DISTRICT CONSUMER DISPUTES REDRESSAL FORUM MYSORE

No.845, 10th Main, New Kantharaj Urs Road, G.C.S.T. Layout, Kuvempunagar, Mysore - 570 009

consumer case(CC) No. CC/09/5

Sri. Kumar,
...........Appellant(s)
Vs.

M/s Sangeetha,

M/s Revann's Nokia Care.
...........Respondent(s)

BEFORE:
1. Smt.Y.V.Uma Shenoi
2. Sri D.Krishnappa


ORDER


Complainant Sri. Kumar, S/o Arabalaiah, R/at No.EWS 108, I stage, Kuvempunagar, Mysore. (By Sudarshan .V, Advocate)


Vs.

Opposite Party

1. The Manager, M/s Sangeetha, Dealers in Mobile and Mysore Electrical and Electronic Items, # 980, Panchamantra Road, Kuvempunagar, Mysore.

2. Proprietor, M/s Revanna’s Nokia Care, New Kantharaj Urs Road, Mysore. ( Exparte) Nature of complaint : Deficiency in service

Date of filing of complaint : 05-01-2009

Date of appearance of O.P. : - Date of order : 05-03-2009

Duration of Proceeding : - PRESIDENT MEMBER MEMBER Sri.D.Krishnappa, President 1. The grievance of the complainant in brief is, that he on 20.06.2008 visited the shop of the first opposite party who had displayed a board in front of his shop, offering gift hampers of Kodak camera 4 stroke and DVD player to the customers who purchase the goods worth of Rs. 13,000/-. That he on that day purchased a Nokia company, 6500 slider model mobile phone by paying Rs.13,514/-.

Then he demanded for giving gift hamper for which the first opposite party issued an acknowledgement assuring to deliver the gift hamper after informing him. But, thereafter the first opposite party failed to deliver the gift hamper. In the mean time the mobile phone he had purchased, developed some defects and thus handed over it to the first opposite party for repair. It was returned to him after repair. Again on 08.09.2008 when problem persisted he again gave that mobile phone to the first opposite party who in turn forwarded it to the second opposite party which is the service centre for repair, but the opposite parties have failed to return the hand set till day.


2. Considering the grievance of the complainant, notice was ordered to the first opposite party only who is duly served with the notice, but he has remained absent is set exparte.


3. The complainant in the course of enquiry into the complaint filed his affidavit evidence reproducing what has been stated by him in his complaint. He has also produced the bill under which he purchased the mobile set, an acknowledgement said to had been issued by the first opposite party for giving gift hamper and the job card for having given the mobile phone for repair to the first opposite party and in turn to second opposite party.



4. Heard the counsel for the complainant and perused the records.



5. On perusal of the compliant averments, affidavit evidence of the complainant and the documents he has produced reveal that the complainant on 20.06.2008 purchased a mobile phone from the first opposite party for Rs.13,514/-. But, the complainant have not produced the documents and not invited our attention to any of the publicity or article of the first opposite party in he having had offered gift hamper for having purchased article worth Rs.13,000/- and above. However the complainant has produced an acknowledgement said to have been issued by the first opposite party. Firstly this acknowledgement is not in any letter head or documents of the first opposite party undertaking assuring to give gift hamper to the complainant. Even the content of this acknowledgement do not say any where in this the first opposite party having had offered to give gift hamper. Therefore it is clear that the complainant has not placed any acceptable material in this first opposite party having had agreed or offered a gift hamper to the complainant in he having had purchased a mobile phone worth more than Rs. 13,000/- as such we do not find any substance in the complainant that the opposite party has offered a gift hamper to the complainant for having purchased a mobile set and the first opposite party latter has failed to honour it.


6. Coming to the deficiency in the service of the first opposite party in he having had not returned the mobile phone after necessary service which was handed over to him. The complainant has produced a job card issued by the second opposite party in name of the complainant, but the grievance of the complainant reveal that this complaint had entrusted the defective mobile set to the first opposite party who in turn has given it for service. Therefore admittedly there is no privity of contract between the complainant and the second opposite party, thus the first opposite party is alone is accountable to this complainant and that the second opposite party if at all is accountable only to the first opposite party and not to this complainant. This job card disclose that the mobile telephone of complainant was forwarded to second opposite party for necessary repair and service and it was to be redelivered to the complainant after required repair and service through second opposite party. The sworn statement of the complainant that the first opposite party has not returned his mobile phone has remained uncontroverted and unrebutted.

The first opposite party was given an opportunity by this forum by serving notice of the complaint has not availed the opportunity to oppose the claim of the complainant, under these circumstances we find no reasons to disbelieve the grievance of the complainant, as such the complaint deserves to be allowed in part and we pass the following order.


ORDER 1. Complaint is allowed in part.

2. The opposite parties No.1 is directed to return the mobile phone of the complainant after its effective repair within 20 days from the date of receipt of this order, failing which the first opposite party is directed to refund Rs.13,514/- with interest at 12% p.a. from the date of receipt of this order till the date of payment. 3. The first opposite party shall also pay cost of Rs.500/- to the complainant.

IInd ADDL. DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BANGALORE URBAN

No.1/7, Swathi Complex, 4th Floor, Seshadripuram, Bangalore-560 020

consumer case(CC) No. CC/428/2009

Kanish Kumar Gupta
...........Appellant(s)
Vs.

NOKIA Care

Hotspots Retails Ltd.,
...........Respondent(s)


ORDER

Order dated 16.03.2009

ORDER

After first round of calling of the cases, later on the complainant came and was present before the forum. The representative of opposite party

No. 1 was also present. He filed a memo as under: “Respected Sir, As per the case No. CC428/2009 of complaint given by Mr. Kanish Kumar has given the handset model 6210 bearing IMEI No. 354199020222537 which has been swapped from higher level repair. We apologies for the delay. I have got the swap handset now bearing IMEI No. 354199020507127 which I would like to handover to the customer. Kindly instruct the customer accordingly, Thanking you, Yours truly, For Mobile Care” The complainant who was present before the forum received the new handset from the representative of opposite party No. 1. The complainant also claimed in his complaint replacement of handset with new piece.


In view of giving of new piece by opposite party No. 1 the prayer of the complainant has been met with. The only grievance of the complainant is he has spent money for filing complaint and he has wasted his working days to enquire the status of repair of handset and it was troublesome job for him to enquire again and again the status of repair. It gave him mental tension. Therefore, the complainant submitted that a reasonable amount towards cost and expenses be awarded. He also wanted warranty card.


The representative of opposite party No. 1 submitted that already complainant had been given warranty card and that warranty card will hold good and opposite party No. 1 has no authority to give fresh warranty card. Complainant also submitted that he has got warranty card which had been given to him at the time of purchase of handset in the month of September 2008.

Opposite party No. 1 representative submitted that the Nokia Company has to give costs of litigation. Opposite party No. 1 is only a service centre working for the company.

Opposite party No. 1 has given address of the Nokia Company. Complainant has not made Nokia (India) Pvt. Ltd. as party to the present proceedings. Therefore, in the absence of making company as party to the proceedings again it will be difficult for this forum to direct the company to pay the cost and compensation for mental agony, harassment etc.

Since the complainant has got relief of replacement of handset his request for cost and compensation is not liable to be considered in this complaint as the complainant has not made Nokia India Pvt. Ltd. as party to the present case. However, it is open to the complainant to file a complaint against Nokia India Pvt. Ltd. seeking cost and compensation. The disposal of this complaint will not come in the way of complainant proceeding against Nokia India Pvt. Ltd. If the complainant is so advised he can file complaint against the company or he can make representation directly to the Nokia India Pvt. Ltd. asking for costs and compensation. With this observation since the matter is settled and the complainant having received new handset the present complaint deserves to be closed.

Complainant:

Savitha,
D/o N.V.Ramu,
Aged about 31 years,
No:818, I floor, Narmada nadhi road,
Pipelane, Srinagar,
BANGALORE

/vs/

Opposite parties:

1. M/s.Devendra Telecom
No:329, GVS Complex
10th A Main road,3rd Blcok
OPP: Cosmopolitan club
Jayanagar
Bangalore – 11

2. Nokia Manufacturing Unit,
Sipcot Industrial estate,
In Sriperumbudur,
Near Chennai,
Rep.By its Manager

O R D E R

SRI.G.SIDDANAGOUD., PRESIDENT.,

This is a complaint filed by the complainant against the Opposite parties for the refund of an amount of Rs.3,050/- with interest, compensation of Rs.10,000/-, costs of Rs.5,000/- and for such other reliefs.

The brief facts of the case are that the complainant along with her husband visited exclusive Mobile showroom M/s. Devendra Telecom , near Jayanagar for purchase of NOKIA mobile set for the personal use and to keep in touch with her parents and her husband and taken a connection from BSNL bearing Mobile No: 9480504215,. On 28-10-2008 around 7.00 PM visited the above showroom impressed with the various features earmarked and purchased NOKIA Mobile model No:2600 C bearing No:356396020796050 from the 1st OP vide Invoice No: SI/3BN/5015 on paying the full cash amount of Rs.3,050/- (Rs. Three thousand fifty only ). Which was being manufactured by the 2nd Opposite party. After purchasing the said mobile set and her BSNL sim was given to the OP 1 sales man to insert the same in the mobile and the sim was inserted in the mobile. As it was late in the evening on 28.10.2008 in the OP1 showroom and left to the house. The next day morning when she operated the said set, it was getting switched off and on observing the said mobile instrument, it was found that the back portion of the said instrument was faulty and it was getting automatically opened off. Even on receiving the calls it was getting switched off due to faulty closing of the said instrument. She was very much shocked and underwent mental agony since the purchase of the said instrument. Immediately, on 29.10.2008 the next day evening visited the office of the Op 1 and requested the OP 1 to replace the said set with new one as it is a faulty and it is having manufacturing defects. The OP 1 directly informed us that there might be a mistake in the set and further told that they are unable to replace the said instrument as login had been over. After some time with the inspection of the said instrument the OP 1 informed to hand over the set for repair and asked to come after THREE DAYS or at the latest by ONE WEEK to get back the said mobile instrument after set righting it. After some time, again she requested to the OP 1 for replace the mobile instrument immediately, he never listened to the words of their request, they were shocked and annoyed that on purchasing a new instrument on 28.10.2008 and visited the very next day for the replacement and even it is not used for a single day and OP 1 is telling with rash and negligent manners, she was helpless.

When visited first time to purchase the mobile instrument, they were very much pleased and when they visited with a problem, they were never pleased and reply was very much arrogant. This clearly shows the negligent attitude towards the customers. The said new instrument is of no use, as it is found having several defects like the instrument was automatically getting switched off and unable to store any data, and even on receipt of the incoming calls the connection automatically gets cut off due to not coinciding with front and back portion of the said defective mobile. Even if at all, the back portion of the said instrument is pressed lightly, the incoming or outgoing calls can be attended. And finally to do outgoing calls it is very much difficult and when they press the keys of the numbers feeble sound of pressing is listened and the entire back portion of the said instrument doesn’t coincides with the front portion. The act and attitude on the part of the 1st OP, shows that they have played an unfair trade practice over and making herself and her husband moving up and down with regard to the above said instrument. Even till today the said set is of no use and not even single day it is used and this shows that there is a manufacturing defect in the production of the said mobile phone. Hence the complainant approached.

Op1 appeared personally, Op2 appeared through its counsel. After the appearance of the Ops, sufficient time has been granted to the Ops to file their version and affidavit. But in spite of sufficient time granted, both Ops neither appeared nor filed their version and affidavit. Complainant gave her evidence by way of affidavit. Heard arguments of the learned counsel for complainant. On the date of arguments also none of the Ops appeared and submitted their arguments. Hence the case is posted for orders. Permitting both the Ops to submit their written arguments if any, within 3 days.

The complainant specifically on oath stated about the purchase of mobile set on 28/10/2008 for Rs.3,050/-. Receipt produced by the complainant completely corroborates the evidence of the complainant. The complainant also submitted on oath about the defects in the set on the very next day and visiting all the Ops on several occasions from the date of its purchase. When the complainant has brought it to the knowledge of the Ops about the defects in the mobile on the very next day of its purchase, it is the bounden duty of the OPs to rectify the same or to replace it or to refund the amount but the Ops made the complainant to visit the shop on every day for the payment of the amount. But the Ops never bothered either to replace the mobile set or to refund the amount. The complainant has purchased the mobile set with the hope of getting the benefit out of it without any trouble. But on the very next day itself she found it not functioning and even today it has become a useless set. This sort of an act on the part of the Ops definitely amounts to deficiency in service.

These facts have not been specifically denied by the Ops, even though the Ops are appeared before this forum. In spite of sufficient opportunities given to them, they failed to submit their statement of objection and evidence to rebut the evidence of the complainant. They never bothered to appear before this forum to submit their arguments also. In the absence of specific denial by the Ops, the evidence given by the complainant is unchallenged and uncontroverted.

In view of the discussions made above, we are of the opinion that the complainant has proved the deficiency in service on the part of the Ops. Accordingly, we pass the following order.

O R D E R

Complaint is allowed. Opposite parties 1 and 2 are jointly and severally liable.

Opposite parties 1 and 2 are directed to refund an amount of Rs.3,050/- (Rupees Three Thousand Fifty only) to the complainant within 30 days from the date of this order with interest @ 12% p.a. from the date of its purchase to till the date of realization.

Opposite parties 1 and 2 are further directed to pay an amount of Rs.2,000/- (Rupees Two Thousand only) to the complainant towards the cost of this litigation.

Complainant is directed to hand over the mobile set to the Opposite parties at the time of receiving the amount.

Sh. Prem Chand son of late Sh.Shiv Ram resident of village Jalaura, Post Office Shirar, Tehsil and District Kullu, H.P. ..Complainant.

V/S

1.Nag Ji Communication near Post Office Akhara bazar Kullu, H.P.
2.Nokia Care Centre, through Gupta Communication Dhalpur, Kullu, H.P.
..Opposite parties

For the complainant Sh. Vishwajit Katoch, Advocate Opposite parties Exparte

Complaint under Section 12 of the
Consumer Protection Act, 1986.

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. The case of the complainant is that he purchased a mobile set of Nokia make , Model – 6233 bearing IMIE No.356283017774631 with coloured screen display and Camera from the opposite party No.1 vide bill No.2820 dated 27-11-2007 in the sum of Rs.8100/- .

The complainant had kept the mobile very safely . It is alleged that within a week of purchase of the mobile handset, the same started giving problems and initially the Keypad and the Camera did not function properly .


The complainant had brought this fact to the notice of the opposite party No.1 within 15 days of the purchase of the mobile hand set in question and requested the opposite party No.1 to repair the defect or change the mobile set but he was told that he was not responsible for the defect and was directed to contact Nokia Care agent .


The complainant approached the opposite party No.2 at Kullu and apprised about the defects in the mobile . The opposite party No.2 assured the complainant that they will get the defect repaired or will get the hand set replaced by the agent of the company as soon as possible and on his assurance the hand set was retained by the opposite party No.2. The opposite party No.2 kept the mobile set for 15 days and gave the mobile phone back after getting the same repaired. Thereafter the complainant used the mobile set for about 10/12 days but again same fault developed . The complainant approached the opposite party No.2 and requested him to change the mobile set . The opposite party No.2 again took the phone from the complainant and assured him that they will get the phone changed . The opposite party No.2 kept the mobile for about two months and after repeated requests and visits, the mobile was repaired . The mobile set worked for some days and the same problem occurred for third time. Besides this, the software of the mobile phone also got corrupted on 31-10-2008. The complainant went to the shop of the opposite party No.2 third time and left the mobile set for repair/ replacement . The opposite party No.2 issued service job sheet card dated 31-10-2008 and assured the complainant that the phone will be replaced but despite telephonic calls and several visits neither mobile set was repaired nor replaced the set due to which the complainant is suffering inconvenience .On these grounds, the complainant had sought a direction to the opposite parties to replace the hand set with new one or to return the price of the hand set and also to pay Rs.5000/- as compensation.


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 purchased a Nokia mobile phone of model No.6233 bearing IMIE No.356283017774631 with coloured screen display and Camera from the opposite party No.1 vide bill No.2820 dated 27-11-2007 in the sum of Rs.8100/- but the same developed problems within 15 days from its purchase and its keypad and camera did not function properly . The complainant approached the opposite party No.1 and apprised the above defect but he was advised to approach Nokia Care agent. The complainant visited the opposite party No.2 and the set was retained by it. The set was repaired twice , but it did not function properly and lastly on 31-10-2008 the complainant deposited the set with the opposite party No.2 and he was issued service job sheet dated 31-10-2008 and was assured that the set would be replaced but the same had neither been replaced nor returned till the filing of the complaint. In order to strengthen his case, the complainant had adduced in evidence original retail invoice issued by the opposite party No.1 which depicts that the complainant had purchased a mobile set of Nokia make mode 6233 on 27-11-2007 in the sum of Rs.8100/-.Apart from this the complainant had also placed on record original job sheet dated 31-10-2008 issued by Divyam Communications which shows that the mobile hand set of the complainant was not working properly .


The defect indicated in the service job card was camera not working ( camera is totally black) . In the column “ Additional Faults and Actions comments : it had been written that the set has been repaired three times Not only this, 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 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. Therefore , we hold that the opposite party No.1 is 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 party No.1 is directed either to replace the defective mobile set of the complainant or refund its price i.e. Rs.8100/- within one month from today failing which to pay Rs.50/- per day as penalty till the realization of the amount . The opposite party is also directed to pay Rs.1000/- on account of compensation for harassment and Rs.500/- as costs of complaint.

ORDER

ORDER DELIVERED BY Shri. R.G. PATIL, PRESIDENT ORDER DELIVERED BY Shri. R.G. PATIL, PRESIDENT



1)This is a complaint praying to direct the OPs to replace the mobile handset Nokia-6070 with a new one or to refund the cost of the handset of Rs.3600-00 and to pay to the complainant Rs.2000-00 towards mental agony, Rs 1000-00 towards expenses and Rs. 1000-00 towards costs.
2)Brief facts of the complaint are that, the complainant on 18-2-2008 purchased a Nokia mobile handset 6070 a product of OP-2, from the OP-1 for Rs 3,600-00. After 3 days while talking it started disturbance of irritating sound. The complainant, on the advice of the OP-1,contacted the service center who returned it saying it is repaired but without repairs. Again after 20 days he contacted the OP-1. Stating that he would get it repaired from the service center kept the set with him. After 15 days he returned it saying that it was repaired. Again the same problem continued. Again the complainant on the advice of OP-1 left the set with him. After one month it was returned stating that it was repaired but was not. The complainant many times requested the OP-1 either to get it repaired or to replace the set. The OPs turned negligent. There is deficiency of service by the OPs and they are liable.

3) The OP-1 filed WS stating that he being a seller is not liable for the repairs of any defects but the OP-2 is liable. The complainant has got it repaired from an unauthorized local repairer for which the OP-1 is not responsible. He prays to dismiss the complaint with costs.

4)The OP-2 filed WS stating that the contention that the complainant has purchased the Nokia handset and it started giving trouble are not within its knowledge. The contention of the OP-1 is not correct. The complainant ought to have prayed for repairs, if not possible replacement. The complainant has not produced any material for his claim and he is not entitled for any damages. He prays to dismiss the complaint with compensatory costs.

5)The complainant has filed his affidavit and got marked Ex.C-1 to C-2 and MO-1 to MO-3.

6)The point that arises for our consideration is “Whether there is deficiency of service by the OP ?”

7)The counsel for the complainant averred that the mobile set is purchased from the OP-1 who is the dealer and he has issued the warranty for the set. The set could not be repaired even after many attempts. The OPs are responsible for selling the defective goods to the complainant.

8)It is contented by the counsel for the OP-1 that the OP-1 being a seller is not responsible for any defect in the set. The OP-2 is responsible.

9)The counsel for the OP-2 averred that the contention that the complainant has purchased the Nokia handset and it started giving trouble is not within the knowledge of OP-2. The contention of the OP-1 that the OP-2 is liable is not correct. The complainant ought to have prayed for repairs, if not possible replacement. The complainant has not produced any material for his claim and he is not entitled for any damages. He prays to dismiss the complaint with compensatory costs.

10)We have gone through the pleadings and documents. The Ex.C-1 shows that the mobile set is purchased by the complainant from the OP-1 and the OPs have not denied that it was defective. The OP-1 denies his liability on the ground that he is a seller of the handset. But he being a seller is also liable for selling the defective set. The new set is purchased to utilize it without any problem. The OPs had either to repair the set to the satisfaction of the complainant or replace it. Instead they deny the facts of purchase and the defects. It is the deficiency of service by the OPs. The complainant has deposited the set and accessories in the Forum. The OPs have not sought for expert’s test. The complainant has sought for the replacement of the set or refund of the price amount of Rs.3,600-00. Under the circumstances if we direct the OPs to replace the set with new one or to refund the amount of Rs.3,600-00 with interest @ 10 p.a. from 18-02-2008 till realization and to pay cost of Rs.1,000-00, it would be justifiable.
We pass the following Order.

: O R D E R :

The complaint is allowed. The OPs are directed to replace the set with new one or to refund the amount of Rs.3,600-00 (Rs.Three thousand six hundred only) with interest @ 10 p.a. from 18-02-2008 till realization and pay cost of Rs.1000-00 (Rs.One thousand only) to the complainant.

COMPLAINT NO. 215 OF 2009

Omkar Murthy .G
S/o Gurusiddappa,
A/a 30 yrs,
R/at No.20, Harokethanahalli
Village, Makali Post,
Dasanapura Hobli,
BangaloreNorth Taluk.

…. Complainant.

V/s

01. S.S.G.Mobiles Pvt. Ltd(BIG C)
Branch Office at $204, 205,
Sampige Road, next to Halli
Mane Hotel, Malleshwaram,
Bangalore – 560 003.
(DISMISSED AS NOT PRESSED)

02. Nokia Care
BRIGHTCAREE
#25/1, Srikanta Mahal,
1st Floor,, 1st Cross,
Sampige Road,
Malleshwaram, Bangalore – 003.

…. Opposite Parties

-: ORDER:-

This complaint is for a direction to the Opposite Parties to replace the Mobile Hand-Set purchased by the complainant with a new one and to pay compensation of Rs.50,000/-.


2. The case of the complainant is as under:-
The complainant who is a practicing Advocate purchased NOKIA Mobile Hand-Set on 06.10.2008 from Opposite Party No.1 for Rs.4,450/-. From the date of purchase itself, there was total failure of connecting Head –Set to the Mobile Hand-Set and the performance of the Hand-Set was also not proper. The said matter was complained to Opposite Party No.2 who received the Hand-Set 17.11.2008 with assurance to get it repaired within two days. In spite of visiting the service center of Opposite Party No.2 several times, the Hand-Set was not repaired and he was requested to come after two days. On 29.11.2008 the Opposite Party No.2 informed that the Hand-Set has been sent to the Head Office and asked to come after a week. Thereafter Opposite Party No.2 promised to get the Hand-Set replaced with a new one. But Opposite Party No.2 failed to return the Hand-Set duly repaired or to replace it with a new Hand-Set, though the complainant visited the service center more than 10 times. He issued legal notice dated:11.12.2008 calling upon the Opposite Parties to replace the Hand-Set with a new one, but the Opposite Parties did not give any reply. By the act of the Opposite Parties, the complainant was subjected to mental agony, harassment, hardship and pain and therefore entitled to compensation of Rs.50,000/-. Hence, the complaint.



3.On service of notice, Opposite Party No.2 appeared before the Forum on 02.03.2009, but on the subsequent dates, he remained absent and thus failed to file the version and to participate in the proceedings. The complainant had also impleaded the Firm from which he had purchased the Mobile Hand-Set as Opposite Party No.1 Subsequently, he filed a memo to dismiss the complaint as against Opposite Party No.1. Accordingly, on 13.03.2009 the complaint against Opposite Party No.1 has been dismissed as not pressed. In support of the claim, the complainant has filed his affidavit and has produced copies of documents. We have heard the arguments of the learned counsel for the complainant.




4. The points for consideration are:-
1.Whether the complainant has proved deficiency in service on the part of the Opposite Party No.2?

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




5. Our findings are:-

Point No.1 : In the Affirmative

Point No.2 : As per final order

for the following:-

-:REASONS:-

6. From the copy of the service Job Sheet dated:17.11.2008 it is seen that the complainant handed over the Mobile Hand Set to Opposite Party No.2 for effecting repairs. This document supports the contention of the complainant that since the Mobile Head-Set was not connecting to the Hand-Set and the performance of the Hand-Set was also not proper, he handed over the Hand-Set to Opposite Party No.2 on 17.11.2008 for effecting repairs. Since Opposite Party No.2 has failed to file the version and remained absent on subsequent dates of hearing. The contention of the complainant that at some point of time, Opposite Party No.2 had promised to get the Hand-Set replaced with a new one has also remained unchallenged. Thus, the fact remains that though the Hand-Set was handed over to Opposite Party No.2 on 17.11.2008 for effecting repairs, the same was not returned to the complainant even as on 24.01.2009 – the date of the complaint. This delay on the part of the Opposite Party No.2 itself amounts to deficiency in service.

Though the complainant has prayed for a direction to Opposite Party No.2 to replace the Mobile Hand-Set itself with a new Hand-Set, the manufacture of the hand-Set is not impleaded as party. Admittedly Opposite Party No.2 is only a service center authorized by the manufacture. If at all there is any manufacturing defect and the same could not be rectified, it is the manufacturer who becomes liable to replace the defective Hand-Set with a new one. But such a direction cannot be given against the authorized service center.

In the Job Sheet dated:17.11.2008 also the complaint regarding performance of the Hand-Set is recorded as “UNABLE TO CONNECT HEAD-SET”. When Opposite Party No.2 received the Hand-Set on 17.11.2008 it was required to return the Hand-Set duly repaired within reasonable time. Opposite Party No.2 failed to return the Hand-Set for about three months and thereby subjected the complainant to mental agony and inconvenience and as such for the mental agony and inconvenience suffered, the complainant needs to be compensated. However, in our opinion the compensation of Rs.50,000/- claimed by the complainant is on the higher side.


In the facts and circumstances of the case, in our opinion it is just and sufficient if the complainant is awarded compensation of Rs.5,000/-. In the result, we pass the following:-

-:ORDER:-

• The complaint is ALLOWED.
• The Opposite Party is directed to deliver back the Mobile Hand-Set of the complainant duly repaired and to pay compensation of Rs.5,000/- inclusive of the costs of the proceedings to the complainant. Compliance of this order shall be made within eight weeks from the date of communication. If for any reasons, the Opposite Party No.2 fails to deliver back the Mobile Hand-Set duly repaired, it shall pay Rs.4,450/- - the cost of the Mobile Hand-Set to the complainant.

Sri Sreevatsa S/o Sri G.B. Purohit,
...........Appellant(s)
Vs.

M/s.Nokia India Pvt., Ltd.,

M/s. Global Access,

M/s. Mobile Care,
...........Respondent(s)

COMPLAINT NO: 424 OF 2009 Shri. Sreevatsa, S/o G.B. Purohit, Minor, Represented by his Natural Guardian, R/o Central Excise Quarters, L-Block, Door No.2, 38th Main, II Stage, BTM Layout, Bangalore-68. Complainant V/S 1. M/s Nokia India Pvt. Ltd., Building No.A, BLF Phase-II, Fiber City, Fiber Green, Gurgaon-02 (Haryana) 2. M/s Global Access, Bangalore(Dealer), III Block, Jayanagar, Near Martial Arts Academy Besides S.B.I. ATM, Bangalore. 3. M/s Mobile Care, 808, 7th Cross, B.T.M. Layout, II Stage, Bangalore-560076. Opposite Parties ORDER By the President Sri. S.S. Nagarale


This is a complaint filed by the complainant. The complainant is a student and he has purchased a mobile set Nokia on 19/02/2008 for Rs.9,900/-. Complainant experienced certain defects in the smooth functioning of the Nokia Mobile Set and approached opposite party No.3 on several occasions for getting defects set right. Opposite party No.3 is the authorized center.

Opposite party No.3 informed that handset is beyond repairs and he will get replacement of the said handset by new one. The complainant had approached the opposite party No.3 several times.

Being aggrieved by the lethargic attitude of opposite parties, complainant issued legal notice. Notice has been served. Complainant is put to untold hardship and pecuniary loss on account of nonfunctioning of the mobile set purchased from opposite party No.2.

The opposite party No.3 promised that they will arrange for providing new brand box piece of the same value of the original. But the opposite parties did not agree to reimburse the full value of the mobile set. Complainant in order to settle the dispute out of Court, issued one more legal notice to the opposite parties but no reply has been received.

The complainant prayed for reimbursement of full cost of the original handset and compensation and cost. Hence, the complaint. 2. Notice was issued to opposite parties.

Notice was served on opposite party No.2 and 3. Opposite party No.2 has not appeared before this Forum in spite of service of notice by RPAD. Therefore, opposite party No.2 was placed exparte.

The representative of opposite party No.3 appeared and he submitted that mobile set is with the opposite party No.3 and company is ready to replace with a new brand set. The complainant insisted for refund of the amount. Complainant was not ready to take the replacement since the complainant submitted that he has already purchased another mobile set. Therefore, he is not in need of any mobile set. The complainant has produced copy of legal notice and he also produced tax invoice of opposite party No.2. As per the tax invoice the complainant has purchased mobile phone for Rs.9,900/- on 19/02/2008.


The complainant has also produced service job sheets and on the facts stated by the complainant in his affidavit, it is clear that the handset purchased by the complainant is defective one. He has handed over the mobile set to opposite party No.2 for repairs. But opposite party No.3 submitted that complainant is ready to replace the set with a new brand mobile set in place of old set. The complainant is not ready to accept the offer.


The complainant is demanded for refund of the amount since he has already purchased another mobile set. So, under these circumstances, it would be just, fair and reasonable to direct the opposite parties to refund the amount. Opposite party No.2 is the dealer and opposite party No.3 is the service center. Opposite party No.1 is the Nokia India Pvt. Ltd.,.


The mobile set is with opposite party No.3. Opposite party No.3 has not filed defence version and opposite party No.2 though served with notice has not appeared before this Forum and contested the matter. Opposite party No. 2 even has not sent defence version by post.


Therefore, whatever the facts stated by the complainant in his complaint have gone unchallenged and there are no reasons to disbelieve the facts stated by the complainant. Complainant is a student studying in second year PUC. He has been put to unnecessary harassment and mental agony since the mobile phone purchased by him found to be defective.



It is the duty and obligation and commitment of the service providers to supply defect free goods to the customers. Consumer Protection Act is a social and benevolent legislation intended to protect better interest of the consumers. The complainant being a consumer under the definition of the Consumer Protection Act, his rights requires to be protected. The complainant demanded for refund of the amount. His request requires to be accepted as just, fair and reasonable. In the result, I proceed to pass the following:-


ORDER



3. The complaint is allowed. The opposite parties are jointly and severally directed to refund Rs.9,900/- to the complainant within 30 days from the date of this order. In the event of non compliance of the order within 30 days the said amount carries interest at 12% p.a from date of this order till payment/realisation.

ORDER


1.(a) This Complaint is filed on 07/01/2009 under section 12 of the Consumer Protection Act, 1986.

The Complaint in brief, is as hereunder;

(b) The Opposite Party No.1 is the Manufacturing Company of Nokia Mobile Phones (hereafter OP-Company).


The Opposite Party No.2 is a Dealer of Nokia Mobile Phones manufactured by the Opposite Party Company. On 14/01/2008, he visited the 2nd Opposite Party-Dealer (hereafter OP-Dealer) to purchase a Mobile Phone of the Opposite Party-Company.

One Manish Jain was therein that shop.

He recommended a Mobile Handset bearing No.Nokia-6080 Silver. Accordingly, it was bought for a sum of Rs.3,900/- as per the Bill/Tax Invoice No.6260, dt:14/01/2008. After purchase of that Mobile Phone, it did not work satisfactorily even for a month. Several defects including manufacturing defects became visible in that Mobile Handset. While operation, it was being frequently disconnected and while in conversation, some times the conversant was not heard.


Some times all incoming and out going calls could not be connected on both ends. Some times there was no proper display in the screen. There was problem in the sound system also. The keypad remand defective. On 5/5/2008, the Complainant approached the Opposite Party-Dealer with the above grievance.
The Opposite Party-Dealer promised to provide service to the said Mobile Handset but, refused to refund the consideration. The Dealer received the Mobile Handset with the battery for service by making an endorsement on the backside of that Tax Invoice itself and assuring that the Mobile Handset would be set-right within one week.


However, nothing positive was turned out. Surprisingly, the Opposite Party-Dealer did not return that Mobile Handset to the Complainant inspite of requests. The Opposite Party Company had provided warranty to that Mobile Handset for a period of One year. In the circumstances, having no other option, the Complainant caused a Legal Notice to the Opposite Party-Company and also the Opposite Party-Dealer on 19/07/2008 through RPAD also calling upon them to compensate in a sum of Rs.10,000/- apart from returning the cost of that Mobile Handset in a sum of Rs.3,900/-.


The Opposite Party-Company did not respond to that Notice. But, the Opposite Party-Dealer responded denying the contents of that Legal Notice. Since, the Opposite Parties remained deficient in rendering services to the Complainant touching that Mobile Handset, the Complainant is put to sufferance and loss. Hence, this Complaint is necessitated to direct the Opposite Parties to return the cost of that Mobile Handset as claimed in the Legal notice along with the cost of this proceeding.


(c) Along with the Complaint, the Complainant has made available a list with Seven Documents marking them at Annexures- A to J.


2. (a) Though the Opposite Parties appeared through Counsel, no Version as such is made available by the Opposite Party- Company inspite of extending time from time to time. Ultimately, it was treated that the Opposite Party-Company have no Version in the case. The Opposite Party-Dealer have made available their Version in the beginning itself.

(b) The substance of the Version of the Opposite Party-Dealer is as hereunder:

(c) This Complaint is neither maintainable at law, nor on facts of the case. This Opposite Party is not a Dealer as such. However, this Opposite Party sells the goods of the 1st Opposite Party including Mobile phones. This Opposite Party is not the Manufacturer of the Mobile Handset bought by the Complainant from them. Wherefore, this Opposite Party is not answerable to the Complainant. If at all there is any defect in the said goods, it was for the 1st Opposite Party-Manufacturing Company to get the needful done. The allegations made against this Opposite Party are denied since false.


This Opposite Party has not made any endorsement on the backside of the Tax Invoice as alleged by the Complainant. The warranty is maintained by the 1st Opposite Party-Manufacturing Company. No Mobile was delivered to this Opposite Party by the Complainant for repairs on 05/05/2008.

At no point of time, the Complainant had approached this Opposite Party. It appears, the Complainant is trying to enrich himself by making false allegations. In the circumstances, there is no deficiency of service by this Opposite Party and as such, this very Complaint has to be dismissed with cost. (d) One Manish Jain has signed and verified that Version of the 2nd Opposite Party.


3. Thereafter, the parties were called upon to produce their evidence in the form of affidavits and documents. Accordingly, the Complainant has produced his affidavit on 25/03/2009. For the 2nd Opposite Party that Manish Jain had sworn to an affidavit which is made available in evidence on 30/03/2009. For the Complainant, a list with the original documents at Annexures-A to J were made available on 25/03/2009 itself. At the end, this Forum heard on merits. 4. In the circumstances, the following points do arise for our consideration and decision in this Proceeding and they are;

(i) Whether the allegation of deficiency of service made by the Complainant against the Opposite Parties is well-founded ?

(ii) Whether the Complainant is entitled for any relief in this case against the Opposite Parties ?

(iii) What Order?


5. Our Findings to these points are as hereunder: i) Yes, ii) Yes, iii) As per the operative portion of the Order here- below. 6. We shall strengthen our findings on the following:



R E A S O N S POINT NO.1


(a):- Nodoubt, the Learned Counsel representing the 2nd Opposite Party-Dealer had tried to impress upon this Forum that the 2nd Opposite Party is not a Dealer of the goods of the Opposite Party–Company and on the other hand, they only sell the goods of the Opposite Party-Company.

There is least doubt as to the status of the 2nd Opposite Party in connection with the goods manufactured by the Opposite Party-Company and it can be safely concluded that the 2nd Opposite Party is one among the several Dealers of the goods of the Opposite Party-Company. In this regard, the very Annexure-A made available by the Complainant throws light. Annexure-A is the Original Tax Invoice dt.14/01/2008 bearing No.6260 issued by the 2nd Opposite Party-Dealer regarding the sale of Nokia-6080 Silver Mobile Handset for a sum of Rs.3,900/- to the Complainant.



(b) Now, the grievance of the Complainant is that the said Mobile Handset became defective within a period of one month from the date of purchase and that he had to suffer a lot on account of the said defects which were not cured by the Opposite Parties. What are the defects so found in the said Mobile Handset, have been detailed by the Complainant in the Complaint itself. The Opposite Party No.2 admits, the Complainant so buying that Mobile Handset from them. Now the contention of the Complainant is that on 05/05/2008, he had lodged that defective Mobile Handset with the 2nd Opposite Party-Dealer with a request to get the defects removed or, to refund the amount so paid by him. Further, it is the contention of the Complainant that the 2nd Opposite Party refused to refund the amount but, agreed to get the defects removed and retained the same with them and never returned the same, thereafter even to this date. As stated supra, it is the contention of the 2nd Opposite Party that the Complainant never handed over that Mobile Handset to them for repairs either dt.05/05/2008 or, any other date. However, to probabilise that it was so handed over to the 2nd Opposite Party, the Complainant has placed reliance upon the entry made on the obverse of that Annexure-A Tax Invoice.

There we find certain entries. According to the Complainant, that Mobile set was so received by that Manish Jain under his signature and entries so found include the signature of that Manish Jain and his Mobile numbers and also the description of the Mobile Handset so lodged. We find a recital therein to effect that the said Mobile Handset bearing No.6080 has been received by the signatory to it.



According to the Complainant that Signatory is none other than that Manish Jain. Ofcourse, the 2nd Opposite Party has denied the genuineness of that signature. However, they remained silent as far as the correctness of the Mobile phone numbers mentioned therein. If those Mobile numbers did not pertain to that Manish Jain, certainly there could have been a denial in that regard by the 2nd Opposite Party. (c) That apart, it is the very case of the Complainant that, he was constrained to cause a Legal Notice to both the Opposite Parties for not removing the defects in the said Mobile Handset and for not delivering the same to him.


According to the Complainant, said Notice has been caused to the Opposite Parties through RPAD and the Complainant has made available the postal receipts along with the postal acknowledgment of the 2nd Opposite Party in evidence here. A copy of that Legal Notice is at Annexure-C and those postal receipts are at Annexures-D, E & F and that postal acknowledgment of the 2nd Opposite Party is at Annexure-G. Significantly to the naked eyes, the signature found in that postal acknowledgement tallies with the signature found in that entry on the obverse of that Tax Invoice.

It has to be seen that the signature at Annexure-G also had come into being at an undisputed point of time. In the circumstances, we have no reason to doubt the authenticity of the same. Moreover, it is not the case of the 2nd Opposite Party that they did not receive that Legal Notice at all. On the other hand, even according to them, they have caused a reply to that Legal Notice and infact the Complaint has made available that original reply dt.21/07/2008 which is at Annexure-J. Wherefore, the above circumstances would clearly go to show that the 2nd Opposite Party have received that defective Mobile Handset from the Complainant as contended by the Complainant. Nodoubt, the Learned Counsel representing the 2nd Opposite Party placing reliance upon the signature of Manish Jain found in the Vakalath and the Version and also in the affidavit contended that no reliance could be placed on the testimony of the Complainant regarding the genuine of the entries made on the obverse of that Tax Invoice at Annexure-A. Nodoubt, there is a sea change in the signatures. However, according to the Complainant, having realized the position, the 2nd Opposite Party must have thought of the way to wriggle out of the situation and putting the signature in a different mode is an attempt in that regard.

To dispel the cloud the 2nd Opposite Party could have made available any document containing the signature of that Manish Jain which came into existence at an earlier point of time. Wherefore, having regard to the totality of facts, we have no reason to doubt the bonafides of the above contention of the Learned Counsel representing the Complaint. (d) Admittedly, there is a Warranty of twelve months to that Instrument and that Warranty is provided by the Opposite Party-Company as revealed in Annexure-B. Annexure-B is the Original Warranty Card issued by the Manufacturing Company touching the instrument in question. In the context, the Learned Counsel representing the 2nd Opposite Party strenuously tried to impress upon this Forum that there is no liability on them and the liability if any is that of the Manufacturing Company and not the Dealer. We do not find force in this contention. Under Law, the liability is joint and several for the reason that the Customer while buying the goods, sees only the Dealer and not the Manufacturer of goods so bought and if the Dealer is entitled to be reimbursed from the Manufacturer, the Dealer has every right to proceed against the Manufacturer of the goods and as far as the Customer is concerned, both are liable. In the light of that Legal position, the liability rests on both the Opposite Parties in this case.


(e) Now, the conduct of the Manufacturing Company as 1st Opposite Party need be looked into. As contended by the Complainant, they have not chosen to cause any reply to that Legal Notice. Moreover, in this proceeding also, they have not chosen to produce their Version of the case if any, inspite of service of Notice. Wherefore, the very approach of the 1st Opposite Party-Manufacturing Company is a defiant one. As already stated, as far as the 2nd Opposite Party is concerned, instead of getting the needful done, they have made the Complainant to knock the doors of this Forum. In the circumstances, the above conduct of the Opposite Parties would certainly amount to deficiency of service within the purview of the Consumer Protection Act, 1986.


7. POINT NO.2:- It is needless to say that in the absence of that Mobile Instrument, the Complainant must have been put to some sort of agony, sufferance and loss. It is not as if the Complainant is responsible for the same. On the other hand, as stated supra, the Opposite Parties have failed to discharge their obligation. The 2nd Opposite Party as a Dealer have to gone to the extent of retaining that very Mobile Handset with them without providing a remedy to the Complainant. As provided in the said Warranty Card, the Manufacturing Company is liable to the Customer-Complainant in respect of the defects in the said product and the Warranty shall neither exclude, nor limit any of the Legal rights against the Manufacturer or against the Seller of the product. Wherefore in a situation like this, it is but proper to direct the Opposite Parties to get the defects in the said Mobile Handset removed at their own cost and deliver the same to the Complainant free from any defect and if or any reason, it is not possible to remove the defects in the said Mobile Handset, it is but proper to refund the amount so paid by the Complainant to that instrument. In addition to the same, it is just and necessary to direct the Opposite Parties to compensate the Complainant for not only causing inconvenience and hardship him, but also for driving him to this litigation. In the circumstances we feel, a sum of Rs.2,000/- if ordered by way of cost and compensation, ends of Justice would meet. Accordingly, this point is answered against the Complainant.


8. POINT NO.3:- In the result, we proceed to pass the following:



O R D E R



Since, the alleged deficiency of service by the Opposite Parties is established, the Opposite Parties are hereby directed to get the defects in the Mobile Handset in question removed and deliver the same to the Complainant free from any defect without collecting any amount from the Complainant in that regard within 30 days from this date. If for any reason the defects in the said Mobile Handset cannot be removed then in that event, the Opposite Parties shall refund Rs.3,900/- (Rupees three thousand nine hundred) to the Complainant being the cost of that Instrument. In addition to the same, the Opposite Parties are directed to pay a sum of Rs.2,000/- (Rupees two thousand) to the Complainant by way of cost and compensation.


In case, the 2nd Opposite Party-Dealer is entitled for reimbursement from the 1st Opposite Party–Manufacturing Company, their right to get that reimbursement shall not be affected by this Order and as far as this Order is concerned, the Opposite Parties are liable to comply this Order jointly and severally.

Complainant:


ANAND RAJ G.
Mehta Chemicals
No.6 (Shop No.3) 6th Cross
6th Main, S.R. Nagar
BANGALORE-560 027


/vs/




Opposite Parties:


1.M/s. NOKIA INDIA (P) LTD.,
5th Floor, Tower A & B
Cyber green, DLF Cyber City
Sector 25A, GURGAON
HARYANA-122 002

2.M/s. SUBHIKSHA TRADING
SERVICES LTD.,
No.259, 6th Cross, 1st Main
Binnamangala, Indiranagar
1st Stage, Bangalore- 560 038

O R D E R




SRI. G. SIDDANAGOUD, PRESIDENT:


This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 against the Opposite parties (Ops in short) for the refund of amount of Rs.10,720/-, expenses of Rs.2,000/- with costs and for such other reliefs.

The brief facts of the case are that the complainant purchased one Nokia GSM Mobile phone model 5310 from Subhiksha Trading Services Ltd., Bangalore for Rs.10,720/- on Date 05/12/2007 (Bill enclosed) with IMEI NO.358653012886507 and Warranty reference No.APAINY 122632084, Warranty for one year from the date of Purchase. Since March 2008, complainant started facing problem in above mentioned mobile phone, the problem was it gets auto restarts and reboots while making and receiving calls and SMS, it means it was getting off and automatically gets on, regarding this he visited Nokia Care Centre they updated its software and returned mobile on the spot. After 10 to 15 days, he again started getting same problem. He visited Nokia Care Centre, they did the same job and returned the mobile and assured that it will not happen again.

But in May month facing same problem, he visited nokia care centre and asked them to replace the mobile, they said that they would send mobile to their Channai Service Centre, the job sheet No.WAS 171434038/080401/43 dated 23/05/2008 he received his repaired mobile after 15 days, this time they assured that problem is rectified and if it repeats they will surely replace the set. Again after 15 days he started getting same problem, he visited nokia care centre and asked them to replace, the job sheet No.WAS 171434038/0804626/7 and he also lodged complaint with Customer Care the no. is 2-34YTLS on 26/06/2008, after 10 days they asked him to collect old mobile and said that they won’t replace it. And regarding his complaint he didn’t received any proper response. The same problem still he is facing till date, complainant very much disturbed with behavior of a such a big company for all this process, he has spent Rs.2,000/- for all this process. Hence, the complainant approached this forum.

Op1 appeared through its counsel, Op2 remained absent, even though notice was served on Op2. Hence Op2 placed ex-parte. Complainant gave his evidence by way of affidavit. Complainant and Op1 permitted to submit their written arguments within 3 days as none of them were present on the date of arguments. The complainant in his evidence specifically stated about the purchase of mobile hand set for Rs.10,720/- and existence of warranty period. Complainant hardly used 2 to 3 months but thereafter it started giving problem and he was unable to use the mobile set. He visited Ops on several occasions with the problem and the same was rectified by the Ops by keeping it with them for 8 to 10 days but again the same problem was continued, the set was also sent to Chennai for repairs and inspite of that they were not able to rectify the defects. The Ops thereafter never bothered to the request of the complainant for rectification of the defect and also they have completely refused either to refund the amount or to replace it. When the defects of mobile set was brought to the notice of the Ops and when it is within the warranty period, it is the bounden duty of the Ops either to rectify it or to replace it or to refund the amount. But none of them were done by the Ops. This sort of an act on the part of the Ops definitely amounts to deficiency in service on their part.

These facts have not been specifically denied by the Ops. Even though, the Op1 appeared through its counsel, it never bothered to file its statement of objection or evidence to rebut the evidence of the complainant. Op2 remained ex-parte. In the absence of specific denial by the Ops, the evidence given by the complainant is unchallenged.

In view of the discussions made above, we are of the opinion that the complainant has proved the deficiency in service on the part of the Ops. Accordingly, we pass the following order.

O R D E R

Complaint is allowed. Opposite parties 1 and 2 are jointly and severally liable.

Opposite parties 1 and 2 are directed to refund an amount of Rs.10,720/- (Rupees Ten Thousand Seven Hundred Twenty only) to the complainant within 30 days from the date of this order with cost of Rs.2,000/-(Rupees Two Thousand only).

Complainant is directed to hand over the mobile set to the Ops at the time of receiving the amount.

In the event, Opposite parties 1 and 2 fails to refund the amount within the period as ordered by this forum, Opposite parties 1 and 2 are directed to pay an interest @ 12% p.a. on Rs.10,720/- (Rupees Ten Thousand Seven Hundred Twenty only) to the complainant from the date of this complaint to till the date of realization.

M. Sameera,
s/o Meeramaideen,
HIGA 288 Tamil Nadu Housing Unit,
Gandhigrammam,
Karur. … Complainant

-versus-

1) The Proprietor,
Nokia- Mobile Gallery,
Transport House, Covai Road,
Karur.

2) Nokia India Private Limited,
Nokia Telecom, Sipcot,
Sriperumpudur 602 105. … Opposite Parties

This complaint coming on this day for final hearing before us, in the presence of Thiru A. Balakumar, Counsel for complainant and Mr. R.Pandian, Counsel for opposite party No.1 and Mr. A.Pandian, Counsel for 2nd opposite party and the complainant made endorsement as she is not pressing the complaint and this Forum passed the following:

ORDER

1. The complaint is for directing the opposite parties to give the cellphone in a good condition after servicing the same or to pay Rs.1,650/-towards the price of the cellphone with 9% interest and to pay Rs.3,500/- towards expenses and to pay Rs.20,000/- towards compensation for mental agony to the complainant.
2. In view of the endorsement made by the complainant, this complaint is dismissed as not pressed without costs.

Gopal Krishan aged about 29 years S/o Sh. Roshan Lal, R/o H. No. 33220, Street No. 8, Anand Vihar Chowk, Partap Nagar, Bathinda.

.... Complainant
Versus

1. Jaura Stablizer, Authorised Retail Showroom of Nokia at Near Imperial Motors, Street No. 6, Nai Basti, Lower Mall Road, Bathinda through its Proprietor/Owner
2. Hindtal Communication, Authoised Service Centre of Nokia, Opposite Sarup Singla's Office, Near Hotel Krishna Continental, Bathinda, through its Manager/Incharge/Proprietor
3. The Care Manager, Nokia India Private Limited, 4-F,Tower, A & B, Cyber Green DLF, Cyber City, Sector 25-A, Gurgaon (Haryana)
... Opposite parties

O R D E R


1. Sh. Gopal Kishan , complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 (here-in-after referred to “Act”) with the allegations that he purchased one colour mobile set Nokia- 6300 for Rs. 7350/- vide bill No. 2529 dated 14-04-2008 from opposite party No. 1 on the assurance that mobile set is one of the top most model of Nokia Company and is free from all types of defects. He was also assured that in case any defect occurs in the mobile set within guarantee/warranty period of one year, the defect shall be removed within no time and in case the defect is not curable, the set will be replaced with a new one. On the said assurance of opposite party No. 1, the complainant purchased the aforesaid mobile set. In the month of September, 2008, mobile set stopped working and started creating problems such as screen flickering and battery not properly charging.

On 18th September, 2008, he approached opposite party No. 2 at the instance of opposite party No. 1 and handed over the mobile set for removing the defects and the same was returned to him after repairs, but the defects remained as such as it was a manufacturing defect.

The complainant has to suffer unnecessary mental tension, agony, harassment and inconvenience without proper use of the mobile set. He also failed in all kinds of plannings due to non-functioning of the mobile set. He repeatedly requested the opposite parties to replace his mobile set with a new one or in the alternative to refund the price of the same alongwith interest, but the opposite parties have absolutely failed to given any response. He served a notice 12-12-2008 which was also ignored by the opposite parties. The complainant, thus claimed a compensation to the tune of Rs. 60,000/- for undergoing mental tension, agony, physical harassment, financial loss in the business and reputation as well as he suffered monetary losses and also claimed for replacement of the mobile set being defective or in the alternative refund of its price alongith interest @ 18% per annum.



2. On 24-02-2009, Sh. Harpreet Singh, Proprietor of opposite party No. 1 appeared before this Forum and requested for adjournment to file reply on the next date, but he did not turn up to file the reply. Accordingly, opposite party No. 1 was proceeded against exparte vide order dated 13-03-2009.



3. Sh. Mahesh Kumar, Authorised Representative of opposite party No. 2 put an appearance on behalf of opposite party No. 2, but despite various opportunities, he did not file reply. On 02-04-2009 none appeared on behalf of opposite party No. 2. Hence, it was proceeded against exparte.



4. Opposite party No. 3 appeared through his counsel Sh. Sukhdev Mittal, Advocate. However, despite availing opportunities, he did not file any reply on behalf of opposite party No. 3 and consequently vide order dated 02-04-2009 the defence of opposite party No. 3 was struck off.



5. The complainant filed his affidavit Ex. C-12 in exparte evidence and also filed an affidavit of Sh. Vikram Rajpur Ex. C-1, Field Officer of Indusind Bank, Bathinda to prove the allegations as has been referred to herein above, to the effect that mobile set was purchased by the complainant from opposite party No. 1, for a consideration of Rs. 7350/- on 14-04-2009 on the assurance that if any defect occurs in the above said mobile set within warranty or guarantee period of one year, the defect shall be removed within no time and that in case the defect is of such a nature which is not removable, in that event, mobile set will be replaced with a new one. However, in September, 2008, mobile set stopped its working and started creating many problems i.e. screen flickering and battery not chargeable etc. The defects were brought to the notice of opposite party No. 2 at the instance of opposite party No. 1 and it was repaired but the defects persisted and thereafter the mobile set was kept by the opposite parties in their possession since 22-09-2008, as a result of which, the complainant has to suffer mental agony, harassment, inconvenience as well as financial loss as all the plannings sought by him have failed and the mobile set for which purpose it was purchased, could not be used. The complainant also brought on record legal notice Ex. C-5 served upon the opposite parties and the postal receipts Ex. C-2 to Ex. C-4 and Ex. C-6 to Ex. C-8.


6. We have heard the learned counsel for the complainant and perused the entire record of the case carefully.


7. From the affidavit of the complainant Ex. C-12 and the affidavit of Sh. Vikram Rajput Ex. C-12, it is proved that complainant purchased one colour mobile set Nokia-6300 for a consideration of Rs. 7350/- from opposite party No. 1 on 14th April, 2008 and it went defective in the month of September, 2008.
The defects were reported but the opposite parties No. 1 & 2 could not rectify the defects and ultimately, the mobile set was kept in their possession by the opposite parties since 22nd September, 2008, without making any replacement or return of its price. It is also proved from the two affidavits Ex. C-1 & Ex. C-12, that the complainant suffered mental tension, agony, physical harassment, financial loss in business and loss of reputation due to non-availability of the mobile set since September, 2008 despite the fact that he spent a handsome amount of Rs. 7350/- for acquiring the same, which went defective without any fault on the part of the complainant.
Opposite parties No. 1 & 2 despite receiving the legal notice, did not pay any heed to the request of the complainant for replacing the defective mobile set nor they made any effort to return its price and complainant continued to suffer for more than six months without any fault on his part. The opposite parties No. 1 & 2 were bound to indemnify the complainant for the defects the mobile set developed immediately after its purchase by the complainant.


8. The opposite parties No. 1 & 2 were proceeded against exparte and none of them filed any reply or contested the allegations of the complainant.


9. The opposite party No. 3 also despite availing opportunities, did not file any reply and, therefore, his defence was struck off. However on 27-04-2009, the opposite party No. 3 made a request that he is ready to replace the mobile set with same model with one year warranty meaning thereby that the opposite party No. 3 is ready to replace the mobile set with the same model with one year warranty which indicates the allegations of the complainant against the opposite parties.



10. That on the basis of the evidence available on the record, it is proved that the mobile set went defective in September, 2008 and till 27th April, 2009, it remained in possession of the opposite parties and the opposite parties made no effort to indemnify the complainant for the loss and inconvenience, he has suffered due to non-availability of mobile set for which he is definitely entitled to be compensated reasonably and adequately. The complainant was forced by the adamant act and conduct of the opposite parties to file the present complaint, which is nothing but forced him to litigation and therefore, the complainant is also entitled to be reasonably compensated for litigation expenses.


11. Taking into consideration the entire facts, circumstance, evidence and peculiarity of this particular case, we accept the complaint and proceed to direct the opposite parties as under :-
i) Defective set be replaced with another mobile set of the same model with one year warranty or in the alternative return the entire price amount i.e. Rs. 7350/- alongwith interest @9% P.A. from 22nd September, 2008 till the payment is made.

ii) The opposite parties shall also pay an amount of Rs. 5,000/- as compensation on account of inconvenience, harassment and mental torture.

iii) The complainant shall also be entitled for an amount of Rs. 500/- as litigation expenses.


12. The opposite parties shall be liable to replace the mobile set or in the alternative its price amount and payment of compensation and litigation expenses jointly and severally.


13. The compliance of this order be made within 45 days from the date of receipt of copy of this order.

Kolli Satyanandam ,S/o Surya Prakasa Rao, Hindu,
Male, aged 43 years, Health Education Officer
R/o D.No.15-7-8, Muslimvari St., 12th Ward
Bhimavaram, W.G. Dist., -- Complainant

And
1. The Manager, Vasishta Mobiles, D.No.27-1-4,
J.P. Road, Bhimavaram, W.G.Dist.
2. M/s. Nokia India Pvt. Ltd.,
2nd Floor, Redison Hotel, N.H.8,
Mahipalpur, New Delhi-37,
rep. by its Manager.

-- Opposite Parties

O R D E R

This is a consumer complaint filed by the complainant under Sec. 12 of Consumer Protection Act with a prayer to direct the opposite parties to pay a sum of Rs.8,000/- together with interest at 24% pa., from 1-4-2008 till the date of realization or in the alternative direct the opposite parties to replace the defective Nokia Mobile with new one and also to pay a sum of Rs.10,000/- towards damages for rendering defective and deficiency in service and for costs. The circumstances that lead to the filing of this complaint are briefly as follows:



2. The complainant claimed to have purchased Nokia Mobile phone bearing No.6125 on 1-4-2008 for a sum of Rs.8,000/- from the 1st opposite party who inturn issued a bill and supplied Manual by giving a warranty of one year to the handset and six months to the battery. The complainant alleged that from the date of purchase of the said mobile, it was not receiving signals of the Network due to manufacturing defect in the hand set. While so, on 28-4-2008 the complainant surrendered the defective handset to the 1st opposite party who promised that he would send the same to the company service station and that it would be returned after effecting repairs within a week.

On 8-5-2008 the 1st opposite party returned the said handset stating that the problem could not be rectified by the Service Station and he further stated that it was a manufacturing defect and the manufacturer/2nd opposite party could only replace with new mobile. Thereupon, the complainant got issued a legal notice to the opposite parties on 26-5-2008 but of no avail. Hence the complainant filed this complaint for the aforesaid reliefs.


3. The 1st opposite party having received the notice on the complaint remained exparte.


4. The 2nd opposite party filed its version denying the averments of the complaint and stated that the complainant never approached it and not brought to its notice about the defects in the handset purchased by him, and that the 1st opposite party is not the concerned service station, and that the complainant had not produced any proof of worksheet etc., to show that there is a defect in the handset and therefore the complainant is not entitled for the reliefs sought for by him.


5. The complainant in support of his case filed his proof affidavit and got marked Ex A.1 to Ex A.5. The contesting 2nd opposite party filed its affidavit and got no documents marked.



6. The points for determination now are :

1) Whether there is any deficiency or unfair trade practice in rendering service to the complainant by the opposite parties ?

2) Whether the complainant is entitled for the reliefs sought for by him ?

3) To what relief ?

POINT No: 1:

Ex A.1 is the bill produced by the complainant to show that he purchased Nokia Mobile from the 1st opposite party for a sum of Rs.8,000/- on 1-4-2008. Both the parties did not raise any dispute in that regard. So it is borne out from the record that the complainant purchased the Nokia Mobile handset from the 1st opposite party under Ex A.1 bill and the 2nd opposite party is the manufacturer of the said mobile handset.


It is the case of the complainant that ever since the date of purchase of the handset from the 1st opposite party, it started giving trouble and thereupon when he brought the said set to the 1st opposite party, he was told that the defect of the handset was a manufacturing defect and therefore it should be replaced by the 2nd opposite party. It is also the case of the complainant that the 1st opposite party had not taken any trouble to rectify the defects in the mobile set, even though, he got issued legal notice to both the parties under Ex A.2. It is a fact borne out from the record that the 1st opposite party having received the said notice kept quite without rectifying the requisite defects of the handset in question. Further the 1st opposite party having received the notice on the complaint also remained exparte.

Therefore it is made clear by the complainant that the defect arose in the handset was due to the manufacturing defect. As per the contention of the 2nd opposite party, it is no doubt true that the defect in the handset was not brought to the notice of the 2nd opposite party at the initial stage. But Ex A.2/Office copy of the legal notice clearly goes to show that at the time when the 1st opposite party did not comply the requisite defects found in the handset, the complainant similarly brought the same to the notice of the 2nd opposite party. At the same time, it is not the contention of the 2nd opposite party that he had issued a suitable reply notice. Further more, the 2nd opposite party in his affidavit stated that the complainant had misused the mobile as such corrupted the delicate gadget of the mobile set. Except taking such a plea, the 2nd opposite party did not produce any proof in that regard.
Therefore the defense set up by the 2nd opposite party is only a false story invented by it in order to evade the replacement of the mobile set which can be attributed to unfair trade practice on its part. It is no doubt true that Ex A.5 is said to be a reply notice got issued by the 1st opposite party to the complainant. It is also no doubt true that the 1st opposite party in the said reply notice completely denied the allegations leveled by the complainant. However the 1st opposite party having received the notice on the complaint remained exparte. Under the said circumstances, the reply notice Ex A.5 got issued by the 1st opposite party will not help the 1st opposite party in any manner to discreet the testimony of the complainant.

Under the said circumstances, the complainant clearly established that both the opposite parties did not comply the defects noticed in the handset. It is also the unchallenged version of the complainant that the 1st opposite party informed him that the defect noticed in the handset is a manufacturing defect for which replacement of the same is required with a new handset. That apart, the role played by both the opposite parties in not rendering proper service to the complainant and taking some unjustifiable reasons amounts to unfair trade practice.

Under the said circumstances, this is a fit case where both the parties can be directed to replace the handset purchased by the complainant with a new one.

PONT No: 2 :

On a careful consideration of the entire material on record and for the reasons stated supra, we hold that the complainant clearly established his case and a direction to both the opposite parties to replace the handset in question with a new one will meet the ends of justice.

POINT No: 3:

In the results, the complaint is allowed directing the opposite parties 1 and 2 to replace the defective Nokia cell phone in question with a new Nokia cell phone of same value and hand over the same to the complainant within 15 days from the date of due dispatch of free copy of this order. Both the parties are directed to bear their own costs.

Sri. P.B.V. Sivannarayana, S/o Jaya Prasad, Hindu, male,
R/o Kaikaram, Ungutur Mandal, W.G. Dist., -- Complainant

And

1. The Authorised Officer ,BIG Showroom, Laksyani Mobiles India Pvt., Ltd.,
D.No.23B-9-6, Ramachandraraopet, Eluru
W.G. Dist.,

2. The Office Incharge
Laksyani Mobiles India Pvt., Ltd.,
Head Office, D.No. 6-1-8, Opp. Vijaya Talkies Road
T.Nagar, Rajahmundry, E.G. Dist.,

3. The Authorised Officer
Nokia India Pvt., Ltd., Radison Hotel
Commercial Flat, N.H.8, Mahipalpur
New Delhi, 110 007 -- Opposite Parties


O R D E R


This is a consumer complaint filed by the complainant requesting this Forum to direct the Opposite Parties to pay a sum of Rs.23,400/- with subsequent interest at 24% pa., from the date of complaint till the date of realization, to pay Rs.25,000/- towards damages and costs. The circumstances that lead to filing this complaint are briefly as follows:


2. The complainant claimed to have purchased Nokia Mobile Phone Nokia N 73 M on 5-6-2007 from the 1st Opposite Party. The complainant alleged that on 9-5-2008 as the said mobile phone developed problems in Joy Stick and side scrolling buttons, he handed over the same to the 1st opposite party for repair and the opposite party in turn returned the cell phone by effecting repairs but while checking the cell phone it was found that the Camera was not functioning properly. Then he had brought the said fact to the notice of the 1st opposite party and the 1st opposite party assured that the problem would be rectified within 20 days.

But as the problem remained persisting, on 29-5-2008 the complainant handed over the mobile to the 1st opposite party for effecting repairs. But subsequently inspite of several requests made by the complainant the opposite parties failed to return the said phone by effecting repairs and postponing the same on one pretext or the other. As such, he got issued a legal notice on 13-8-2008 but the opposite parties having received the said notice failed to respond thereof. As the 3rd opposite party is the manufacturer and the opposite parties 1 and 2 are seller and the service provider respectively, all the opposite parties are jointly liable to pay costs of the cell phone and compensation. Ascribing the acts of the Opposite Parties to deficiency in service, the complainant approached this Forum for redressal.


3. The 1st Opposite Party filed its version resisting the complaint by contending that the complainant after using the cell phone in question for along period of 11 months with malafide intention to get a new set, had handed over the set to the 1st opposite party on 9-5-2008 as if the set was giving trouble. After four days the set was handed over to the complainant by rectifying the alleged defect. Again on 29-5-2008 the complainant came to the 1st opposite party with another complaint and the 1st opposite party issued voucher (job sheet) to the complainant and the set was sent to the service station of Nokia India Pvt., Ltd., and the said defect was got rectified. But as the complainant failed to produce the voucher, the 1st opposite party could not deliver the set.

Then the complainant stated that the voucher was misplaced and as the warranty period is getting expired he demanded the opposite party to replace with new cell phone and threatened it that he would file a complaint. The opposite party maintained that it is always ready and willing to hand over the set in good working condition and as the complainant failed to produce the voucher it could not return the set and stated that there was no deficiency in service on its part and prayed this forum to dismiss the complaint with exemplary costs.,

4. The 2nd opposite party remained exparte.

5. The 3rd opposite party filed its version by reiterating the averments mentioned in the version of the 1st opposite party.

6. In support of his case, the complainant filed his own affidavit and relied upon the documents marked as Ex A.1 to A.8. The opposite parties have not filed any documents.

5. Heard both sides.

6. The points that arise for consideration are :

1. Whether the deficiency in service alleged by the complainant is proved against the opposite parties ?

2. To what relief ?


Point No.1 :
The entire evidence and the pleadings of the complainant went on placing the entire burden on the Opposite Parties for not delivering the hand set under working condition after effecting repairs to the cell phone in question. In this context, the plea raised by the Opposite Parties that at the time of taking the cell phone from the complainant, the 1st opposite party issued a voucher (jab sheet) and after effecting the repairs to the cell phone, the 1st opposite party requested the complainant to produce the voucher thereby enabling the opposite party to return the cell phone in question and without presenting the voucher, he approached this forum to gain wrongfully.


As seen from the contents mentioned in the complaint, the complainant had not spell out regarding the issuance of voucher by the 1st opposite party and the subsequent demand by it for returning the said set and straight away filed this complaint after issuance of legal notice with a prayer for reimbursement of the costs of the cell phone and for award of compensation. Therefore the burden rests on the complainant in proving the fact that as to what prevented him in not producing the voucher to the 1st opposite party when he was in a position to produce the same before the Forum and got marked as Ex A.4.

Therefore, the version of the complainant that the opposite parties failed to return the cell phone can not be accepted. If the complainant really had an intention to take back the mobile phone he ought to have presented the voucher marked as Ex A.4 to the 1st opposite party at that time itself, instead of approaching this Forum enclosing Ex A.4 voucher to this complaint.


Further more, the complainant in his affidavit traversed that the 1st opposite party got issued a reply with all false and untenable allegations but the complainant failed to file the said reply in this Forum. This obviously turns our mind to believe the version of the opposite parties. If the complainant had produced the voucher as demanded by the 1st opposite party, he would have got delivery of the phone without knocking the doors of this Forum. But due to failure on the part of the complainant in presenting the voucher as demanded by the opposite party, the refusal of the 1st opposite party can not be ascribed to deficiency in service.


Point No.2:
For the reasons stated above, the complainant is not entitled to get any of the reliefs. But however a direction to the opposite parties to return the cell phone in question under good condition to the complainant will meet the ends of justice. The point is answered accordingly.

Accordingly, the complaint is disposed off with a direction to the opposite parties to hand over the cell phone in question under good condition after duly effecting the needed defects to the complainant within a week from the date of due dispatch of free copy of this order. No order as to costs.

1. The brief facts set out in the complaint are :-
On 13-03-2008, the complainant has purchased a mobile handset from the 2nd opposite party at a price of Rs. 28,500/-. From 08-08-2008 onwards, video display system was not working. As per the direction of the 2nd opposite party, he approached the service centre they intimated that for repairing the phone an amount of Rs. 5,500/- was required and there was all chances for a total halt. As the opposite parties have not rendered proper service, the complainant purchased another phone for Rs. 3,100/-. Thereafter on 12-08-08, the complainant caused lawyer notice to the opposite parties and they sent a reply stating that the gadget was damaged due to water logging. Hence, the complainant seeking direction against the opposite parties neither to replace with a brand new one or to refund its price with compensation and costs.


2. The 2nd opposite party filed the following version :-
i) The 2nd opposite party admits the vending of the set under dispute.
ii) As per the direction of the 2nd opposite party, the service centre examined the set and found to have it liquid logged in display. Accordingly an estimate for Rs. 5,500/- was issued to the complainant for service.
iii) Manufacturer is not liable for free service of the set as per the terms and conditions of warranty and it was clearly mentioned in the reply notice.
iv) There is no deficiency of service from the part of the 2nd opposite party. The 2nd opposite party requests to dismiss the complaint.


3. Notice of this complaint was served on the 1st opposite party, but they were absent during the proceedings. The complainant was examined as PW1 and Exts. A1 to A6 marked from his side. Neither oral nor documentary evidence was adduced by the 2nd opposite party. The respective counsel were heard.


4. Points that arose for our consideration are :-
i) Whether the complainant is entitled for replacement
of the phone or refund of its price?
ii) Compensation and costs?


5. Point Nos. i) and ii) :- It is not in dispute that the complainant has purchased a mobile hand set from the 2nd opposite party at the price of Rs. 28,500/-. It is also not in dispute that the 1st opposite party is the manufacturer of the same.

6. Ext. A3 lawyer notice would show that the complainant has caused notice to the opposite parties informing them either to replace the set or refund its price. Ext. A4 is the reply notice of the 2nd opposite party. There is no reason before us to disbelieve the case of the complainant. Though the 2nd opposite party has contended that the set has been damaged due to water logging, no report or evidence is before us to substantiate the same aspect. In the above circumstances, we are of the view that the set is suffering from manufacturing defect. Moreover on 28-05-09, the case has been taken up in the adalath for settlement. The learned counsel Mr. Binu Mathew appearing for the 1st opposite party submitted that they are ready to refund the invoice price of the gadget in dispute provided the complainant returns the same with all its accessories. In view of the above submission and considering the facts and circumstances, we are not ordering any compensation and cost.

7. Thus, we allow the complaint and direct that,
i) the 1st opposite party shall refund Rs. 28,500/- to the complainant being the price of the mobile handset in question, when the complainant returns the gadget under dispute simultaneously to the 1st opposite party.
ii) the above amount shall carry interest at the rate of 12% p.a. from the date fixed for compliance of this order till realisation.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.