Smt. Molykutty Mathew:
This is a complaint filed under section 12 of Consumer Protection Act 1986 for an order directing the opposite party to replace the mobile phone along with the compensation and cost for the deficiency of service on his part.
The case of the complainant in brief.
The complainant is working as business associate and he purchased the mobile phone on the basis of advertisement and offers made by the opposite party. The complainant had purchased a mobile phone model number Nokia 5.1 Plus (Black 32GB)( 3GB RAM) worth Rs. 8999/-on 6/12/2018 from opposite party vide order no DD 1140 9434 481716 8000 through its online marketing service .The complainant had received the mobile phone on 8/12/2018.Then the next day itself the phone not working properly and the complainant intimated the same to the opposite party through Email on 9/12/2018.There after each and every day function of the mobile phone become more complicated and the complainant has not in a position to use the mobile phone. Several times they complaint has intimated the problem through email and phone but the opposite party not respond properly. The complainant had purchased the mobile phone only believing the offer and advertisement made by the opposite party in their website. The opposite Party offered that their product comes with the warranty of one year for mobile phone and 6 months for accessories. Moreover they represented the features of the phone as fixed
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focus, f /22,80.4foV, Beauty shor, selfie bokeh , live bokeh, Panorama, HDR, Hybrid zoom (digital)l Colour and Mono, Slow Motion Video ,1.0 Micrometer. But after receiving the phone complainant observed that mobile phone camera is lagging and zoom delaying. The RAM of the mobile uses more than 1.4 GB for base minimum. The phone is not having 3GB RAM as offered by the opposite party. As per the advertisement of opposite party the phone is having dual sim slot, but there is no facility to insert memory card apart from that two slot. Moreover the said mobile phone is working in a self Manner, making calls without any touch or instruction by the operating person. The opposite party failed to comply the terms which was offered by them and it caused hardship and damage to the complainant. The complainant issued several Email and communication to the opposite party. But the opposite party not to replace another mobile phone within the warranty period. So there is deficiency of service and unfair trade practices on the part of opposite party.
After filing the complaint notice was issued to opposite party. Opposite party not received the notice and left. The commission had to hold that opposite party have no version as such in this case came to be proceed against the opposite party as ex-parte.
Even though the opposite party as remained ex-parte, It is for complainant to establish the allegation made by him against the opposite party. Hence the complainant was called upon to produce evidence in the form of affidavit and
documents. Accordingly complainant has chosen to produce his affidavit along with three documents marking them Exhibits A1 to A3 and complainant was examined as pw1. So the opposite party is remain absent in this case. At the end the commission heard the case on merit.
Let us have a clear glance at the relevant documents of the complainant. Ext.A1 is Tax invoice (bill) paid by the complainant for the mobile phone for an amount of Rs 8999/- to the opposite party. Exhibit A2 is advertisement in website of opposite party (3 in number, internet special test) and exhibit A3 is the Email sent by the complainant to the opposite party. According to the complainant the mobile phone was purchased on 6/12/2018 as per Ext. A1.So the opposite party bound to replace or refund the price of mobile phone. since opposite party denied to replace the mobile set. There is deficiency of service and unfair trade practice on the part of the opposite party. Under this circumstance we are of the considered view that opposite party is directly bound to redressal the grievance caused to the complainant. So complainant is entitled to replace the mobile phone from the opposite party. Therefore we hold that opposite party is liable to replace the Mobile phone model number Nokia 5.1 Plus (Black 32GB) (3GB RAM) to the complainant along with Rs. 5000 as compensation and Rs. 2000 as litigation cost.
In the result complaint is allowed in Part directing in the opposite party to replace the Mobile phone model number Nokia 5.1 Plus ( Black 32GB) (3GB RAM) to the complainant along with Rs. 5000/- as compensation and Rs. 2000/- as litigation cost Within 30 days of receipt of this order, failing which the complainant shall be at a liberty to execute the order as per provisions of Consumer Protection Act 2019. After the said proceedings the opposite party is at a liberty to take back the mobile phone from the complainant.
Dated this the 31st day of December , 2020.
Sd/- Sd/- Sd/-
President Member Member
Ravi Susha Molykutty Mathew. Sajeesh K.P
Exhibit for complainant
Ext.A1: Tax invoice bill.
Ext.A2: Advertisement in the website of OP.
Ext.A3: Email.
Forwarded by Order
Senior Superintendent
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