DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION ERNAKULAM
Dated this the 28th day of February 2023.
Filed on: 13/01/2019
PRESENT
Shri.D.B.Binu President
Shri.V.Ramachandran Member Smt.Sreevidhia.T.N Member
C.C No. 24/2021
between
COMPLAINANT
Alice TJ, W/o. Late Francis Antony, Kattiparambil (H), Mundamveli.P.O, Kochi- 682 507
Vs.
OPPOSITE PARTIES
1. Mr. Algiers Khalid, Proprietor, Poovath International Kunjalus Place, PT. Usha Road, Opposite Maharajas College Stadium, Cochin- 682 011
2. Techno Trade Retail Services India Private Limited, Room No. A-VII, Basement Floor, Penta Menaka, Shanmughan Road, Ernakulam- 682 031 Represented by its Managing Director
3. HMD Mobile India Pvt. Ltd, Flat No. 814, 8th Floor, Ashoka Estate 24, Barakhamba Road, New Delhi-110001 Represented by its Managing Director
F I N A L O R D E R
D.B. Binu, President.
1. A brief statement of facts of this complaint is as stated below:
The complaint was filed under Section 35 of the Consumer Protection Act, 2019. The brief facts, as averred in the complaint, are that in the complainant is a retired Office Superintendent, at INS Venduruthy Naval Base, Kochi. The opposite party No. 1 is the authorized service centre of the Nokia Mobile phone. The 2nd opposite party is the authorized retail dealer of the 1st opposite party and the 3rd opposite party is the authorized representative of HMD India Pvt Lee Who is the agent of the Nokia Mobile Phone in India. On 14.09.2019 the complainant purchased a Nokia mobile phone (Nokia 2.1 Blue/ Copper 358095092308027) having handset No. 85171290 and its accessories as per Invoice No. 88/NP74521 dated 14.09.2019 from the 2nd opposite party for her personnel use. On the date of purchase itself, the subject mobile phone showed some defects. Therefore, the complainant invited the attention of Mr. K.R. Arun the salesman who belongs to the 2nd opposite party. Then he assured the complainant that it will work properly in running. Three months after its purchase, the display of the handset went off. The complainant approached the salesperson of the 2nd opposite party. After having a thorough check-up dealer’s point, it was informed that the said defect can be repaired only by the 1st opposite party. On 04.01.2020 the complainant approached the 1st opposite party. After checking the handset, the 1st opposite party was informed that there are some defects in the motherboard and asked the complainant to report it after 2 weeks. On 07.02.2020 again the complainant approached the 1st opposite party. On that day, the 1st opposite party informed the complainant that the motherboard is defective and returned the handset to the complainant stating that the 1st opposite party is not ready to repair the handset. After the purchase of the subject mobile phone from the 2nd opposite party it was handled only by the opposite parties No. 1 and 2. Therefore, if there is any defect in the mobile phone, the opposite parties have the responsibility to repair it or replace it new one. Instead of the repair of the handset the opposite parties are trying to escape from liability by saying lame excuses. The subject mobile phone was purchased on 14.09.2019. The defect occurred in the handset during the warranty period. Therefore, as per the warranty, the opposite parties are liable either to repair the mobile handset or replace it with anyone. But the opposite parties are not inclined to do the same. On the purchase of a mobile handset, the opposite parties are responsible for either repairing or replacing the mobile phone if any defects occur during the warranty period. But the opposite parties are trying to escape from the liability. There is a deficiency in service on the part of the opposite parties. The action of the opposite parties is an unfair trade practice and is liable to proceed. On 28.02.2007 the complainant was constrained to issue a legal notice to the opposite parties No. 1 and 2 seeking for repair or replace the subject mobile phone within 15 days from the receipt of the said notice. Both the opposite parties received the notice. The 2nd opposite party issued a reply notice dated 12.03.2020 raising false and untenable contentions and denied the liability. There is no truth or merit in the contentions in the reply notice of the 2nd opposite party. The 1st opposite party issued the reply through email dated 01.04.2020. The statement in the reply e-mail was that the post receiving the device the authorized service centre had conducted a validation of the physical condition of the device and found that the device does not meet the manufactures limited warranty terms and conditions, as the device has been found to tamper. The said contention of the 1st opposite party is false and misleading. After the purchase of the subject mobile, it was handled only by the 1st and 2nd opposite parties. The opposite parties are raising untenable contention to escape from their liability. It is further stated that the opposite party had shared a repair estimate with the complainant for approval, and to date, the repair estimate has not been approved by the complainant. It is false and misleading. No repair estimate has been ever served on the complainant as alleged. After the receipt of the e-mail communication from the 3rd opposite party series of talks were there between the complainant and the 3rd opposite party. Ultimately on the advice of the 3rd opposite party on 07.05.2020 the complainant has entrusted the trans-Receiver (Mobile Handset) with the 1st opposite party and assured that the 1st opposite party will take necessary steps to repair the trans Receiver. Contrary to assurance the 1st opposite party is demanding the cost of the repair from the complainant to repair the Trans Receiver entrusted. The said act of the 1st opposite party is illegal and contrary to the assurance given by the 3rd opposite party and against the terms and conditions of the warranty. The opposite party’s act is only for the purpose of unlawful enrichment. In spite of the best efforts of the complainant, the opposite parties failed to either make necessary repairs to the trans Receiver or to replace the same with a new one. The complainant has suffered mental agony and sufferings by the act of the opposite parties. The complainant had approached the Commission seeking an order directing the 1st opposite party to return the Trans Receiver after making necessary repairs or to replace the Trans Receiver with a new one or pay the cost of the mobile handset, directing the opposite parties to pay an amount of Rs.25,000/- as compensation and the cost of the proceedings.
2. Notice
Notices were issued from the Commission to the opposite parties. The 1 and 2 opposite parties received the notice but did not file their versions. Consequently, the 1st and 2nd opposite parties are set ex-parte. The 3rd opposite party filed version.
3.The version of the Opposite Party No. 3
The mobile phone set Le, NOKIA 2.1 Blue was purchased by the Complainant after being satisfied with the quality, features, and genuineness and did not suffer from any manufacturing defect as admittedly the Complainant the handset had been working satisfactorily for more than three months without any fault and the handset had not encountered any defect. The handset got Tampere/Physically damaged due to sheer negligence and mishandling by the Complainant and hence any allegations by the Complainant without adducing any documentary evidence whatsoever, are baseless, false, deceitful, and untrustworthy. As per Job Sheet dated 04.01.2020, the Complainant admittedly approached opposite party No.1, however, the Complainant deliberately concealed the material facts from the Commission regarding the reason for not getting the handset rectified even under warranty conditions. The opposite party while responding to the legal notice dated 28.02.2020 of the Complainant submitted that the device. couldn't be covered in-warranty repair services as "...the device has been found to have Tampered/physical damage condition and to get the repair work done, the Complainant would have to pay for the repair charges, however, the Complainant could be accommodated for discount 25% on the total repair expenses, but the Complainant denied to pay and demanded free repair services as per the terms and condition of the warranty document while failing to understand that the warranty conditions are not applicable on "Tampered/Physical damage devices. The complaint of a manufacturing defect in the product, if any, as alleged, has not been supported by any document. The Complainant's case is a sheer reflection of misuse and mishandling of the mobile phone, hence the answering opposite party cannot be held responsible for irresponsible, careless, and negligent handling of the mobile phone by the Complainant. In this regard, it would be pertinent to mention that the warranty period covers the range of faults that ensue normally from the mechanical functioning of the mobile set without any interference or outside influences. The Complainant has made unsubstantiated allegations against the third opposite party that have no legs to stand and falls flat from the very burden of their own contradictions. The limited warranty document is a part of the user manual and is inserted in every package of a mobile phone manufactured by answering Opposite Party and is a caveat to the buyer, clearly providing that in the event of any defect/problem in the handset of a Nokia customer, the handset will be repaired "free of charges" by the answering Opposite Party or its authorized service network, provided, firstly, the handset is a genuine handset, secondly, it suffers from a defect or a problem during the limited a warranty period and the said defect/problem is covered under the limited warranty offered by the Opposite Party, defect in material and workmanship and thirdly, the consumer does not violate/breach any of the terms and conditions as stated in the limited warranty document. The Complainant was well aware of the fact that the defect in the handset was not covered under the warranty repair service as the handset was 'Tampered/ Physical damaged' when the Complainant approached ASC/opposite party No.1 for the first time for repair of the handset. Further, when a handset is suffering from a defect covered under the limited warranty which occurs during the validity of the warranty period and such a defect is beyond repair, then in such a rare event, the defective part is replaced and or the handset is replaced by another handset of the same model to avoid any kind of inconvenience or loss to the customer. The Replacement as per the limited warranty terms is limited only to those cases where repair is not possible and/or where there is a genuine problem of repeated repairs and the handset was not tampered with or found liquid damaged. The liability of the Opposite Party as the manufacturer of the handset in any manner does not arise and no defect arose in the manufacture of the handset as the Opposite Party takes all reasonable care as they carry out proper quality control and testing before delivery into the market.
4). Evidence
The complainant had filed a Proof affidavit and 11 documents that were marked as Exhibits-A-1 and A-11.
Exhibit A-1. Retail Invoice dated 14.09.2019.
Exhibit A-2. Warranty conditions and 1-year extended warranty.
Exhibit A-3. Service job sheet dated 07.05.2020 issued by the 1st opposite party.
Exhibit A-4. Delivery note dated 04.01.2020 issued by the 1st opposite party
Exhibit A-5. Office copy of the legal notice dated 28.02.2020 issued by the Complainant to the 1st and 2nd opposite parties.
Exhibit A-6. Reply notice dated 12.03.2020 issued by the 2nd opposite party.
Exhibit A-7. Reply e-mail dated 01.04.2020 issued by the 3rd opposite party
Exhibit A-8. Office copy of the legal notice dated 06.07.2020 issued by the Complainant to the 1st and 2nd opposite parties.
Exhibit A-9. The postal A/D shows the receipt of legal notice dated 06.07.2020 by the 1st opposite party.
Exhibit A-10. The postal A/D showing the receipt of legal notice dated 06.07.2020 by the 2nd opposite party
Exhibit A-11. Letter dated 25.08.2020 issued by the 3rd opposite party.
5) The main points to be analysed in this case are as follows:
i) Whether the complaint is maintainable or not?
ii) Whether there is any deficiency in service or unfair trade practice from the side of the opposite parties to the complainant?
iii) If so, whether the complainant is entitled to get any relief from the side of the opposite parties?
iv) Costs of the proceedings if any?
6) The issues mentioned above are considered together and are answered as follows:
In the present case in hand, the complaint was filed under Section 35 of the Consumer Protection Act, 2019. As per Section 2(7) of the Consumer Protection Act, 2019, a consumer is a person who buys any goods or hires or avails of any services for a consideration that has been paid or promised or partly paid and partly promised, or under any system of deferred payment. The complainant had produced a copy of the retail Invoice dated 14.09.2019 for the purchase of a Nokia mobile phone (Nokia 2.1 Blue/ Copper 358995092305027) having handset No. 85171290 from the 2nd opposite party (Exhibit A-1). This document revealed that the complainant had paid the requisite consideration for the product to the opposite parties. Therefore, we are only to hold that the complainant is a consumer as defined under the Consumer Protection Act, 2019. (Point No. i) goes against the opposite parties.
The mobile phone purchased by the complainant on 14.09.2019 was defective during the warranty period. But the opposite parties are not inclined to either repair the mobile handset or replace it with a new one. Hence, the complaint.
The complainant submitted that on the date of purchase itself, the mobile phone showed some defects. Therefore, the complainant approached the salesman belonging to the 2nd opposite party. Then he assured the complainant that it will work properly in running. Unfortunately, 3 months after its purchase, the display of the handset went off. Then the complainant approached the 2nd opposite party. After having a thorough check-up at the dealer’s point, it was informed that the said defect can be repaired only by the 1st opposite party. The complainant approached the 1st opposite party. After checking the handset by the 1st opposite party the complainant was informed that there are some defects in the motherboard and asked to report after 2 weeks. Delivery note dated 04.01.2020 issued by the 1st opposite party (Exhibit A-3). On 07.02.2020 again the complainant approached the 1st opposite party. On that day, the 1st opposite party informed the complainant that the motherboard is defective and returned the handset to the complainant stating that the 1st opposite party is not ready to repair the handset free of cost. The service job sheet dated 07.05.2020 was issued by the 1st opposite party (Exhibit A-4). On 25.08.2020 the 3rd opposite party issued a letter to the complainant The letter dated 25.08.2020 was issued by the 3rd opposite party (Exhibit A-11). In the said letter also the earlier contentions have been repeated by the 3rd opposite party by contending that the device does not meet the manufactures limited warranty terms and conditions as the device has been tempered. There is no truth or merit in such contentions. The opposite parties are taking such contentions only to escape from their liability. The handset showed some defects on the date of purchase itself. Subsequently, when the device was not working the complainant entrusted the device to the 2nd opposite party, and thereafter on the advice of the 2nd opposite party, it was entrusted to the 1st opposite party. The 1st opposite party has wilfully contented that the instrument Tampere with. It was further contended that the 1st opposite party has shared a repair estimate with the complainant to date, no such estimate has been served on the complainant The 1st opposite party is taking an uncompromising stand that they will not repair the handset and making false allegations without any reason or basis. No prudent businessman will take such an unethical stand as taken by the 1st opposite party.
The opposite party No. 1 and 2 failed to appear before this Commission in spite of receipt of notice from this commission and they were set ex-parte. The third opposite party entered an appearance in the case and filed a version.
The counsel for the third opposite party submitted that the defect as occurred in the handset does not meet the Manufacturer’s limited warranty terms and conditions as attached to the handset hence the handset is not covered for free-of-cost repair under the warranty repair. The Replacement as per the limited warranty terms is limited only to those cases where repair is not possible and/or where there is a genuine problem of repeated repairs and the handset was not tampered with or found liquid damaged. The Hon'ble National Consumer Dispute Redressal Commission in several cases including in the matter of B.H. Keruli (Dr) /s M.D.S Mitra & Co. III (2002)) CPI 299 (NC) held that the claim for defect must be proved by documentary evidence showing that the defect occurred during the warranty period and/ or was covered by the maintenance contract. There is nothing on record to show that there was any defect, either manufacturing or mechanical, as alleged, in the impugned product/mobile phone and in such a circumstance the Complainant has no right or locus standing to file the present Complaint.
We have also noticed that Notices were issued from the Commission to the opposite parties No. 1 and 2 but did not file their versions. Hence both opposite parties set ex-parte. The complainant had produced 11 documents which are marked as Exbt.A-1 to A-11. But the opposite parties No. 1 and 2 did not make any attempt to appear in the case and participate in the above proceedings before this Commission and did not make any attempt to set aside the ex-prate order passed against it. It was further stated that this illegal, arbitrary, and unjustified act of the opposite parties No. 1 and 2 amounted to deficiency in service, indulgence in unfair trade practice, and caused mental agony and physical harassment to the complainant.
The opposite parties’ conscious failure to file their written version in spite of having received the Commission’s notice to that effect amounts to an admission of the allegations levelled against them. Here, the case of the complainant stands unchallenged by the opposite parties No. 1 and 2. We have no reason to disbelieve the words of the complainant as against the opposite parties No. 1 and 2. The Hon’ble National Commission held a similar stance in its order dated 2017 (4) CPR page 590 (NC).
The opposite parties No. 1 and 2 had inadequately performed the service as contracted with the complainant and hence there is a deficiency in service, negligence, and failure on the part of the opposite parties No. 1 and 2 in failing to provide the Complainant desired service which in turn has caused mental agony and hardship, and financial loss, to the Complainant.
We find the issue Nos. (II), (III) and (IV) are found in favour of the complainant for the serious deficiency in service that happened from the side of the opposite parties No. 1 and 2. Naturally, the complainant had suffered a lot of inconvenience, mental agony, hardships, financial loss, etc. due to the negligence on the part of the opposite parties No. 1 and 2. The Commission has examined the version of 3rd opposite party and came to the conclusion that 3rd opposite party is nothing unjustifiable from the part of 3rd opposite party and hence 3rd opposite party can’t held liable to imposed for any compensation for which the complainant ought to get and hence the 3rd opposite party excluded from the liability of payment of cost and compensation hencewith.
In view of the above facts and circumstances of the case, we are of the opinion that the opposite parties are liable to compensate the complainant.
Hence the prayer is partly allowed as follows:
i. The first Opposite Party shall return the Trans Receiver after making necessary repairs or replace the Trans Receiver with a new one or pay the purchase price of the mobile handset to the complainant.
ii. The Opposite Parties No. 1 and 2 shall be jointly paid Rs.10,000/- (Rupees ten thousand only) as compensation for the mental hurt, loss, agony, and hardship caused to the complainant.
iii. The Opposite Parties No. 1 and 2 shall also pay the complainant Rs.5000/- towards the cost of the proceedings.
The above-mentioned directions shall be complied with by Opposite Parties 1 and 2 jointly and severally within 30 days from the date of the receipt of a copy of this order, failing which the amount ordered vide (i) and (ii) above shall attract interest @7.5% from the date of receipt of a copy of this order till the date of realization.
Dictated to the Confidential Assistant Smt. K.P. Liji transcribed and typed by her corrected by me and pronounced in the Open Commission on this 28th day of February, 2023.
Sd/-
D.B.Binu, President
Sd/- V.Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded/by Order
Assistant Registrar
APPENDIX
COMPLAINANT’S EVIDENCE
Exhibit A-1. Retail Invoice dated 14.09.2019.
Exhibit A-2. Warranty conditions and 1-year extended warranty.
Exhibit A-3. Service job sheet dated 07.05.2020 issued by the 1st opposite party.
Exhibit A-4. Delivery note dated 04.01.2020 issued by the 1st opposite party
Exhibit A-5. Office copy of the legal notice dated 28.02.2020 issued by the Complainant to the 1st and 2nd opposite parties.
Exhibit A-6. Reply notice dated 12.03.2020 issued by the 2nd opposite party.
Exhibit A-7. Reply e-mail dated 01.04.2020 issued by the 3rd opposite party
Exhibit A-8. Office copy of the legal notice dated 06.07.2020 issued by the Complainant to the 1st and 2nd opposite parties.
Exhibit A-9. The postal A/D shows the receipt of legal notice dated 06.07.2020 by the 1st opposite party.
Exhibit A-10. The postal A/D showing the receipt of legal notice dated 06.07.2020 by the 2nd opposite party
Exhibit A-11. Letter dated 25.08.2020 issued by the 3rd opposite party.
OPPOSITE PARTIES’ EVIDENCE
Nil
Despatch date:
By hand: By post
kp/
C.C. No. 24/2021
Order Dated: 28/02/2023
