BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052           

C.C.No.2025/2012

DATED THIS THE 1^st AUGUST 2013

PRESENT

SRI.J.N.HAVANUR, PRESIDENT

SRI.H.M.SHIVALINGAPPA, MEMBER

Complainant: -             

                                                J.Narayana Reddy,

                                                S/o. Jayarama Reddy,  

                                                Aged about 36 years,

                                                Residing at no.104,

                                                9^th cross, Maruthi court,

                                                Hebbal, Dasarahalli,

                                                Bangalore

V/s

Opposite parties: -                 

1.     Acer India Pvt. Ltd,

Embassy Heights, 6^th floor, No.13, Magarath Road, Next to Hosmat hospital, Bangalore -25,

Reptd by its Manager,

2.     Viabhav Systems and Solutions

India Pvt. Ltd, Acer Customer Service Centre, No.2282/A, ARR Nest, 1^st Floor, 6^th Cross, Kodihalli, Off HAL Airport Road, Bangalore -08

Reptd by its Manager,

3.     M/s. Sangeetha, No.66, Matadahalli, RT Nagar main Road, Bangalore,

Reptd by its Proprietor

ORDER

SRI.J.N.HAVANUR, PRESIDENT

        This is a complaint filed by the complainant against the OPs, under section 12 of the Consumer Protection Act, 1986, praying to pass an order, directing the OPs to pay compensation of Rs.50,000=00 towards cost of mobile set, mental agony, financial loss, harassment, hardship and to grant such other relief under the circumstances of the case, in the interest of justice and equity. 

2. The brief facts of the complaint can be stated as under.

The complainant had purchased S100 Ferrari-Acer-Smart phones from the 3^rd OP on 12-9-2011 for a sum of Rs.17,764=00. The 1^st OP is the head office and 2^nd OP is the customer service centre of 1^st OP. The OPs have given one year warranty to the above said mobile from the date of purchase. After purchase of the mobile set, the complainant started facing problem in the mobile set such as battery was not getting charged and SHH is not powering on. As such the complainant has approached the 2^nd OP which is the servicing centre of 1^st OP and handover the mobile set to 2^nd OP and reported the problem. The 2^nd OP has issued job card in the name of complainant on 9-7-2012. The 2^nd OP has issued a customer service call slip to the complainant on 13-7-2012 and directed the complainant to pay Rs.8,000=00 to carry out the repair. When the complainant refused for the same as the same is within warranty period, the OP in order to escape from its liability have falsely stated there is physical damage caused to the mobile. The 2^nd OP has falsely stated that, charger socket has been repaired and replaced by the 3^rd OP vendor. There is one year warranty for the mobile set purchased by the complainant and there was a problem detected within the warranty period and the complainant has handedover the mobile and reported the problem to 2^nd OP within the warranty period. All the OPs are bound to replace the mobile of the complainant and handover the same to the complainant as warranty period was not expired. The 2^nd OP has demanded amount from the complainant for the repair of the mobile, eventhough the warranty period is not yet expired. The complainant has never given the mobile for repair to 3^rd party, except 2^nd OP. As such the OP has issued false endorsement by giving vague reasons. The OP is bound to get the mobile replaced or repay the amount paid by the complainant. The act of the OPs clearly shows the malafide attitude to cheat the complainant and deficiency in service. Due to the acts of the OPs, the complainant has undergone great hardship loss and injury due to the deficiency of service, it clearly shows that, the OPs have committed deficiency in service rendered to the complainant and has given defective goods to the complainant and not rectified the said problem. Hence, the present complaint is filed.

          3. After service of the notice, the OPs have appeared through their counsel and filed versions separately.

4. The averments of the version of OP no.1 can be stated as under:

          The complaint of complainant is not maintainable either in law or on facts. It is admitted that the complainant had purchased Acer Ferrari Smart Phone through 3^rd OP on 12-9-2011 for a sum of Rs.17,764=00, the warranty period of smart phone is already expired on 11-9-2012. The main board of the handset was clearly in damaged condition when authorized service centre of 1^st OP opened while at the time of receiving the complaint, the mother board is in damaged condition due to repair service undertaken through the external agency. The damage can be seen from the photograph taken by the authorized service centre of 1^st OP. During the course of verification of the product, it was also noticed that external parts like screw which are also of non Acer products and this clearly establishes that complainant has undertaken the repair of the handset without the knowledge of the 1^st OP and 2^nd OP. As laid down in the Acer limited product warranty, the complainant has violated the warranty policy, so authorized service centre of the 1^st OP has refused to provide the warranty services. The allegations under para no.5 of the complaint are far from truth and the complainant intentionally concealed the facts as disclosure of the actual facts would deny him the warranty services. The complainant is not a consumer, the complainant is not honest in submitting the true facts and approached this forum with colourful mind by misleading and mis-presentation, and the complaint and prayer of this complaint is premature. Hence it is prayed to dismiss the complaint with exemplary cost.

          5. The averments of version of the 2^nd OP can be stated as under:

          The complaint of the complainant is not maintainable. The 2^nd OP is only doing the role as a felicitator and he is permitted to sell the mobile sets without opening the seal of the sealed container box as a retailer and so the manufacture is only responsible for all the defects arisen out of the mobile set. The 3^rd OP being a seller of the mobile phones to the complainant is always ready to attend to the services of the mobile phone. It is illegal on the part of the complainant to take objections to the observations made by the forum This OP has not sold any mobile except servicing the mobile phone. From the document available on the file of the forum it is made clearly that, it is the complainant on whose negligence the malfunctioning of mobile phone has started and complainant himself is responsible for his negligent acts and cannot blame any persons in this regard. This OP denies all other allegations which are prejudicing the interest of the 2^nd OP which are not specifically traversed herein above are hereby denied as false. Hence it is prayed to dismiss the complaint with cost.

          6. The averments of version of the OP no.3 can be stated as under:

          The complaint of the complainant is not maintainable, and it is liable to be dismissed in limine. The complainant has purchased S100 Ferrari Acer mobile handset smart phone on 12-9-2011 from the 3^rd OP, the 3^rd OP is only doing the role as a fecilitator and this OP is permitted only to sell the mobile sets without opening the seal of the sealed container box, and so the manufacture who being the 1^st OP is only responsible for all the defects arisen out of the mobile set. This OP has taken due care of the complainant at the time of the purchase of mobile set from this OP and the complainant was aware that this OP is only seller, and immediately after the mobile set sold by this OP developed problem and approached the 2^nd OP who is authorized service centre of the 1^st OP and gave the mobile set for repair, and the 2^nd OP has failed to provide services to the complainant’s satisfaction and for that this OP is not responsible for the same. There is no deficiency of service on the part of the OP no.3, hence, it is prayed to dismiss the complaint with cost.

7. So from the averments of the complaint of the complainant and objection of the OPs, the following points arise for our consideration.

1.                           Whether the complainant proves that, the OPs are negligent and there is deficiency of service on the part of the OPs in not rectifying the mistake of the mobile hand set as prayed in the complaint?

2.                           If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?

3.                           What order?

8. Our findings on the above points are;

          Point no.1:  In the Affirmative  

Point no.2:  The complainant is entitled to refund

                   of Rs.17,764=00 alongwith interest at

                   7% p.a. on the said amount from date of

payment i.e. on 12-9-2012 within 30 days

from the date of this order, failing which, the OPs shall pay the said amount to the complainant alongwith 8% interest p.a. on the said amount from the date of payment to till the date of realization and cost of

Rs.2,000=00

          Point no.3:  For the following order

REASONS

          9. So as to prove the case, the complainant has filed his affidavit by way of evidence and produced documents which are marked as annexure-A to G and also produced six documents with list dated 23-1-2013. On the other hand, one Prathima, who being the Assistant Manager working in 3^rd OP has filed her affidavit by way evidence on behalf of the 3^rd OP and produced no documents. The OPs no.1 and 2 have not filed any affidavit on their behalf, eventhough, they have filed version separately. We have heard the arguments of both parties, and we have gone through the oral and documentary evidence of both sides meticulously. 

10. One J.Narayana Reddy, who being the complainant has stated in his affidavit that, he purchased S100 Ferrari-Acer-Smart phones from the 3^rd OP on 12-9-2011 for a sum of Rs.17,764=00. The 1^st OP is the head office and 2^nd OP is the customer service centre of 1^st OP. The OPs have given one year warranty to the said mobile from the date of purchase. There arose a problem in the mobile set such as battery was not getting charge and SHH is not powering on, so he approached the 2^nd OP being the service centre and handed over the mobile set to 2^nd OP and told the problem. The 2^nd OP has issued job card in his name on 9-7-2012, and the 2^nd OP has issued a customer service call slip to him on 13-7-2012 and directed him to pay Rs.8,000=00 to carry out the repair. When he refused for the same as it was within warranty period, the OP in order to escape from its liability stated that there is physical damage caused to the mobile. The 2^nd OP has falsely stated that, charger socket being repaired and replaced by the 3^rd OP vendor, and there was a problem detected within the warranty period and he has handed over the mobile and reported the problem to 2^nd OP within the warranty period. All the OPs are bound to replace the mobile set and handover the same to him as warranty period has not expired. The 2^nd OP has demanded amount from him for repair of the mobile, but he refused to pay the amount as the same is within warranty period. He has never given the mobile for repair to 3^rd party, except 2^nd OP. As such the OP has issued false endorsement by giving vague reasons. Hence, the OPs are bound to get the mobile replaced or repay the amount paid by him. The act of the OPs clearly shows the malafide attitude to cheat him and deficiency in service, his mobile has still a warranty. Due to the acts of the OPs, he has undergone great hardship loss and injury due to the deficiency of service, the OPs have given him defective goods and not rectified the problem, and treated him harshly and he was made to move around the OP’s officials, and he has been put to severe hardship, loss and injury and suffered untold misery for which he has to be compensated. He got issued legal notice dated 14-8-2012, the OPs no.1 and 2 did not reply, but the OP no.3 gave frivolous reply, so he filed the present complaint, so order be passed as prayed in the complaint.

11. Document no.1 of the complainant list dated 23-1-2013 is original copy of invoice dated 12-9-2011 issued by 3^rd OP in the name of complainant and that document shows that on the said date, the complainant has purchased s100-Ferrari-Acer – smart phones for a sum of Rs.17,764=00 and on the back page of the said document, it is stated that, the said mobile set is covered with insurance and that insurance was made by the Oriental Insurance Co. Ltd. Document no.2 is the job card issued by the service center of the 1^st OP issued in the name of complainant dated 9-7-2012 and in the problem reported by the customer column, it is stated that, battery is not getting charged and SHH is not powering on and signature of the complainant is found on the left side of the document, and one Ms.Amitha has signed on the right side portion of the document on behalf of the service center of the 1^st OP. Document no.3 is customer service call slip issued by the service center of OP no.1 dated 13-7-2012 in the name of complainant and in the problem column, it is stated as battery is not getting charged and SHH is not powering on. Next documents are the postal receipts and two acknowledgment cards. Next document of the complainant is copy of legal notice issued by the complainant to the OPs no.1 to 3. Last document of that list is reply given by the 3^rd OP denying the contents of notice of the complainant. Annexure-A to G are the copies of the said original documents of the complainant. The said documents go to reveal that, the complainant has purchased a mobile hand set from the 3^rd OP on 12-9-2011 by paying Rs.17,764=00 and warranty given by the OPs to the said mobile set was for one year from the date of purchase, and after purchasing the mobile hand set, the complainant started facing the problem in the mobile set such as battery is not getting charged and SHH is not powering on, and the complainant gave the mobile set to the 2^nd OP for repair on 9-7-2012 and 13-7-2012 i.e. well within warranty period and inspite of it the mobile hand set of the complainant was not repaired properly. The complainant has produced warranty booklet of Acer Company product wherein under clause 1.4 of limited product warranty, it is stated as under:

“1.4 If you make a claim under this warranty, Acer will, at its option, repair or replace any defective system or any parts thereof covered by this limited warranty by using new or factory refurbished parts or systems, in the event that Acer opts to use factory refurbished parts or systems”.

12. The said clause of warranty makes it clear that, if the customer makes the claim under this warranty, the company will at its option, repair or replace any defective systems or any parts thereof covered by this limited warranty. Since, the OPs have not rectified the mistake of the mobile set purchased by the complainant, legal notice was issued to OPs and inspite of it the problem of the complainant was not solved by the OPs. The oral evidence of the complainant to the effect that, after purchase of the mobile set, he started facing the problem in the mobile set and after handing over the mobile set to the OPs for repair, the same is not rectified and the problem was well within the warranty period stands corroborated by the original invoice bill issued by the 3^rd OP, job cards, notice of the complainant and reply notice of the OP and relevant warranty condition of the mobile hand set. This is all about the material evidence of the complainant.

13. Though the OPs no.1 and 2 have filed version separately, they did not choose to file affidavit evidence on their behalf.

14. One Prathima who being the Assistant Manager working in OP no.3 has stated in her affidavit that, the complainant has purchased S100 Ferrari Acer mobile handset smart phone on 12-9-2011 from the 3^rd OP, and OP no.3 is permitted to sell the mobile sets without opening the seal of the sealed container box. Hence, the 1^st OP who being the manufacture is only responsible for all the defects in the mobile set. The 3^rd OP has taken atmost care in attending to the complainant and there is no deficiency of service on the part of the OP no.3. So, the complaint be dismissed with cost against the 3^rd OP.

15. By reading of the evidence of the 3^rd OP, it is made clear that, the 3^rd OP is a dealer of products of OP no.1 and accordingly he sold the mobile set of the 1^st OP to the complainant. The OP no.3 has stated clearly in the evidence that, the 1^st OP who being the manufacturer is responsible for all the problems in the mobile set. Since, the evidence of the 3^rd OP is not supported any believable documentary evidence. So the oral testimony of the employee of OP no.3 merits no much consideration. As we already stated that the OPs no.1 and 2 who being the manufacturer and customer service centre have not filed any affidavit to support the version filed by them. In view of not filing any affidavit evidence by OPs no.1 and 2, the version filed by the manufacturer and customer service centre respectively cannot be taken into consideration, so under the circumstance, the oral testimony of the complainant has mentioned above as remained uncontroverted. Besides oral evidence of the complainant stands corroborated by documentary evidence.    

16. On a careful scrutiny of the case of complainant, on the back ground of oral and documentary evidence produced on behalf of the complainant together with non-production of any documentary evidence by the 3^rd OP and non-filing of affidavit evidence by the 1^st and 2^nd OPs, it is made unambiguously clear that, the complainant who comes to forum seeking relief has proved with clear cogent and consistent material evidence that, after purchase of s100 Ferrari-Acer mobile handset smart phones from the 3^rd OP i.e. on 12-9-2011 for a sum of Rs.17,764=00 he started facing problem in the mobile set i.e. battery was not getting charged and SHH is not powering on and inspite of giving the mobile set to the 2^nd OP for attending the repairs well within warranty period i.e. one year warranty period from the date of purchase, it was not repaired properly. The act of the OPs  in not rectifying the problem of mobile set of the complainant well within warranty period tantamounts to negligence and deficiency of service on the part of the OPs no.1 to 3, and accordingly, we answer this point in a affirmative.

          17. In view of our affirmative finding on the point no.1, the complainant is entitled to claim of Rs.17,764=00 from the OPs no.1 to 3 alongwith nominal interest and nominal cost and not the amount as prayed in the complaint, and accordingly, the OPs no.1 to 3 are jointly and severally liable to pay Rs.17,764=00 to the complainant alongwith 7% interest per annum on the said amount from the date of payment i.e. on 12-9-2011 within 30 days from the date of this order, failing which, the OPs no.1 to 3 shall pay the said amount to the complainant with 8% interest per annum on the said amount from the date of payment i.e. on 12-9-2011 to till the date of realization, and the OPs no.1 to 3 are further directed to pay Rs.2,000=00 to the complainant towards cost of litigation. The complainant is directed to handover the mobile hand set to the OP no.1 or OP no.3 after receiving the entire amount from the OPs, and accordingly, we answer this point. In the result, for the foregoing reasons, we proceed to pass the following order.

ORDER

          The complaint of the complainant is partly allowed. The OPs no.1 to 3 are jointly and severally liable to pay Rs.17,764=00 to the complainant alongwith 7% interest per annum on the said amount from the date of payment i.e. on 12-9-2011 within 30 days from the date of this order, failing which, the OPs no.1 to 3 shall pay the said amount to the complainant with 8% interest per annum on the said amount from the date of payment to till the date of realization.

          The OPs no.1 to 3 are further directed to pay Rs.2,000=00 to the complainant towards cost of litigation.

          The complainant is directed to handover the mobile set to the OP no.1 or OP no.3, after receiving the entire amount from the OPs.

          Supply free copy of this order to both parties.  

          (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 1^st day of August 2013).

MEMBER                                 PRESIDENT