BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MYSORE-570023

CONSUMER COMPLAINT NO.206-2014

DATED ON THIS THE 29^th December 2015

      Present:  1) Sri. H.M.Shivakumara Swamy

B.A., LLB., - PRESIDENT   

    2) Smt. M.V.Bharathi                    

                                   B.Sc., LLB., -  MEMBER

                     3) Sri. Devakumar.M.C.                  

                                                          B.E., LLB.,    - MEMBER

Sri Devakumar.M.C.

Member

1.     The complainant has filed the complaint against the opposite parties, for the replacement of the defective mobile phone and sought compensation for the mental agony, hardship caused and damages for deficiency in service.
2.     The Samsung mobile purchased by the complainant has developed some problems within a short span of three months.  The mobile was submitted to opposite party No.2 for rectification and received the same after few days.  The problems persisted on several occasions until 04.02.2014, dissatisfied with the service and functioning of the mobile, demanded for replacement of the mobile with new handset.  This act of opposite parties made the complainant to suffer mental agony, harassment and financial loss.  Due to deficiency in service, filed the complaint seeking reliefs.
3.     All the opposite parties contended that the complaint is not maintainable as the complainant is not a consumer under C.P.Act.
4.     Opposite party No.1, the seller, submits it only sells the products supplied in a sealed box by the manufacturer.  In case of any defects found in the products, it is not responsible.  It served the complainant by sending to opposite party No.2 for rectification of the defects in the mobile.  As such, there is no deficiency in service and unfair trade practice by it and hence, not liable to pay any compensation as sought.
5.     Opposite party No.2, the authorized service centre of opposite party No.3, submits it has rectified the defects found in the mobile and returned the same in good working condition.  The recurrence of the problems faced by the complainant was due to continuous working of application at the background and installation of 3^rd party applications, which has corrupted the mobile software.  On removal of the defects the mobile is still in its custody since 04.02.2014.  Thereby, denies the allegation of defective phone and deficiency in service and unfair trade practice, hence not liable to pay any compensation as sought.
6.     Opposite party No.3, the manufacturer of the mobile phone submits the mobile is manufactured with certain software system.  The installation of 3^rd party application corrupted the system software, resulting in Auto Switch Off, hanging problem, low battery backup etc.,  The mobile software was set right every time and return in good working condition to the complainant.  On repeated installation of the 3^rd party applications, the problem persisted repeatedly.  As such, there is no defect in the mobile phone and hence, not liable to pay any compensation to the complainant.   
7.     To prove the facts alleged in the complaint, the complainant has filed his affidavit and produced several documents.  The opposite parties also filed affidavit and produced documents.  We have heard the arguments of both side parties and perused the entire documents.  The matter posted for orders.
8.     The following points arose for our consideration:-

1. Whether the complaint is maintainable?
2. Whether the complainant proves the deficiency in service on the part of the opposite parties and thereby he is entitled for the reliefs sought?
3. What order?

9.    Our findings on the aforesaid points are as follows:

Point No.1 :- In the affirmative.

Point No.2 :- Partly in the affirmative.

Point No.2 :- As per final order for the following

:: R E A S O N S ::

10. Point No.1:- The complainant purchased a Samsung mobile phone from opposite party No.1, on 30.06.2014 for a sum of `19,004/- and made the payment through credit card belonging to one of his friend.  After the lapse of three months, the mobile started malfunctioning.  Mobile was submitted to opposite party No.2 on the advice of opposite party No.1 for rectification of the defects.  Few days later, the mobile was returned duly removing the defects.  But the problem continued in spite of several attempts by opposite party No.2 on several occasions.  Every time phone was returned to complainant stating the pone is in good working condition.  Dissatisfied with the recurrence of the problems in the phone, the complainant on 04.02.2014 submitted the phone to opposite party No.2 and alleging the phone as defective one, demanded for a new phone of similar model without any defects.  Despite of repeated demands, none of the opposite parties, neither replied to the notice nor complied to the request of the complainant.  Thereby, the complainant suffered the loss, mental agony.  For the deficiency in service and unfair trade practice by opposite parties, the present complaint is filed seeking reliefs.
11. The opposite party No.1 being a private limited company sold the mobile phone to the complainant and on hearing the problems in the mobile, directed the complainant to approach opposite party No.2 for removal of the defects.  Further, it was not aware of the defects found in the phone, hence, not liable to payment of compensation and there is no deficiency in service and unfair trade practice by it.
12. The opposite party No.2 being an authorized service centre of opposite party No.3, on receiving the phone with certain problems, got rectified the same and returned.  Every time, the system software problem was set right by it.  The problem still continued for several times.  Installation of 3^rd party applications has corrupted the mobile software due to which the problem persists many times.  There was no defects in the mobile phone.  Since 04.02.2014, the mobile set was in the custody of opposite party No.2 and which is in good working condition.  As such, there is no deficiency in service and unfair trade practice by it.  Hence, prays for dismissal of the complaint.
13. The opposite party No.3, the manufacturers of the mobile handset contended that the warranty is applicable only to the first purchaser and the same is not transferable.  The low battery backup was due to continuous functioning of the applications on the back ground, and the Auto switch off problem was due to usuage of 3^rd party applications, which causes corruption of mobile software.  The same is required to be rectified only by the authorized service centre.  Therefore, the complainant was to visit the service centre often and not due to any manufacturing defects in the phone.  The complainant failed to collect the mobile phone and simply demanded for replacement of the mobile phone.  The allegations are baseless and only to make unlawful gains.  As such, there is no unfair trade practice and deficiency in service on its part and hence prays for dismissal of the complaint.
14. It is true that the complainant purchased the mobile phone from opposite party No.1 and payment was made by using the credit card belonging to one of his friend.  As such, the invoice was raised in the name of the credit card holder.  As such, under section 2(1)(d) of the C.P.Act 1986, the complainant becomes a consumer and hence the complaint is maintainable.  Accordingly, point No.1 is answered in the affirmative.
15. Point No.2:- It is also true that, after the lapse of three months, the mobile phone started malfunctioning, several time the defects were removed and delivered to the complainant.  Dissatisfied with the continuance of the problems in the phone, handed over the phone to opposite party No.2 on 04.02.2014 and demanded for a new phone of similar model.  On failure to meet the demands by none of the opposite parties filed the complaint.  It is also true that the phone is still in the custody of opposite party No.2, evenafter rectification of the defects i.e. from 04.02.2014.  The opposite party No.2 and opposite party No.3 contention of recurrence of the problem in the phone was due to installation of 3^rd party application.  However, in absence of the material on record, the defence of opposite party No.2 and No.3 is not acceptable.  Further, repeated visits to opposite party No.2 for the problem in the phone, definitely caused mental agony, harassment and financial loss to the complainant.  Thereby, the complainant is to be compensated for the deficiency in service on the part of opposite parties, jointly and severally.  Accordingly, Point No.2 is answered partly in the affirmative.
16. Point No.3:- In view of the above observations, we proceed to pass the following

:: O R D E R ::

1. The complaint is allowed in part.
2. The opposite party Nos.2 and 3 are hereby jointly and severally directed to replace the mobile phone of the same model in good condition or to pay the cost of the mobile i.e. `19,004/-, within 30 days of this order.
3. The opposite parties are jointly and severally hereby directed to pay a sum of `2,000/- towards compensation for mental agony, financial loss and harassment and `1,000/- towards compensation for the deficiency in service to the complainant, within 30 days of this order.
4. In default to comply, the opposite parties jointly and severally liable to pay a penalty of `100/- per day, until compliance is made.
5. In case of default to comply this order, the opposite parties shall undergo imprisonment and also liable for fine under section 27 of the C.P.Act, 1986.
6. Give the copies of this order to the parties, as per Rules.

(Dictated to the Stenographer transcribed, typed by her, transcript corrected by us and then pronounced in open court on this the 29^h day of December 2015)

                          (H.M.SHIVAKUMARA SWAMY) 

                                      PRESIDENT     

(M.V.BHARATHI)                           (DEVAKUMAR.M.C.)

      MEMBER                                         MEMBER