IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated this the  27^th day of February, 2021

Present:  Sri. Manulal V.S. President

Sri. K.M. Anto, Member

C C No. 275/2017 (filed on 18-12-2017)

Petitioner                                            :         Jessy Santhosh,`

                                                                   W/o. Santhosh

                                                                   Thakidippurath House,

Aimanam village,

Kottayam Taluk.

                                                                   (Adv. E.S. Rajesh)

                                                                             Vs.

Opposite Parties                                 :   1) Proprietor,

                                                                   Oxygen the Digital shop,

                                                                   Nagampadom, Kottayam.

                                                              2) The Manager,

                                                                   Huawei Telecommunications

                                                                   India Private Limited,

                                                                   Cheranalloor Road,

                                                                   Byepass Junction,  Idappappli,

                                                                   Cochin.

                                                          O  R  D  E  R

Sri. K.M. Anto, Member

          The complaint filed under Section 12 of the Consumer Protection Act 1986.

          The complainant purchased one mobile phone from the 1^st opposite party manufactured by the 2^nd opposite party on 21/11/2016 on payment of Rs.29,950/-.  The mobile phone was purchased for the use of her son for downloading and recording videos for facilitating his profession.  After one month from the date of purchase, the mobile phone started getting overheated and became useless.  The said phone was shown to the 1^st opposite party and the complainant demanded for a replacement or service of the phone.  The 1^st opposite party referred the complainant to the service centre of the 2^nd opposite party ie. Mahalakshmi Nagambadam and accordingly the complainant entrusted the phone with the said service centre on 20-09-2017.  They informed the complainant that they would sent the phone to Chennai for service and                  on 10-10-2017 the mobile phone was returned as complaint rectified.  But after that also the mobile phone was getting overheated and could not be used.                       The complainant approached the 1^st opposite party and the service centre of the 2^nd opposite party several times but they did not redress the grievances of the complainant eventhough it was in the warranty period.  The opposite parties are liable to rectify the compliant put forward by the complainant and the non compliance of the warranty conditions is gross negligence and unfair trade practice from the part of the opposite parties and hence this complaint is filed for replacement and compensation.

          The opposite party was noticed but even after the receipt of notice they did not appear before this Commission and was set exparte.

          The complainant has filed proof affidavit along with 2 documents which were marked as Ext.A1 and A2 towards the evidence of the case.  The Expert Commissioner was appointed to examine the mobile phone on application of the complainant and the Commission report was marked as Ext.X1.  On perusal of the above pleading and evidence we would like to frame the following points,.

1. Whether the complainant has succeeded in establishing the deficiency of service and unfair trade practice on the part of the opposite parties?
2. Reliefs and costs?

For the sake of convenience we would like to consider point no.1 and 2 together.

Point No.1 and 2

          The complainant’s case is the mobile phone purchased by her from the opposite parties turned defective after one month itself preventing the further use.  The complainant has produced the Ext.A1 purchase bill in support of her claim though notice was received by the opposite parties they did not come up before the Commission and adduced evidence. 

          On examination of the documents and the complaint, we find that though the complainant alleges to have given the mobile phone for service to the service centre of the 2^nd opposite party she has not produced any document to show that she had entrusted the phone with any service centre.  The Commissione has appointed Mr. Suhail N.N., Phoneway Mobiles, University Road, Athirampuzha as an Expert Commissioner to examine the mobile phone and the complainant produced the mobile phone before the Commissioner; the Commissioner filed a report in which it is stated that “HmhÀ loäv BIp-¶Xv aqew phone sâ panel \v complaint D­v.  AXp-aqew battery charge                        \nev¡p-¶n-Ã.  Phone D]-tbm-Kn-¨psIm­ncv¡p-t¼mÄ NqSp IqSn off BIp-¶-Xmbn ImW-s¸-«p.  Camera t]mepÅ app IÄ FSp-¡p-t¼mÄ Hmh-dmbn loäv BIp-¶p.  AXp-aqew DSs\ off BIp-¶-Xmbn ImW-s¸-«p.  NqSp-IqSn ]pdw-`mKw s]mfn-ªn-«p-­v. Xmsg-t]mb tISp-]m-Sp-IÄ H¶pw-Xs¶ ImWm³ km[n-¨n-Ã.”

          From this report itself it is very clear that the mobile phone purchased by the complainant was defective.  The Commissioner has clearly stated that there was no indication of visible physical damages, so in the absence any contrary evidence we find that the mobile phone was having manufacturing defect.                  The opposite parties have not yet turned up to look into the issue or give any explanation against this complaint.  Though there are several reasons for the mobile phone to get overheated such as extensive usage etc. here as per the commission report we can find that the said mobile phone was getting overheated as and when it is started to use.  So as there is no evidence before us to show that the overheating of the mobile phone is because of some other reasons we come to the conclusion that the mobile phone is having manufacturing defect. The complainant who has purchased such an expensive phone only for her son’s studies was not served with the purpose. As the opposite parties are not ready to rebut the allegation or produce any cogent contrary evidence, the non attendance of the opposite parties to the complaint can be considered as deficiency of service and the sale of such a mobile phone with manufacturing defect is unfair trade practice from the part of the opposite parties.  Hence we are of the considered opinion that the complainant is entitled for compensation.  Thus point no.1 and 2 are found against the opposite parties and the complaint is allowed. 

1. Opposite parties are directed to replace the Honor 8 mobile phone with the same specifications or in default, return the price of the mobile phone ie. Rs.29,950/- with interest of 6% from 21-11-2016, ie. date of purchase till the date of realisation.
2. The opposite parties are directed to pay Rs.5,000/- towards compensation to the complainant.

The opposite parties are jointly and severally liable to pay the amount.

The Order shall be complied with within a period of 30 days from the date of receipt of Order.

Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Commission on this the 27^th  day of   February, 2021.

Sri. K.M. Anto, Member Sd/-

Sri. Manulal V.S. President Sd/-

Appendix

Exhibits marked on the side of the complainant

A1  :  Retail invoice dtd.21-11-2016 issued by 1^st opposite party

A2  :  Copy of specification statement

Commission report

X1  :  Commission report dtd.29-12-2020 by Suhail N.N.

                                                                                                By Order

                                                                                     Senior Superintendent