BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:

VIZIANAGARAM

(UNDER THE CONSUMER PROTECTION ACT, 1986)

PRESENT:- SRI N.JAGANADHA RAO, B.Sc., B.L., PRESIDENT.

SRI P.APPALANAIDU, B.A., Bed., MEMBER.
SMT P.RUKMINI, B.A., B.L., MEMBER

FRIDAY, THE 6TH DAY OF MARCH, 2009

C.D.88/08

BETWEEN:

Sri D.Ramu,
S/o Janardhana Rao,
35 years, Business,
Residint at A-Block-1,
Shiridi sai Colony, Thotapalem,
Vizianagaram. …….Complainant.

And

1. M/s Usha Enterprises,
Besides S.V.Book Point,
Sri Srinivasa Complex,
Tank Bund Road, Vizianagaram.
2. M/s Aditya Cell Care,
Authorized Nokia Service Centra,
F-3, Sai durga Commercial Complex,
Railway station Road, Near ZP Office,
Vizianagaram.
3. Nokia Care Centre,
Rep., by its Manager,
Solectron Centrum Electronics Limited,
44, KHB Industrial Area,
Yelahanka New Town.
Bangalore. …opposite parties.

This complaint coming on for final hearing before us on 04-03-2009 in the presence of Sri Ashok Kumar Sarma, Sri P.S.R.Murthy and Sri Karthik, Advocates for complainant and of opposite party No.1 and 3 called absent and remained exparte and Sri P.Hara Gopal, Advocate for opposite party No.2 and having stood over for consideration, the Forum made the following:

O R D E R

1. The complainant, a resident of Vizianagaram, purchased Nokia Cell Phone instrument of 3110 C Model on 20-09-2007 from the 1st opposite party at Vizianagaram for the price of Rs.5,850/-. It has guarantee period for one year from the date of purchase, of Cell. It is complained that after one week of purchase the said set was getting over heat and when the 1st opposite party was approached, some minor repairs were done, but the same problem was recurring. Ultimately on 20-11-2007, the complainant again approached the 1st opposite party with the complaint of over heating and audio failure and requested for exchange. On the advice of the 1st opposite party, the complainant approached the 2nd opposite party, which issued a job card on receipt of the set. When the 2nd opposite party expressed inability to get it repair the 1st opposite party, exchanged the same with another one, which was a used one. When complained, a promise was made that a new set will be given. The 2nd set also stopped functioning with the same defect and memory card was also not accepted. Again at the instance of the 1st opposite party, the second set was also given to the 2nd opposite party on 20-08-2008. Though the 2nd opposite party gave a job sheet while accepting the set, after talking the 1st opposite party, it refused to accept job work and hand over the set to the complainant without repairs or replacement with substitute. Inspite of complaint to opposite party No.3, there is no action. Thus there is gross negligence on the part of the opposite parties is replacing the old set with new one, though the defect occurred within the guarantee period. This failure to do so, amount to deficiency in service. Hence this complaint for a direction to replace the defective piece purchased under bill dated 20-11-2007 or refund the set amount of Rs.5,850/- along with interest at 12% per annum till the date of realization besides compensation of Rs.25,000/- and costs.
2. The 2nd opposite party, which alone is contesting, while denying complaint allegations pleaded that it is only an Authorized Service Centre and when the complainant handed over the instrument for repair, the same was immediately returned to the complainant himself. More over, the 1st opposite party is authorized dealer and the purchase was made from it only, if any replacement was to be done, it would be by opposite party No.1 only. Hence this complaint has to be dismissed.
3. Opposite parties 1 and 3 remained exparte.
4. At the time of enquiry, the complainant apart from filing affidavit in support of his claim filed documents marked as Ex.A.1 to A.6.
5. The 2nd opposite party which alone contested, filed copy of job card and marked it as Ex.B.1.
6. Both the counsels were heard who reiterated their respective contentions. In view of the contentions raised by either party, the point that would arise for determination in this case is.
Whether there is any deficiency in service on the part of the opposite parties and
the complainant is entitled to ask for replacement of the defective set.
7. POINT:- The complainant purchased a Cell Phone bearing Model No.3110 C with IMEI No.356974011278591 on 20-09-2007 for Rs.5,850/-, under Ex.A.1 bill. When the instrument started giving trouble, he approached the 1st opposite party. On advice of the 1st opposite party he handed over the set to the 2nd opposite party, Nokia Care Centre at Vizianagaram, which issued a job card Ex.A.4 on 20-11-2007. Evidently, he was given another cell phone as a substitute pending repair and that cell instrument bears no. IMEI No.356974011201957. It is the complaint of the complainant that it is an old set that was given as substitute. There is no replacement for the original with new one. Surprisingly, when the 2nd set also started giving trouble, he again approached the 2nd opposite party handing over the set. A fresh job card dated 20-08-2008 was given. It is not clear from the documents filed as to who gave the substitute phone. It is probable, as pleaded by the complainant, that the 1st opposite party gave the second set. One thing is clear that the complainant purchased a set from the 1st opposite party, it gave trouble and it was handed over to the 2nd opposite party and evidently without making repairs, the second set was given to the complainant and unfortunately that second set also given trouble which was also handed over to R2. The complainant evidently taken return of the second set without repair and now wants replacement with new set for the original set purchased by him in view of the defects it developed.
8. The contention of the 2nd opposite party is that the set brought to repair was taken back by the complainant himself without getting defects rectified.
9. However, the complainant naturally contended that the original set, within warranty period, developed defects and it was handed over to the 2nd opposite party at the instance of the 1st opposite party and opposite parties are bound to replace it with a new one, as they failed to get it effectively repair. He surrendered the second set before the Court. Ex.A.1 is purchase bill. Ex.A.4 and A.5 are service job cards for the two sets clearly seen that the set originally purchased by the complainant was handed over to the 2nd opposite party at the instance of the 1st opposite party and evidently it was never repaired and returned to the complainant. The second set given as substitute by the 1st opposite party, also gave trouble and that was returned to the complainant, which is now produced in Court. There cannot be any doubt that when the 1st set was surrendered with a defect within warranty period the opposite parties have a liability to either effectively repair it or replace it with a new piece. It is quite clear; though a substitute instrument was given, it was not a new piece which also gave trouble to the complainant. The first set was surrendered to the opposite parties on 21-11-2007 i.e., within two months from the date of purchase. As already observed it was never returned to the complainant by the 2nd opposite party to whom it was handed over. Evidently, there is no possibility to rectify the defect of instrument purchased from them and so the opposite parties have an obligation to replace the same with new one. This is more so, when the defect was brought to its notice, within two months period from the date of purchase and thus well within the warranty period.
10. The contention of the counsel for the 2nd opposite party that as warranty expired it is not bound to replace with a new one in our view cannot be accepted. The complainant is not at all concerned with the second set, as it was not purchased by him, but given only as a substitute. Even otherwise, the date of purchase was 20-09-2007. The first set was surrendered on 20-11-2007 itself and the second set was also surrendered on 20-08-2008. Thus both the sets were returned to the opposite parties well within warranty period of 1 year from the date of purchase. Such being the case, a duty is cast upon the opposite parties to replace the original cell phone purchased by the complainant under Ex.A.1 bill with a new piece of the same model and the failure to do so inspite of notice, is a clear case of deficiency in service. Hence it is appropriate to direct the opposite parties 1 to 3 to replace the cell phone with new piece of the same model within 30 days and take return of the substitute cell deposited by the complainant with the Forum.
11. By the failure of the opposite parties to replace the cell phone with new one and make the complainant to suffer any amount of inconvenience it would be just and proper that the opposite parties 1 to 3 to pay a sum of Rs.3,000/- as compensation. Accordingly this point is answered.
12. In the result, the complaint is allowed directing the opposite parties 1 to 3 to replace the defective cell piece of Nokia 3110 C model, already surrendered to the 2nd opposite party, with a new cell piece of Nokia of the same model or pay its cost of Rs.5,850/- (Rupees give thousand eight hundred and fifty only within three weeks of receipt of this Order and also pay compensation of rs.3,000/- (Rupees three housand only) to the complainant with interest at 9% per annum from 20-08-2008 till the date of payment. The opposite parties 1 to 3 are further directed to pay costs of Rs.1,000/- (Rupees one thousand only). Advocate fee is fixed at Rs.1,000/- (Rupees one thousand only).
Dictated to the Stneo, transcribed by him, corrected and pronounced by us in the open Forum, this the 6th day of March, 2009.