BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

                                          C.C.No.13/2013

Dated this the  19^th day of July 2017

(Date of Institution: 22.03.2013)

Dr. Ganesh, son of Arumugam               

No.11, Sengunthar Street, Orleanpet,

Pondicherry.     

                                                ….     Complainant

Vs.

1. The Proprietor                 

    M/s Sakthi Cell Mount                     

    79, M.G. Road,                   

    Pondicherry.

2. The Manager            

    M/s Rayal Service (Nokia Care)

    178, Bussy Street,                          

     Pondicherry – 605 001.

3. The Care Manager  

    M/s Nokia India Pvt Ltd.,

    SP Infocity           

    243, Udyog Vihar Phase I

    Dundahera, Haryana

    Gurgaon 122 016.

                   .                                     ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Tmt. D. KAVITHA, B.A., LL.B.,

           MEMBER

FOR THE COMPLAINANT                :  Thiru V. Annamalai, Advocate

FOR THE OPPOSITE PARTIES:          :  Party in Person           

O R  D  E  R

(By Thiru.A.ASOKAN, President)

This is a complaint filed by the complainant under Sections 12 of the Consumer Protection Act, 1986 praying to direct the opposite parties to refund the cost of mobile of Rs.4,200/- with interest at 12% per annum from the date of purchase i.e. on 6.4.2012 till complete payment and discharge or to provide a new model unit without payment of charges;  to direct the opposite parties to pay jointly and severally a sum of Rs.1,00,000/- as compensation with cost for deficiency of service, mental agony, loss of income due to deprivation of the complainant's medical service, loss of reputation, physical hardships due to procrastination and unnecessary harassment and to direct the opposite parties to pay Rs.6,000/- as costs of proceedings to the complainant. 

2.  The case of the complainant is as follows:

          That on 06.04.2012 complainant purchased one NOKIA ASHA 200 (BS) bearing MDS B.No: 430, Battery No: 700931, CHR No: 41403, IMEI No: 358259044439321 for a sum of Rs. 4,200/- vide Invoice No: 430.  Immediately while using the unit the complainant came to realize several defects/problems in the above said unit, such as  a) Phone book entries cannot be availed when required as it did not get displayed on the screen;  b) Incoming numbers saved in the SIM Cards cannot be seen as it was not displayed;  c) Photos taken/ shooted cannot be viewed from the internal memory.   On complainant’s explanation about his proper and careful usage, the opposite party No.1 admitted that it contained inherent defects and clarified that it would be due to a software technique / problem and assured the complainant for a solution and accepted the unit for prompt repair and rectification.  Even after service, the complainant encountered the same defects and as he could not use the unit again he had contacted the seller opposite party No.1 and informed about the continuing state of affairs of the defects in phone.  The unit thereafter was handed over to opposite party No.2 the authorised service person.  In first week of June 2012 the complainant was called upon by opposite party No.2 and was informed that the defects was due to some software technology and demanded a payment of Rs. 150/- as service charge.  Despite the payment of the above said amount by the complainant, it was found that they had failed to rectify the problem in the unit and suggested that it is better to opt for replacement of unit.  Thus the complainant’s unit was replaced vide No. IMEI 359346043760168.  Even after replacement of the unit the complainant again encountered the same defect and immediately he had approached opposite party No.2 for proper and final solution.  Once again the opposite party No.2 accepted the unit for repair and after a lapse of two days, the complainant was called upon by opposite party No.2 and informed that the unit will again be replaced vide No. IMEI 359346044847220 for best working condition.  The complainant used  it and he faced the same problem in the above replaced unit also and thus he had handed over the unit to the opposite party No.2 and requested them either for refund of money or for provision of new model unit even on payment of extra charges.  But, to the complainant’s shock despite the product being within warranty period, OP No.2 denied to do so and attributed callous usage of unit on his part and behaved with supine indifference.  The above irresponsible and malafide intention of the opposite party No.2 despite the product being while the warranty period is a clear case of unfair trade practice and deficiency in service by the opposite parties.  Forcing the complainant to run from pillar to post on the guise of service and replacement of unit one after another for several times without proper repair and rectification of defects in the unit has caused the complainant untold misery, mental pain and sufferings and also monetary loss.  That right from the date of purchase and till date of awaiting rectification i.e for more than three months the complainant had been deprived of his valuable communication dependent on the opposite parties product.  The complainant was constrained to avail other means of communication and incurred huge expenses for phone calls and purchase of new phone.  The complainant submitted that till date despite registering “ on line” complaints several times by the complainant vide No’s : 1-13036769868, 1-13036870557, 1-13144800821 with the opposite party No.3 there is no response from either of the three opposite parties and hence the complainant has to undergo untold mental pain and sufferings, loss of comfort.  Hence, the complainant issued a legal notice dated 23.08.2012 and demanded all the three opposite parties to pay a sum of Rs.1,00,000/- as compensation with interest and cost form the date of receipt of the said notice.   However till date neither denied the fact of supply of a defective product not denied deficiency in service in rectifying the defect.         Hence, this complaint.

3.       The opposite parties 1 and 2 remained absent and set exparte.  The third opposite party though filed reply version, did not turn up to proceed the case and hence, they were also set ex parte. 

          4.       The reply version filed by the third opposite party briefly discloses the following:

          This opposite party stated that the complaint is a gross abuse of the process of law, totally uncalled for and not maintainable in law and has filed only with a malise motive to harass this opposite party.  Further the complaint is actuated by intent to obtain unjust monetary gains, to the detriment of this OP and as such, the complaint is liable to be dismissed.  The complainant is not entitled to any claim or to get any relief claimed therein.   There is no documentary evidence to authenticate that the complainant sent a legal notice to this opposite party.  There is no cause of action and consequently there can be no case.  The complainant's case is sheer reflection of misuse of the mobile phone, hence, this opposite party cannot be held responsible for irresponsible and careless and negligent handling of the mobile phone by the complainant.  The warranty period covers the range of faults that ensue normally from mechanical functioning of the mobile set without any interference or outside influences.  The complainant is seeking the personal remedy under the garb of generic terms by alleging deficiency in service without any basis or documentary evidence.  The complainant has fabricated the facts of the case and has presented this complaint without any iota of credence in the eyes of law.  This opposite party further stated that it is not clear as to how the complainant can claim that there was deficiency in service when his handset was repaired and replaced repeatedly to his satisfaction and it cast a doubt upon the complainant.  The complainant has filed this complaint only to illegally enrich himself as the expense of a company in the guise of a consumer.  This opposite party further stated that the handset will be repaired free of charges by this opposite party if the handset is genuine and it suffers from a defect or a problem during the limited warranty period and the consumer does not violate the terms and conditions.  Further this opposite party stated that when a handset is suffering from a defect covered under the limited warranty which occurs during the validity of warranty period and such a defect is beyond repair, then in such a rate event, the defective part is replaced and or handset is replaced by another handset of the same model to avoid any kind of inconvenience or loss to the customer.  The complainant has not disclosed as to how the handset became defective and what were the defects in the handset.  This opposite party takes all reasonable care as they carry out proper quality control and testing before delivery into market.  Further no examination / expert report was filed  to establish that the defect was major defect as adduced by the complainant.  This opposite party is always willing to perform its obligation under terms of warranty and redress the grievances of the complainant and is still willing to service / repair the handset to the satisfaction of the complainant as per the terms of warranty.  The complainant received the handset in perfect working condition on 6.4.2012 and the allegation of manufacturing defects are not true because the handset was working for two months after purchase and the damage sustained may also have been caused by negligent handling of the handset by the complainant.  The complainant has not submitted any job sheet to show that he visited the Service Centre.   Further the handset was twice replaced by this opposite party to the satisfaction of the complainant and there is no deficiency of service.  This opposite party stated that the claim for compensation is not supported with any evidence.  The compensation can only be awarded as per clause 14 (1) (d) of the Act for any loss or injury suffered by the Consumer due to the negligence of the opposite party and the onus is on the complainant to prove negligence.  The complainant cannot allege manufacturing defect without the expert opinion that specifically indicates that there is a manufacturing defect.  Hence, prayed for dismissal of the complaint with exemplary costs. 

5.       On the side of the complainant, the complainant himself was examined as CW1 and marked Exs.C1 to C15.  Though reply version was filed by the third opposite party, none was examined on their side and no documents were marked.

6.       Points for determination are:

1. Whether the complainant is the consumer?
2. Whether the opposite party attributed any negligent act leading to deficiency in service?

3. To what relief the complainant is entitled for?

7.  Point No.1:

          The complainant purchased one NOKIA ASHA 200 (BS) bearing MDS B.No: 430, Battery No: 700931, CHR No: 41403, IMEI No: 358259044439321 for a sum of Rs. 4,200/- as per Invoice No: 430 on 06.04.2012 from the first opposite party vide Ex.C1.    Hence, the complainant is the consumer.

8.       Point No.2:

          The complainant was examined as CW1 and marked Exs.C1 to C15.  The Opposite Parties were duly served.  The OP1 and OP2 remained absent and set ex parte.  The third opposite party filed reply version and also cross examined the complainant.  Subsequently, the learned Counsel appearing for OP3 endorsed no instruction.  Since the case is time bound matter as remitted back by the Hon'ble, State Commission, Puducherry and the Opposite parties did not take any steps or showing any interest to appear before this Forum, the OP3 also set ex parte.    The complainant submitted that he has purchased one Nokia Asha brand cell phone from the first opposite party on 6.4.2012 for Rs.4,200/- vide Ex.C1.  While using the same, he found some defects in the cell phone such as problem in display.  Immediately he informed the same to the first opposite party who is the seller of the cell phone and serviced the same and then returned back to the complainant.  Even after the service, made the complainant to face the same problem and hence, the cell phone was handed over to the second opposite party who is the authorised service centre of OP3, who in turn informed that the defect was due to the software problem and it can be rectified on payment of Rs.150/- vide Ex.C2.   Even then, same problem persisted in the cell phone and the complainant returned the cell phone to the second opposite party who replaced with another cell phone vide Ex.C3.  The complainant alleged that the replaced cell phone also having the same problem and approached the second opposite party who again replaced with another cell phone vide Ex.C4 on 23.06.2012.  The complainant further alleged that the said cell phone also had same problem.  Hence, the attempt made by the complainant ended in vein.  Therefore, the complainant opted for refund of money or for new model cell phone on payment of extra charges and handed over the cell phone to the  OP2 on 03.07.2012 vide Ex.C5.  But the OP2 refused for the same.  Hence, the complainant  sent a mail on 05.08.2012 to OP3 vide Ex.C6.  The OP3 also sent reply vide Ex.C6 on 06.08.2012.    Since the defects in the cell phone could not be rectified by the OP2 from 1^st June 2012 and the cell phone is also with them. The complainant sent another mail to OP3 requesting refund of money vide Ex.C8.  Exs.C9 and C10 the reply mails show that the OP3 received the mail from the complainant.   The complainant issued a legal notice dated 23.08.2012 vide Ex.C11 to the opposite parties.  Ex.C12 is the postal receipt for the legal notice to OP3.  The first and second opposite parties received the same vide Ex.C13 and Ex.C14 the acknowledgement cards.  The second opposite party after receipt of notice sent a reply dated 29.09.2012 vide Ex.C15 alleging that they are willing to replace with same model cell phone or refund of money.  The complainant alleged  that the above acts of the opposite parties leads to deficiency in service and unfair trade practice and hence, filed this complaint. 

          9. Initially the third opposite party contended the case and filed reply version alleging that due to negligent handling of cell phone by the complainant, the alleged defects were occurred and also alleged that service on free of charges will be available when the cell phone has any mechanical defects that too within warranty period.  The third opposite party further alleged that the complainant has fabricated the facts  and the cell phone was periodically repaired and replaced and that there was no deficiency on their side.  Further the complainant, in order to get illegal gain, has filed this complaint and also alleged that without getting any expert opinion alleged that the cell phone has got manufacturing defect.  Hence, the complaint is liable to be dismissed.  Further the third opposite party alleged in their reply version that they do not aware of any notice sent by the complainant.  Therefore, the OP3 prayed for dismissal of the complaint. 

10.     From the above facts and evidence adduced by the complainant, it is clear from Ex.C1 that the complainant purchased the alleged mobile phone from the first Opposite Party on 06.04.2012 for Rs.4,200/-.   On perusal of Exs.C2 to C5, the cell phone got some defects and the same could not be rectified by the second opposite party who is the authorised service centre of the third opposite party and that they have replaced twice the same model cell phone during the warranty period.  Further, the replacement of cell phone would clearly establish that the complaint alleged model cell phone has some manufacturing defects.  Further, the cell phone is also in the custody of OP2.  Exs.C6 to C10 clearly establish that the complainant sent mails to the third opposite parties, even then the defects in the cell phone has not been rectified.  Further, the above correspondences confirms that the notices were served to the third opposite party.  Hence, the plea taken in the reply version that they do not aware of the notices sent by the complainant is not acceptable.    Since the purpose for which the mobile phone was purchased was not served, the complainant was forced to purchase a new cell phone which would definitely cause monetary loss, mental agony and sufferings.    On perusal of Ex.C15, though the second opposite party was ready and willing to replace the same model of cell phone or refund of money, they have not come forward before this Forum to let in evidence.  Even, though the third opposite party filed reply version, they have also not chosen to appear before this Forum to establish that the complainant has mishandled the cell phone and that there was no manufacturing defect on the cell phone.  The above attitude of the Opposite Parties clearly establish the complainant's case and hence, this forum has come to the conclusion that the Complainant has proved the negligent act leading to deficiency of service of the Opposite Parties.  Thus, the complainant is entitled for the claim and the Opposite Parties are jointly and severally liable for their deficiency in service and unfair trade practice.

11.     Point No.3:

          In view of the decision taken in point No.2, this complaint is hereby allowed and the Opposite Parties are jointly and severally directed to 

1. Refund Rs.4,200/- towards the purchase cost of the Mobile Phone to the complainant. 
2. Pay a sum of Rs. 10,000/-  as compensation to the complainant for the deficiency in service.
3. To pay a sum of Rs.5000/- as cost of the proceedings.

Dated this the 19^th day of July 2017.

1. ASOKAN)

PRESIDENT

(D. KAVITHA)

MEMBER

COMPLAINANTS' WITNESS:  

CW.1          08.08.2014           Dr. Ganesh             

OPPOSITE PARTY'S WITNESS:  Nil

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS: Nil

LIST OF MATERIAL OBJECTS: NIL

1. ASOKAN)

PRESIDENT

(D. KAVITHA)

MEMBER