paid by the Complainant. The act of the opposite party is deficiency in service coupled with unfair trade practice. The complainant had surrendered the mobile phone to the opposite party and as such he would not able to use his mobile after paying Rs.5,000/- to the opposite party and this would have definitely caused mental agony to the complainant and as such the complainant is entitled for compensation.

6. In the result, the complaint is allowed and the opposite party is directed to refund Rs.5,000/- paid to the complainant for the mobile phone. Further the opposite party is directed to pay Rs.2,000/- to the complainant as compensation for mental agony and Rs.1,000/- as cost of the complaint. Time for payment one month from the date of this order.

Sri Sujit Kumar Sarkar,

2/57A, Sree Colony, Regent Estate,

Kolkata-700092. ---------- Complainant

---Verses---

1) Nokia Care,

37, Shakespeare Sarani,

Kolkata-700017. ---- Opposite Party








The complainant filed this petition u/s 12 of the C.P. Act, 1986 alleging the deficiency of service caused by the o.ps. by not repairing the mobile hand set of Nokia make, model no.32308 IMEI no.355694009547671, purchased by him on 30.3.06 on payment of Rs.9800/- from o.p. no.2. After purchase of the same, within 5 ½ month the mobile set went out of order and he took it to the o.p.no.1, Nokia Care, on 19.9.06, which was returned back to him on 1.11.06 without doing any repairing work as it appears in the jobsheet attached with the complaint/petition. Although in the jobsheet, in the column ‘Repaired done’, the remark is ‘Module Tempered Return without Repair’. As the set was within the warranty period, the complainant took it to the o.p. no.1 for necessary repairing work. But o.p. no.1 refused to do that on the plea that the set was tampered, which according to the complainant is totally false, since the set was within the warranty period, he had not given it to anywhere else other than the Nokia Authorized Service Centre, i.e. o.p. no.1.


After that, the set was taken to o.p. no.2 Pentagon Centre for necessary repairing work. But o.p. no.2 also refused to do anything. Then the complainant lodged a complaint with Consumer Forum, Bhavani Bhawan and on their persuasion, o.p. no.2 repaired the set twice with an extended warranty but both the times the hand set stopped working within few hours. And finding no other alternatives, the complainant filed this petition praying for a direction to be given upon the o.ps. to replace the set by a set of similar value and quality, to pay a compensation of Rs.50,000/- for the harassment and inconvenience caused to him due to deficiency of service on the part of the o.ps. along with cost of proceedings. Notices were served upon the o.ps. None appeared. No w/v was filed by either of the o.ps.

Decision with reasons :

By purchasing a mobile hand set, the complainant becomes a consumer of o.p. nos.1 and 2. O.p. no.1, Nokia Care did not repair the hand set in spite of the fact that the set was within the warranty period. And from the ‘Service Jobsheet’ dt.19.9.06 given by o.p. no.2, it appears that the endorsement of ‘Set Tampered’ was made on 25.10.06, although any noting of any sort tampering in the set should have been noticed and endorsed on the very day when it was given for repairing, i.e. on 19.9.06. and under the column ‘Reported Fault’, it is written ‘Power : Doesn’t Switch On’. And the complainant was asked to take the delivery of the set after ten days. But after ten days, o.p. no.2 took a further time to repair the same, and even at that point of time, o.p. no.2 never told the complainant that the set was tampered.


They mentioned it on the jobsheet only on 25.10.06 while returning it to the complain ant without doing any repairing work. Here, the o.p. no.2 is found guilty with malafide intension to harass the complainant. Moreover, no written version is filed by either of the o.ps. Hence, there is nothing to disbelieve the unchallenged testimony of the complainant. And o.p. no.1 also did not render their services to the complainant and o.p. no.1 was found deficient in providing service by not repairing the mobile set, which went out of order within 5 ½ months of its purchase. Accordingly, we hold both the o.ps. are deficient in providing service to the complainant.

Hence,

Ordered,

That the o.p. no.2 is directed to replace the mobile hand set in question of similar value i.e. of Rs.9800/- (Rupees nine thousand eight hundred) only and of same and similar quality on receipt of defective mobile hand set in question and o.p. no.1 and o.p. no.2 jointly and severally are directed to pay compensation to the tune of Rs.5000/- (Rupees five thousand) only along with a litigation cost of Rs.500/- (Rupees five hundred) only. The o.ps. are directed to comply the order within one month from the date of communication of this order, in default, it will carry an interest @ 10% p.a. till full realization. Fees paid are correct.