SMT. MOLYKUTTY MATHEW : MEMBER
This is a complaint filed by the complainant U/S 35 of Consumer Protection Act 2019 for getting an order directing the opposite party to replace a new mobile phone in the same model and to pay Rs.25,000/- as compensation for mental agony caused to the complainant for the deficiency of service and unfair trade practice on the part of opposite parties.
The case of the complainant in brief
The complainant had purchased a Samsung Galaxy J6 32 GB mobile phone for Rs.11,500/- dated 10/11/2018 from 1st OP’s shop. There after the complainant noticed that a red spot on the display. The red spot enlarge overtime making it difficult to read message. Later the complainant informed the matter to his son. He advised him to report the matter to OP No.1. Then the complainant given the phone to 1st OP. The 1st OP immediately handed over the phone to OP No.3, the authorized service centre. The OP No.3 reported that the inner display was broken and ink had leaked from the display, attributing these issues to physical damage caused by falling, hard pressing or liquid exposure which are not covered under the warranty. The complainant is not in a position to use the mobile phone due to display discolouration and it made difficult for his day to day affairs as all his contact list and messages were also couldn’t be seen. From the information provided by the service center clearly shows that the complainant was clearly cheated by the OP’s which has sold defective mobile phone. At the time of offering to sell the mobile phone the OPs were promised that they will provide prompt services and necessary repair incase of any complaint. But the OPs are not ready to cure the defects of the phone. The act of OPs the complainant caused much mental agony and financial loss. So there is deficiency of service and unfair trade practice on the part of OPs. Hence the complaint.
After filing complaint notice issued to all OPs. After receiving notice OP No.1 and 2 appeared before the commission and filed their written version. OP 3 notice received and not appeared before the commission and OP No.3 set ex-parte. OP No.1 contended that he is the dealer of the product. The service center cancelled the warranty. He reported that the inner display was broken and ink had leaked from the display and these issues to physical damage caused by falling, hard pressing or liquid exposure. The 2nd OP the manufacturer who is solely responsible for providing the warranty. So OP 1’s liability may be exonerated. OP No.2 contended that the complainant did not follow the standard procedure for repairs before filing the complaint with the commission. The complainant failed to submit any supporting documents or expert opinion to substantiate their claim. The 2nd OP also submit that any defect arising during the warranty period would be repaired free of charge, provided there was no physical damage. So there is no deficiency of service on the part of the OP No.2. So the complaint may be dismissed.
On 10/12/2021 the complainant filed a petition to appoint an expert commissioner to inspect the mobile phone. The petition allowed and Mr. Akhil Krishnan is appointed as the expert commissioner and he inspected the phone and filed a report before the commission and marked as Ext.C1.
On the basis of the rival contentions by the pleadings the following issues were framed for consideration.
- Whether there is any deficiency of service on the part of OPs?
- Whether the complainant is entitled for any relief?
- Relief and cost?
The evidence consists of the oral testimony of Pw1 and Ext. A1 to A3 and Ext.C1 marked. On OP’s side Ext.B1 to B3 marked.
Issue No.1
The complainant adduced evidence before the commission by submitting his chief affidavit in lieu of his chief examination to the tune of the pleadings in the complaint and denying the contentions in the version. He was cross examined as Pw1 by the OPNo.2. On OPs’ side no oral evidence. OP2 produced 3 documents and marked as Exts. B1, B2 and B3. The complainant relied upon Ext.A1 to A3 documents and Ext.C1 report also. According to the complainant on 10/11/2018 the complainant had purchased a Samsung Galaxy J6 32 GB mobile phone for an amount of Rs.11,500/- from OP1’s shop and shown in Ext.A1. After that the complainant noticed that a red spot on the display discolouration and it made difficult for his day to day affairs all his contact list and messages were also couldn’t been seen. As per Ext. A2 the acknowledgment of service request the defect description noted as “display discolouration”. Ext.A3 is the warranty card. As per Ext.A1 the complainant had purchased the mobile phone on 10/11/2018 and he produced the mobile phone before OP No.3 on 04/09/2019 within the warranty period. But OP No.3 is not repaired the phone within the warranty period. As per the expert report he clearly noted that “നിലവിൽ ഫോണിെൻറ ബാറ്ററിയും അതുപോലെ displayയും damage ആണ്. ചില ഫോണുകൾ പ്രവർത്തിച്ചുകൊണ്ടിരിക്കുന്ന സമയത്ത് തന്നെ displayയിൽ ചെറിയ രീതിയിലുള്ള Black dot പ്രത്യക്ഷപ്പെട്ട് ദിവസങ്ങൾക്ക് ശേഷം display പൂണ്ണമായും പ്രവർത്തന രഹിതമാവാം. ഇതിന് ഉള്ള പ്രധാന കാരണം ഫോൺ പ്രവർത്തിക്കുന്ന സമയത്ത് ഉണ്ടാക്കുന്ന അമിതമായ ഹീറ്റ് ആണ്. Not to seen any physical damage also. On OP’s side Ext.B1 to B3 also marked. According to the complainant failure to cure the defects of the mobile phone the OPs are directly bound to redressal the grievances caused to the complainant. So the act of OPs the complainant caused much mental agony and financial loss. So there is deficiency of service and unfair trade practice on the part of OPs. Hence the issue No.1 found in favour of the complainant and answered accordingly.
Issue No.2 &3
As discussed above the OPs are not ready to cure the defect of the mobile phone within the warranty period. The complainant produced Ext.A1to A3 documents which clearly show that the mobile phone is defective within the warranty period. As per Ext.C1 report the expert suggest that display discolouration could occurred due to heat from regular use, not due to physical damage. Therefore we hold that the OPs 1 to 3 are jointly and severally liable to replace the mobile phone with a new one in the same model or to pay the value of mobile phone for Rs.11,500/- to the complainant along with Rs.8,000/- as compensation for mental agony cause d to the complainant and Rs.5,000/- as litigation cost. Thus the issue No.2 &3 are also accordingly answered.
In the result the complaint is allowed in part directing the opposite parties 1 to 3 are jointly and severally liable to replace the mobile phone with new one in the same model or to pay the value of mobile phone Rs.11,500/- to the complainant along with Rs. 8,000/- as compensation for mental agony caused to the complainant and Rs.5,000/- as litigation cost within 30 days of receipt of this order. In default the amount of Rs. 11,500/- carries 12% interest per annum from the date of order till realization. If Opposite parties fails to comply the order the complainant is at liberty to execute the order as per the provisions of Consumer Protection Act 2019. After the said proceedings the opposite parties are at liberty to take back the mobile phone from the complainant.
Exhibits for complainant
A1- Tax invoice dated 10/11/2018
A2- Acknowledgment of service request
A3-Warranty card
C1-Expert request
Exhibits for complainant
B1-Warranty card
B2- Acknowledgment of service request
B3- Detected image of the defect in the handset
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forwarded by order/
Assistant Registrar
