BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.48/2015

(Date of Institution: 26.08.2015)

Dated this the  4^th  day of November 2016.

P. Vijayabaskar, son of M. Pitchaiappan

No.20, Kali Koil Street            

Thengaithittu,             

Puducherry – 605 004.

                                                ….     Complainant

Vs.

1. The Authorised Officer

    Jothi Mobiles                          

    No.2,Anna Thidal                

    Municipal Building, Anna Salai,

    Puducherry – 605 001.

2. The Authorised Officer       

    Guna Electricals       

    No.2, Thiyagaraja Street    

    Orleanpet, Puducherry.                

3. The Authorised Officer           

    Lava International Limited          

    No.A-56, Sector - 64

    Noida, Uttar Pradesh – 201 301.

                             .                                     ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B.,

           MEMBER

FOR THE COMPLAINANT            :  Tvl. U. Mohan Ilayaraja and
               A.K. Saravanan, Advocates.

FOR THE OPPOSITE PARTIES:          :  Exparte

O R  D  E  R

(By Thiru. A. ASOKAN, President)

This is a complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 praying to direct the Opposite Parties;

1. to reimburse the amount of Rs.7,700/- along with 24% interest from 10.09.2014 the date of delivery of the defective LAVA iris X1 dual SIM GSM/WCDMA mobile handset to till date of payment;
2. to pay a sum of Rs.1,00,000/- towards compensation for mental agony;
3. to pay a sum of Rs.50,000/- towards compensation for the deficiency in service;
4. to pay a compensation of Rs.50,000/- towards compensation for unfair trade practice;
5. to pay a sum of Rs.25,000/- to the complainant towards cost of this complaint and
6. to direct the opposite parties to stop such kind of Unfair Trade Practice.

2.  The case of the complainant is as follows:

          The complainant stated that on the advertisement made by third opposite party, he had purchased a mobile phone namely LAVA iris X1 dual SIM GSM/WCDMA from the first opposite party on 10.09.2014.  At the time of purchase, the first opposite party assured that the handset is having 3G operations.  On 3.12.2014 when the complainant switching over to the 3G Network, it had not done so, hence, he handed over the mobile phone with the second opposite party on the same day for service who conducted preliminary check up and stated that it is a major issue and it requires service from the Engineers of third opposite party and returned the mobile after 1-1/2 months i.e. on 21.01.2015.  On the very next day i.e. on 22.01.2015 the problem of 3G service was not rectified and on the same day, the complainant returned the handset to the second opposite party who informed that the handset is having manufacturing defect and the complainant would be delivery an alternative handset within a week's time.  Accordingly, on 30.01.2015, a new handset of same mode was provided to the complainant which was also having the same problem and so on 9.2.2015 the complainant once again returned the same to the second opposite party and on 10.02.2015 the complainant had sent a mail to the third opposite party about the problem persist in the handset.  On 24.2.2015 the second opposite party handed over another standby handset of same model to the complainant which was also having the same problem and hence, the complainant returned it to the second opposite party and wrote another mail on 26.02.2015 to the third opposite party for which the third opposite party replied on 27.2.2015 and instructed the complainant to hand over the mobile set to the second opposite party, whereas, the cell phone was with the second opposite party only and the same was duly replied by the complainant.  On 01.03.2015 the third opposite party replied that the problem will be sorted out as soon as possible.  On 04.03.2015 the complainant once again mailed the third opposite party and also contacted the Customer Care Centre, but all efforts ended in vain.  The same was informed to the first opposite party who also turned deaf ear.  The complainant made repeated demands to rectify the problem, but the second and third opposite parties had pointed out each and other person shifting the burden on each other.  The complainant further stated that on enquiry with the second opposite party, they had stated that most of the LAVA iris X1 dual SIM GSM/WCDMA mobile handset is having the same problem of manufacturing and technical defects.  The above act of the opposite parties clearly establish deficiency of service and unfair trade practice and it caused mental agony to the complainant.  Hence, this complaint. 

3.       The opposite parties remained absent and were set exparte.

4.       On the side of the complainant, he has chosen to examine himself as CW.1 and marked Exs.C1 to C8.

5.  Points for determination are:

1. Whether the complainant is the consumer?
2. Whether the opposite parties attributed deficiency in service and unfair trade practice?
3. To what relief the complainant is entitled for?

6.  Point No.1:

          The complainant purchased one mobile phone LAVA iris X1 dual SIM GSM/WCDMA for Rs.7,700/- from the Opposite Party No.1 on 10.09.2014 with one year warranty vide Ex.C1.    Hence, the complainant is the consumer.

7.       Point No.2:

          The complainant was examined as CW1 and marked Exs.C1 to C8.  The Opposite Parties were duly served, but called absent and set ex parte.  The complainant submits that he has purchased one cell phone with an assurance of 3G operation from the Opposite Party No.1 for Rs.7,700/- on 10.09.2014.  Ex.C1 is the photocopy of the bill issued by the first opposite party for the alleged purchase made by the complainant.    The complainant further alleged that when he was switching over to 3G Network on 03.12.2014, he found problem in accessing the service of 3G network.  Immediately, the complainant approached the second Opposite Party who is the Authorised Service Centre of LAVA Cell phones and handed over the handset for service vide Ex.C2 photocopy of job sheet.  The second  Opposite Party received the said cell phone from the complainant and stated that it requires service from the Engineers of third Opposite party and returned the cell phone to the complainant on 21.01.2015.  The complainant alleged that since the problem of 3G service was not rectified, he handed over the cell phone to the second opposite party on the very next day i.e.  on 22.01.2015 who in turn gave the complainant another cell phone of same model stating that the complainant's cell phone is having manufacturing defect, but the alternate cell phone given by second opposite party also having the same problem and hence,  on 09.02.2015 returned the same to the second Opposite Party vide Ex.C3 photocopy of job sheet.  On 24.02.2015 the second opposite party handed over another standby handset of same model to the complainant.  Since the said cell phone was also having such problem, the complainant returned the same to the second opposite party and sent a mail to the third opposite party vide Ex.C4 who instructed the complainant to handover the mobile to the second opposite party while the same was with the second opposite party itself.   Since all the efforts taken by the complainant ended in vein, he had issued a legal notice dated 23.04.2015 vide Ex.C5 to the opposite parties.  Though the same was received by the opposite parties, they have not even cared to send reply.  The act and attitude of the opposite parties caused mental agony to the complainant and hence, the complainant filed this complaint for compensation for the alleged mental agony,  deficiency in service and unfair trade practice. 

8.       From the above facts and evidence adduced by the complainant, it is clear from Ex.C1 that the complaint alleged mobile phone was purchased by the complainant from the first Opposite Party on 10.09.2014 for Rs.7,700/- with warranty period of one year.      Further, on perusal of Ex.C2, the Job Sheet dated 03.12.2014 and Ex.C3 dated 09.02.2015 issued by the second Opposite Party, it is found that the complainant alleged mobile phone and the alternate mobile phone given by second opposite party were having the problem of accessing 3G service Network.    All the efforts taken by the complainant ended in vein, the purpose for which the mobile phone purchased by the complainant was not served.  But, it gave mental agony, loss and sufferings.  It is alleged by the complainant that when he reported the defect for many times to the third opposite party who is the manufacturer of the same and the second opposite party who is the service centre of Lava phones blatently informed that  it could not be rectified.  The replaced cell phone and the complaint alleged standby cell phone both were having the same problem.  Hence, this Forum observes that the alleged cell phone namely LAVA iris X1 dual SIM GSM/WCDMA having manufacturing defect.   To refute the allegations of the complainant and establish that the cell phone is having 3G Network access, the Opposite Parties did not appear before this Forum to let in evidence even though they have received summons from this Forum.  The above act of the Opposite Parties clearly establish the complainant's case and hence, this Forum inclined to come to the conclusion that the Complainant has proved the negligent act and unfair trade practice of the Opposite Parties.  Thus, the complainant is entitled for the claim and Opposite Parties are liable for their negligent act, deficiency in service and unfair trade practice.

9.       Point No.3:

          In view of the decision taken in point No.2, this complaint is hereby allowed and the First Opposite Party is directed to 

1. Return the cost of the mobile phone of Rs.7,700/- to the complainant;
2. The opposite parties are jointly and severally pay a sum of Rs.15,000/-              as compensation to the complainant for the deficiency in service.
3. To pay a sum of Rs.5000/- as cost of the proceedings.

The above said order should be complied within two months from the date of receipt of this order.

Dated this the 4^th day of November 2016.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

MEMBER

COMPLAINANTS' WITNESS:  

CW.1          19.09.2016           P. Vijayabaskar       

OPPOSITE PARTY'S WITNESS:  Nil

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS: Nil

LIST OF MATERIAL OBJECTS:   NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

     MEMBER