FA.No.689/2010 against C C.No.2/2010 District Forum, Nalgonda.

Between

Anireddy Venkat Reddy S/o. Satyanarayana

Reddy, age 31 years, Occ:Business,

R/o.H.No.6-2-762/1, SLN Swamy Colony

Hyderabad Road, Nalgonda.                                          ..Appellant/

                                                                                  Opp.party

                And

1. Kolanu Sreenivasulu, District Secretary of

    Nalgonda and District Registered Consumer

    Societies Co-ordination Committee,

    Chairman of Consumer intelligence Network

    Of India and Member of Nalgonda District

    Consumer Protection Council 6-129,

     Puttapaka-508 253, Nalgonda District.              ..Respondent/

  Complainant

2. Nokia Care Centre, Sunitha Communications

    6-2-20/5, Srinagar colony, Beside Vodafone

    Store, Hyderabad Road, Nalgonda-508 001.

    Tel 918682222273

    (Respondent No.2 impleaded as per orders in

      FAIA No.,2012/2010 dated 24-4-2012                          Respondent

Counsel for the Appellant               :  Mr.V.Narasimha Rao

Counsel for the Respondents         : M/s.V.Gourisankara Rao-R1

                                                     Service of notice on R2 held sufficient

QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT,

AND

SMT.M.SHREESHA, HON’BLE MEMBER,

WEDNESDAY, THE TWENTY FIFTH DAY OF JULY,

TWO THOUSAND TWELVE

Order (Per Smt.M.Shreesha, Hon’ble Member)

***

Aggrieved by the order in C.C.No.02/2010 on the file of District Forum, Nalgonda, opposite party preferred this appeal.

        The brief facts as set out in the complaint are that the consumer namely, Rabolu Satyanarayana, purchased a Nokia mobile phone model N-73 for Rs.12,500/- from opposite party No.1 on 22-8-2008.  The consumer submits that the mobile was defective from the very next day and the telephone number of the customer care office also belongs to same opposite party No.1 and this is found printed on his visiting card i.e. 9948159009, so the consumer submits that the dealer and customer care  office is one and the same.  The defacto complainant is representing the consumer and when a complaint was made, the opposite party delivered another mobile on 23-4-2009 and the replaced mobile was also defective and was immediately handed over to the opposite party.  The complainant submits that when the second mobile was taken for repairs, it was serviced by one Nagi Reddy who owns M/s. Shubham Mobiles which is beside the opposite party shop and the same person is related to the opposite party and he inserted a memory card which was broken.   On 10-7-2009 when the consumer visited the said Nagi Reddy, he was told that the mobile was being used by him and was willing to settle the issue by refunding Rs.2,000/- and their giving another mobile piece with a warranty valid upto 25-3-2010.  But the consumer preferred proper delivery of a new sealed mobile piece and sent him a notice dated 10-7-2009 but did not receive any replacement.  Hence the complaint seeking direction to the opposite party to refund Rs.12,500/- with interest, compensation and costs.

        Opposite party filed counter stating that the consumer, Mr.Satyanarayana, purchased a mobile phone at Sri Venkateswara Agencies and thereafter approached opposite party no.1 requesting him to give an invoice for Nokia, N-73 and that he had obliged him.  It is the company which gives the warranty and the dealer is not liable and he submits that the said company was not made a party.  He further submits that the said cell phone was damaged due to unauthorised loading of software and even then they replaced the old phone with a new one but once again the cell phone was damaged physically for which there is no warranty.  The replaced phone was not deposited before the District Forum and submits that since the phone was replaced once and the second phone was damaged by the consumer himself, he is not entitled for refund and that primarily the purchaser is not a consumer.

        The District Forum based on the evidence adduced and Exs.A1 to A15 and B1 & B2 allowed the complaint directing the opposite party to pay Rs.13,500/- to the consumer by name Rapolu Satyanarayana but not the complainant, with interest at 9% p.a. from the date of complaint till realization with costs of Rs.1500/-.

        Aggrieved by the said order, opposite party No.1 preferred this appeal.

        The facts not in dispute are that the purchaser of the Mobile phone is a consumer as he has established vide Exs.A1 and A2 that he has purchased the mobile phone from the opposite party no.1 dealer and he has also impleaded opposite party no.2 vide I.A.No.2012/2010 dated 24/4/2012.        The consumer is entitled to be represented by a consumer organisation and falls within the definition of the Act.  Ex.A1 read along with the endorsement on the reverse and along with A2 and A5 clearly establishes that the consumer purchased the phone for an amount of Rs.12,500/- for N-73 model on 22-8-2008 and on 23-4-2009 it was replaced by a new model which was endorsed on the reverse of A1.  It is the complainant’s case that right from the second day itself, the mobile purchased on 22-8-2008 was not working and therefore on his complaint, opposite party No1 replaced on 23-4-2009 with IME 355718026387363.  The replaced mobile too was found defective and was handed over to M/s.Sony Mobiles Sales and Service and the complainant also got issued a legal notice to opposite party No.1 on 10-7-2009 to refund the amount paid for the mobile phone.  The complainant submits that the mobile phone is still with the opposite party. 

        The learned counsel for the appellant contended that Ex.B1 Job card dated 12-7-2009 showed that there was outside tampering and physical damage and was not covered under warranty.  Ex.B2 is the extended warranty which ends on 11-9-2009 and shows that it was repaired on 25-2-2009 and 28-2-2009 for the piece brought on 22-8-2008.  There are no substantial grounds to believe the version of the opposite party who stated that in the first piece purchased, the software was tampered and therefore the piece became defective and the piece was also replaced only after six months.  The contention of the appellant that the cell phone was not deposited before the District Forum is unsustainable as no steps were taken ever by the dealer himself and it is also the complainant’s version that the mobile piece is in possession of the opposite parties  and not with him.  The appellant further contended that under Ex.B2 all the defects were attended to and a new piece was given and therefore there is no deficiency in service but it is the complainant’s contention that even the new piece is defective.  There was no representation from opposite party no.2, manufacturer and there is no reply to the notice issued to the complainant.    Even Ex.B1 says that there is outside tampering but does not specifically state if it is repairable.  Ex.B1 shows that in the customer complaint  “ the cell does not get switched off” but the opposite party has not stated anywhere in the job card about it being repaired and we see no reason to interfere with the order of the District Forum except that the District Forum also awarded interest while ordering for refund of the amount paid by the consumer i.e. Rs.12,500/-.  Keeping in view that the mobile phone was used for some time and also that the complainant is getting full refund of the amount paid, we are of the considered opinion that further interest need not be awarded.

        In the result this appeal is allowed in part setting aside the interest portion only while confirming the rest of the order of the District Forum. Time for compliance four weeks.  

                                                                                Sd/-PRESIDENT.

                                                                                Sd/-MEMBER.

JM                                                                             Dt.25-7-2012