Date of filing:17.4.2013.
Date of disposal:16.7.2013.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM - II:
VIJAYAWADA, KRISHNA DISTRICT
Present: SRI A. M. L. NARASIMHA RAO, B.SC., B. L., PRESIDENT
SMT N. TRIPURA SUNDARI, B. COM., B. L., MEMBER.
SRI S.SREERAM, B.COM., B.A., B.L., MEMBER
TUESDAY, THE 16TH DAY OF JULY, 2013
C.C.No.58 of 2013
Between:
Sri Dasari Hari Krishna, S/o Seshagiri Rao, Hindu, C/o Sampangi Murali Krishna, D.No.32-30-4/7, Bhagath Singh Nagar Street, Opp.Andhra Bank, Machavaram, Vijayawada.
. … Complainant.
AND
1. Celkon Impex Pvt., Ltd., Rep., by its Director, H.No.1-98/7/28, Plot No.8, Ground Floor, Ushassu Sirimalle Enclave, Vittalrao Nagar, Madhapur, Hyderabad – 500 081.
2. Big C Mobiles Pvt., Ltd., Rep., by its Manager, Masjid Street, Arundalpet, Vijayawada – 2.
3. World Ace, Rep., by its Manager, Shop No.26, CVR Complex, Prakasam Road, Governorpet, Vijayawada.
4. V.S.Cell Phone Training Institute & Servicing Center, Rep., by its Manager, Celkon Authorized Service Center, Opp. NTR Complex, Upstairs Hero Honda Show Room, Vijayawada – 2.
.… Opposite Parties.
This complaint coming on before the Forum for final hearing on 11.7.2013 in the presence of Sri P.Satish Babu, counsel for complainant and opposite parties 1, 3 and 4 remained absent and opposite party No.2 appearing in person and upon perusing the material available on record, this Forum delivers the following:
O R D E R
(Delivered by Hon’ble Member Smt N.Tripura Sundari)
This complaint is filed under Section 12 of the Consumer Protection Act, 1986.
1. The averments of the complaint are in brief:
The complainant purchased a Celkon mobile phone from the 2nd opposite party for a sum of Rs.3,350/- on 13.1.2012 under a cash bill, and it was given one year warranty. But the said mobile hand set underwent repairs for several times from the date of its purchase. The complainant delivered the handset to the 3rd opposite party on 17.4.2012 and the same was sent by the 3rd opposite party to the 1st opposite party for affecting repairs. Later the 3rd opposite party delivered the handset to the complainant.
Again the mobile handset underwent repair and it was handed over to the 3rd opposite party on 11.5.2012 and the 3rd opposite party repaired the same and handed over to the complainant. Again the handset underwent repairs on 14.7.2012 and 22.8.2012 and it was handed over to the 4th opposite party for repairs but the opposite party 3 and 4 failed to rectify the defect of the handset. Therefore the complainant got issued a legal notice demanding the opposite parties to replace the mobile handset and pay compensation of Rs.20,000/-. The opposite parties neither received the notice nor gave any reply, which amounts to deficiency in service. Hence the complainant is constrained to file this complaint against the opposite parties either to replace the mobile handset by giving a new handset immediately to the complainant, to pay Rs.20,000/- towards damages and to pay costs.
2. On registering the C.C. notices were sent to the opposite parties 1 to 4. The opposite parties 1, 3 and 4 called absent and the 2nd opposite party filed version.
The 2nd opposite party denied all the allegations of the complainant and submitted that at the time of purchasing the mobile set the complainant was given full particulars of warranty issued by the manufacturer of C999 Celkon mobile push phone.
After accepting the warranty terms and conditions only the above mobile was purchased by the complainant. The cost of the mobile phone purchased by the complainant on
13.1.2012 is only Rs.3,190.48ps but not Rs.3,350/- as alleged. The bill amount inclusive of vat @ 5% on the value of mobile is Rs.159.52ps and that tax will be payable to the state and the 2nd opposite party has nothing to do with the same. It is evident from the complaint and the job sheet number 342 dated 14.7.2012 may be issued by the authorized service center i.e., the 4th opposite party but not by the 2nd opposite party. The 2nd opposite party is no way concerned to this dispute and the dispute is between the manufacturer’s authorized service centre. The manufacturer, who provides the warranty for the mobile phones, authorizes the authorized service centers to carry out the after sales service/repairs if in case of any defect that arise during the warranty period. Warranty will become void if any third party or retailer carryout the service. The manufacturer who provides warranty will reimburses the costs for the repairs. The complainant failed to file any document to show his allegations against the 2nd opposite party. The alleged defects i.e., automatic switch off, hanging, key pad become nonoperative, mouse unable to move etc., might be caused due to negligent acts of the complainant. Either the manufacturer or the 2nd opposite party cannot held responsible for the defects caused due to physical damages. It is necessary that the mobile phone purchased by the complainant has to be send for an expert for proper opinion under Section 32 of the Consumer Protection Act. There is no deficiency in service on the part of the 2nd opposite party and prayed to dismiss the complaint with costs.
3. On behalf of the complainant he gave his affidavit and got marked Ex.A.1 to Ex.A.11 and on behalf of the 2nd opposite party no affidavit and documents were filed.
4. Heard and perused.
5. Now the points that arise for consideration in this complaint are:
1. Whether there is any deficiency in service on the part of opposite parties in not rectifying the defects of the mobile handset of the complainant or in replacing the same with new one?
2. If so is the complainant entitled for any relief?
3. To what relief the complainant is entitled?
POINTS 1 AND 2:-
6. On perusing the material on hand the contention of the complainant that he purchased Celkon mobile phone from the 2nd opposite party for a sum of Rs.3,350/- on 13.1.2012 under Ex.A.1 cash bill. The said mobile phone was given one year warranty.
The said mobile phone has underwent repair and the complainant handedover the handset for repairs to the 3rd opposite party on 17.4.2012 under Ex.A.2 job sheet. The defect of the mobile was written in job sheet by the 3rd opposite party that “mouse unable to move, no incoming audio, no outgoing audio and the engineer remark was “send to Hyderabad office”. After effecting repairs the 3rd opposite party delivered the mobile set to the complainant. Again the said mobile fell into repairs and it was handed over to the 3rd opposite party on 11.5.2012 for repair under Ex.A.3 job sheet. The problem was noted as “low battery backup, no incoming audio”. The 3rd opposite party repaired the mobile and handedover the same to the complainant. Again the handset underwent repairs and he handedover the mobile set on 14.7.2012 to the 4th opposite party who is the authorized servicing centre of the 1st opposite party under job sheet
Ex.A.4 and the problems were mentioned in it as ear speaker and mic low voice, browser not open and auto power on and off. The mobile was repaired and handed over to the complainant and when the same problem arose the complainant handedover the mobile set to the 4th opposite party under job sheet Ex.A.5. The problem mentioned in the job sheet as “automatic off when on function, GPRS not working, low mic voice, low receiver voice” ear speaker and mic low voice and browser not open and auto power on/off. The opposite parties returned handset to the complainant after repairs.
But they failed to rectify the defect of the mobile. Therefore he got issued legal notice
Ex.A.8 dated 26.12.2012 demanding the opposite parties to replace mobile set with new one and to pay compensation of Rs.20,000/-. The opposite parties received the same under Ex.A.7 and kept quiet. Then the complainant again got issued Ex.A.6 legal notice dated 1.2.2013 to the opposite parties demanding the same and the opposite parties received the same under Ex.A.9 to Ex.A.11 and kept quiet.
7. The 2nd opposite party’s contention is that at the time of purchasing the mobile by the complainant, he was informed of the full particulars of the warranty issued by the manufacturer C999, Celkon. The cost of the mobile phone is Rs.3190.48ps and the vat charges @ 5% is Rs.159.52ps. The job sheet No.342 dated 14.7.2012 may be issued by the authorized center i.e., 4th opposite party but not the 2nd opposite party. The dispute is between complainant and the authorized service center. The 2nd opposite party is only dealer. The alleged defects i.e., automatic switch off, hanging, key pad become non-operative, mouse unable to move etc., may be caused due to negligent acts of the complainant. Either the manufacturer or the 2nd opposite party cannot be held responsible for the defects caused due to physical damages.
8. On hearing both parties we, the Forum came to conclusion that the complainant has right to get repair of the mobile phone within its warranty period. If it does not possible to repair he has right to get replacement of the same with new one or to get refund of the cost of that mobile from the opposite parties. The opposite parties 1 and 2 cannot escape from their liability by simply saying that they are not responsible for the defect of mobile. The 1st opposite party is the manufacturer and the 2nd opposite party is the dealer who sold the mobile and received the amount from the complainant. The complainant personally submitted to this Forum during final hearing that as the mobile phone was not repaired or replaced by the opposite parties, he purchased another cell phone for his personal purpose and prayed to direct the opposite parties to refund the purchase amount i.e., Rs.3,350/-. As the opposite parties have failed to repair the mobile set of the complainant, or replace the same with new one, there is eficiency in service on the part of opposite parties. Under Section 2 (d)(g) of the Consumer Protection Act “deficiency” means any fault, imperfection, short coming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force, or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service and as per Section 14 (b) to replace the goods with new goods of similar description, which shall be free from any defects;
As the mobile set was not rectified from its defect or not replace with new one as per Section 14 (c)the opposite parties has to return to the complainant the price or the charges paid by the complainant. Accordingly these points are answered.
POINT No.3:-
9. In the result, the complaint is allowed partly and the opposite parties 1 and 2 are jointly and severally directed to pay the cost of the mobile phone i.e., Rs.3,350/- (Three thousand three hundred and fifty rupees only) paid by the complainant on receiving the old mobile phone from the complainant which is sold by the 2nd opposite party and to pay Rs.1,000/- as costs to the complainant. Time for compliance one month. If the opposite parties failed to pay awarded amount within the stipulated period, it carries interest at the rate of 9% per annum from the date of order till realization. Claim against opposite parties 3 and 4 are dismissed. Rest of the claims of the complainant are rejected.
Typewritten by Stenographer K.Sivaram Prasad, corrected by me and pronounced by us in the open Forum, this the 16th day of July, 2013.
PRESIDENT MEMBER MEMBER
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For the complainant: For the opposite parties:-
P.W.1 D.Hari Krishna None.
Complainant (by affidavit)
DOCUMENTS MARKED
On behalf of the complainant:
Ex.A.1 13.01.2012 Credit Bill issued by the 2nd opposite party for Rs.3,350/-
Ex.A.2 17.04.2012 Photocopy of job sheet.
Ex.A.3 11.05.2012 Photocopy of job sheet.
Ex.A.4 14.07.2012 Photocopy of job sheet issued by the 4th opposite party.
Ex.A.5 22.08.2012 Photocopy of job sheet.
Ex.A.6 01.02.2013 Office copy of legal notice.
Ex.A.7 10.01.2013 Photocopy of complaint – settled reply issued by Department
of Posts, Buckinghampet HO, Vijayawada.
Ex.A.8 26.12.2012 Office copy of legal notice.
Ex.A.9 . . Postal acknowledgement along with postal receipt.
Ex.A.10 . . Postal acknowledgement along with postal receipt.
Ex.A.11 . . Photocopy of Postal acknowledgement along with postal receipt.
For the opposite parties:
Nil.
PRESIDENT
