By: Smt. Mini Mathew, Member
The case of the complainant in brief is he had purchased one Sony Xperia M SS model C 1904 (Black) mobilephone from first opposite party's shop at Perinthalmanna, Malappuram Dist. on 6-4-14 after paying an amount of Rs.11133.00/-. At the time of purchase the staff of the 1st opposite party promised good quality and good services to the complainant. But unfortunately within few days from the date purchase, complainant noticed some defects to the mobile phone and informed about this to the 1st opposite party. On 23-5-14 complainant entrusted the mobile phone for repair to the shop of the 2nd opposite party and they informed the complainant that they are ready to repair the same. But even after repeated demands the opposite parties were not ready to either to repair the phone or to replace the same with a new one. Several times complainant contacted the opposite parties, but they were reluctant to cure the mechanical defects of the mobile phone. Complainant purchased the mobile phone on 6-4-14 after paying an amount of Rs.11133/-, and he approached this Forum with his grievances on 9-7-14 ie within 3 months from the date of purchase. After repeated demands the opposite parties are reluctant to replace the phone with a new one or to cure the defects. So the act of the opposite parties amount to deficiency in service and unfair trade practice. Hence this complaint.
After receiving notice from this Forum opposite party No.2 entered appearance and filed version. Opposite party No.1 did not turn up, hence name of opposite party No.1 was called and was set exparte. Through the version the contention raised by the 2nd opposite party is that he is not liable to pay any amount to the complainant since there was no negligence or deficiency in service on his part. There is no manufacturing defect to the phone as alleged in the complaint. According to opposite party No.2 the phone was damaged due to external cause of liquid ingression. Due to the mishandling and careless use of the phone by the complainant some liquid entered in to it and caused some damages. As per the warranty terms and conditions, rectification of damage to the set due to external cause is not covered under warranty terms and conditions and is on chargeable basis, but he was not willing for that. In short if at all there were any defects that might have occurred due to the careless usage of the phone by the complainant they are not liable to pay any compensation to the complainant.
Evidence of the complainant consists of Chief Affidavit filed by him and the documents marked as Ext. A1 and A2. Even though several chances were given to the 2nd opposite party he has not cared to file Counter Affidavit. Hence evidence of the opposite parties is closed and the matter was posted for hearing. On that day also opposite party No.2 was absent and no evidence was adduced on his side.
Points are to be answered are:-
(i) Whether the opposite parties are deficient in their service?
(ii) If so, remedy and cost.
Points (i) and (ii) are answered together
The admitted case of both parties are that the complainant purchased a Sony Xperia M SS Model C 1904 mobile phone from 1st opposite part's shop at Perinthalmanna. It is also admitted that since the said phone was not functioning properly, the complainant entrusted the phone to the shop of the 2nd opposite party for repair. But the 2nd opposite party returned the phone to the complainant alleging that there is not manufacturing defect to the phone as alleged. Even after repeated demands the opposite parties were reluctant either to repair the phone or to replace the phone with a new one.
The definite case of the 2nd opposite party is that some liquid entered in to the phone and the phone got damaged because of that. When the opposite party has such a case he ought to have taken steps to get the phone examined by an expert. He has not cared to do so. According to opposite party No.2 as per the warranty terms and conditions, if some liquid entered in to the phone and which causes some defects to the mobile phone and in such a circumstances, they are not liable to compensate the complainant. But here the opposite parties did not produce the warranty card before this Forum to prove this aspect. So the only option available to this Forum is to accept the evidence produced before this Forum by the complainant. It is an undisputed and unchallenged fact that the complainant purchased a Sony Xperia M SS Model C 1904 (Black) from the 1st opposite party on payment of Rs.11133/- on 6-4-14. From the very beginning itself complainant noticed some defects to the phone and informed the opposite parties regarding the malfunctioning of the phone. On 23-5-14 complainant entrusted the mobile phone for repair of the shop of the 2nd opposite party and they informed him that there is no manufacturing defect to the phone as alleged by the complainant. Damage occurred due to the entry of some liquid in to the phone. But unfortunately the 2nd opposite party returned the said phone to the complainant without getting the same repaired. This type of attitude definitely came under the preview of deficiency in service and unfair trade practice.
It is the 1st opposite party who sold the phone to the complainant after receiving an amount of Rs.11133/-. It is his bounden duty to act as per the warranty conditions. He even after receiving complaint did not care to replace the phone or rectify its defects. The second opposite party is the agent of the manufacturer. There is no case that he had received any consideration from the complainant. Therefore we find that the 1st opposite party is liable to compensate the complainant. Even though the attitude of the 2nd opposite party is depreciated, we do not order any compensation or damage to be paid to the complainant by the 2nd opposite party as he has not received any consideration from the complainant.
In the result, the 1st opposite party is hereby ordered to pay Rs.11133/- being the cost of the mobile phone, Rs.5000/- being compensation for the mental agony and hardships suffered by the complainant and Rs.3000/- being the cost of these proceedings. After receiving the above said amount. the mobile phone may be returned to the 1st opposite party. The order shall be complied within one month from the date of receipt of copy of this order.
Dated this 1st day of January, 2016
R.K.MADANAVALLY , MEMBER (In-Charge of President)
MINI MATHEW, MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1to A2
Ext.A1 : Tax Invoice bill
Ext.A2 : Service job sheet.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Nil
R.K.MADANAVALLY , MEMBER (In-Charge of President)
MINI MATHEW, MEMBER
