BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

            Dated this the 15^th day of November 2017

                                                                                                Filed on : 25.01.2017

PRESENT:

Shri. Cherian K. Kuriakose,                                              President.

Shri. Sheen Jose,                                                            Member.

Smt. Beena Kumari V.K.                                                  Member.

                        C.C.No. 41/2017

                                 Between 

  O R D E R

Sheen Jose, Member

1.  The case of the complainant is as follows:

The complainant had purchased a Microsoft Lumia 640 XL LTE Dual SIM model mobile handset from the 2^st opposite party on 02.01.2016 for Rs.17,000/- which was manufactured by the 1^st opposite party.  The manufacturers provided 12 months warranty to the gadget from the date of its purchase. The complainant stated in his complaint that the mobile was showing some defects from August 2016 onwards.  The problem that after making or receiving calls it cannot be ended. The above defect was due to the manufacturing defect of the handset and therefore, the complainant gave the handset to the 3^rd opposite party who is the authorized service provider of the 1^st opposite party on 31.08.2016 for curing the defect. Then, the complainant had approached the 3^rd opposite party several times to get back his mobile handset after rectifying the defects, but all the times, the 3^rd opposite party said lame excuses. At last, the 3^rd opposite party was unable to return the unrepaired handset even without curing it. The present condition of the complainant is that he has neither his handset nor his money. Thereafter, the complainant had sent a registered legal notices to the opposite parties, but none of the opposite parties had either sent any reply or paid any money to the complainant. Thus, the complainant is before us seeking direction against the opposite parties to return the repaired handset without any complaint or to pay Rs.17,000/- along with interest and also seeking costs of the proceedings. Hence this complaint.  

2)       Despite the service of notices from this Forum, the opposite parties opted not to contest the matter for their own reasons.  Proof affidavit has been filed by the complainant and Exbt. A1 to A6 were marked on his side. Heard the Counsel for the complainant.

3)       Issues came up for considerations are as follows:

1. Whether the complainant has proved any deficiency in service or unfair trade practice on the side of the opposite parties?
2. Whether the complainant is entitled to get either to return the mobile handset without any defects or to refund its price?
3. Whether the opposite parties are liable to pay the costs of the legal notice and costs of the proceedings to the complainant?

4)       Issue Nos. (i) and (ii)

According to the complainant, he had purchased a mobile handset from the 2^nd opposite party which was manufactured and marketed by the 1^st opposite party on 02.01.2016 at a price of Rs. 17,000/-.  Exbt. A1 is the purchase invoice which shows that the complainant had purchased a Lumia 640XL LTE DS model mobile handset from the 2^nd opposite party dated on 02.01.2016 at a price of Rs.17,000/-.   The complainant stated in his complaint and proof affidavit that the disputed mobile handset became defunct within a short period from the date of its purchase. Therefore, the complainant had approached the 3^rd opposite party who are authorized service provider of the 1^st opposite party manufacturer on 31.08.2016. As per the directions from the 3^rd opposite party, the complainant had entrusted his mobile handset with them for curing the defects. Thereafter, the complainant had repeatedly approached the 3^rd opposite party to get back the phone which he had entrusted to them for curing the defects.  The 3^rd opposite party failed to rectify the defects of the disputed mobile hand set and said lame excuses and fake stories to the complainant.  Exbt. A2 is the service job sheet issued by the 3^rd opposite party which shows that the complainant had entrusted his disputed mobile handset to the 3^rd opposite party on 31.08.2016 for repairing.  As per the Exbt. A2 job sheet the disputed handset was under warranty period and complaints noted therein was ‘network problem to make or receive calls’.  Exbt. A3 is the lawyer notice dated on 26.12.2016 issued by Adv.Sabu Francis to the opposite parties under the instructions from the complainant. As per Exbt. A3 lawyer notice, the complainant stated that the opposite parties failed either to rectify the defects of the mobile handset or to replace the same with new one. The complainant demanded the opposite parties either to return the disputed handset after repairing and making it in a working condition or to refund its price. Exbt. A4 is the postal receipt of the Exbt. A3 lawyer notice.  Exbt. A5 and A6 are the postal acknowledgment cards which go to show that the 2^nd and 3^rd opposite parties received the Exbt.A3 legal notice from the complainant. According to the complainant, after receipt of the legal notice, the opposite parties did not do anything for rectifying the defect of the handset or to refund its price even when, the disputed mobile handset was under the warranty period.   The 3^rd opposite party did not do anything for repairing the same or did not return the handset to the complainant till date and the above said act of the opposite party is a classic example of gross deficiency in service.  We are of the opinion that the sworn statement of the complainant is believable and the opposite parties did not respond to the genuine grievances of the complainant. The complainant had suffered a lot of inconvenience due to the non-availability of the mobile handset. The opposite parties holding the disputed mobile even after the receipt of the notice from this Forum and not taking any steps to contest the matter and appear before the Forum. The absence of the contrary evidence, we believe the case of the complainant and we hold that he is entitled to get refund the price of the disputed mobile handset along with interest @ 6% p.a.  

5)       Issue No. (iii)

The complainant had sent Exbt. A3 legal notice to the opposite party. But the opposite party did not respond to the same. He approached the 3^rd opposite party on different occasions for either to rectify the mobile phone or to refund its price. The complaint and available documents would go to show that the complainant had run from pillar to post for the redressal of his grievances. The above said facts and circumstances call for compensation and costs of the proceedings. Therefore, we award an amount of Rs.3,000/- towards compensation along with Rs.2,000/- towards costs of the proceedings.

6)       In the result, we partly allow the complaint and direct as follows:

1. The 1^st, 2^nd and 3^rd opposite parties are directed to refund to the complainant an amount of Rs.17,000/- which is being the price of the disputed mobile handset (as per Exbt. A1- purchase invoice) along with interest @ 6% from the date of filing of this complaint ie. on 25.01.2017 till the date of realization.
2. The 1^st, 2^nd and 3^rd opposite parties are also directed to pay an amount of Rs. 3,000/- towards compensation along with Rs.2,000/- towards costs of the proceedings to the complainant.
3. The liabilities of 1^st, 2^nd and 3^rd opposite parties are joint and several. 

The above order shall be complied with, within 30 days from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 15^th day of November 2017.

                                                Sd/-Sheen Jose,   Member

                                                          Sd/- Cherian K. Kuriakose, President

Sd/-Beena Kumari, V.K., Member

                                                                             Forwarded By Order

                                                                             Senior Superintendent

Date of Despatch:

By Post                 ::

By Hand                ::

APPENDIX

Complainants Exhibits

Opposite party's Exhibits:          Nil

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