BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

                                         C.C.No.32/2016

Dated this the  16^th  day of June 2017

(Date of Institution: 12.08.2016)

P. Sadeesh Babu,  son of  C. Pandian                 

Plot No.5, Seenivasa Illam                

Netha Nagar Main Road                   

Mudaliarpet, Puducherry – 605 004.

….     Complainant

vs

1.  The Lenovo (India) Private Limited       

      Ferns Icon, Level 2, Doddenakundi Village

      Marathahalli Outer Ring Road         

      K. R. Puram, Karnataka.

2. M/s Accord Mobile Gallery

    No.309, Anna Salai,

    Puducherry – 605 001.

3. M/s Smart Care

    No.2, Ayyanarkoil Street,

    Raja Nagar (New New Bus Stand),

    Puducherry. 

                                       ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B., 

MEMBER

FOR THE COMPLAINANT:  Party in person                 

FOR THE OPPOSITE PARTIES: For OP1 – M/s Conscientia Law Associates

                                                                         K.V. Omprakash and S. Yasar

      Afafath, Advocates.

For OP2 and 3:    Ex parte

O R  D  E  R

(by Thiru A. Asokan, President)

              This is a complaint filed by the complainant u/s 12 of Consumer Protection Act for directing the Opposite Parties to pay the price of the Lenovo K3 Note Mobile Phone i.e. Rs.9,200/- along with 15% interest from the date of purchase;  Rs.1,00,000/- towards compensation for mental agony;  to pay Rs.499/- plus 15% VAT towards the pre-determined minimum tariff of Vodafone post-paid connection and to pay a sum of Rs.20,000/- towards litigation charges. 

2.  The case of the complainant is as follows:

The complainant had purchased LENOVO K3 Note Mobile phone bearing IMEI No.868416020297353 from second opposite party for Rs.9200/- on 04/07/2016.  The Complainant fixed his old SIM Card and started using the mobile phone.  From the very date of purchase of the said mobile phone, it was not receiving network signal properly and hence, it was not working properly.  Thinking that the problem was on mobile connection/network,  the complainant brought a new Vodafone Post Paid connection with a minimum tariff of Rs.499/- on 12.07.2016 and used it with the said mobile.  All these efforts went in vain and the signal problem persisted.  After waiting for another few days, he removed the SIM Card and fixed in the mobile phone of his spouse and found that they were working properly receiving network signals strongly and ascertained that the problems lies only in the LENOVO K3 Note Mobile Phone and not in the connection / network.  On 15/07/2016 at 4.00 p.m. the complainant approached the third opposite party for rectification of the defect in the mobile phone.  The service personnel advised him to leave the mobile phone for 2 days for observation and rectification.  The complainant went on 18/07/2016 at 11.30 a.m. to get back the phone, the service personnel said that there is no problem in the phone and kept the phone for another 15 minutes for observation.  While waiting there, the complainant observed that he fixed a SIM which was with him and examined the phone.  Then he removed that SIM and gave back the mobile phone stating that it was working properly.  When the Complainant enquired about the remedial step that he took to rectify the mobile for which, the service personnel said that tower cable was replaced.   The complainant took the mobile phone and fixed his both SIM cards and found that it was not working again.  On the same say at 3.00 p.m.  he approached the third Opposite Party.    The Service Personnel was speaking rudely, triggering an argument.  At last, he said that he will check whether it works properly by updating the Operating system and asked the complainant to leave the phone again with him.  On the same day at 6.00 p.m. the phone was returned back to the complainant stating that the software was updated.  The complainant fixed his SIM Cards there itself and found no network signal in the phone.  The service personnel said that board has to be changed and retained the phone, asking him to collect it back in four to five days.  On the morning of 22/07/2016, the complainant contacted the Service Centre in person.  The Service personnel behaved rudely and said that it will take another 10 to 15 days.  Disappointed by this reply in a rude manner, the complainant went to the state of agony. Despite all his patience, he has not made any good to rectify the defect in the mobile phone.  Moreover, the complainant incurred a financial loss of minimum pre-determined tariff on the new Vodafone Post Paid connection without any usage.  On account of Service Centre’s dereliction of duty and failure and neglect to rectify the same, the complainant lost all hopes on LENOVO products and he had suffered mental loss which the concerned are liable to compensate.  The complainant sent a legal notice on 23/07/2016.  On 30/07/2016 he enquired about the repair done to the Smartphone.  The lady who responded to the call stated that the repairs to the phone will be over by 03/08/2016 or 04/08/2016.  Since, the complainant received no phone call from the service centre; he called again over phone on 04/08/2016 at 3.00 P.M and enquired.  He was told that the service will be over by that weekend.  But, so far, even after a lapse of more than 24 days from the date of handing over the Smartphone for service and even after serving notice , the complainant has not got back his Smartphone nor have he received any reply from the opposite parties.  Hence, this complaint.    

3.  The first opposite party only filed reply version and the Opposite Parties 2 and 3 remained absent and set ex parte. 

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

All the averments made and contentions raised by the complainant in the complaint are denied, as being false and baseless.  There is no deficiency in service or unfair trade practice on part of the Opposite Parties.  The opposite parties duly honoured the warranty claims and repaired the mobile phone, free of cost.    If there was a network issue from the day of purchase, the  complainant should have approached the service center instead of waiting almost for fifteen days from the date of purchase.  As and when the complainant approached the service center the handset was being checked thoroughly and handed over to the complainant.  Therefore, there is no deficiency in service from the part of answering opposite party.  This opposite party stated that the call was logged on 26.07.2016 for network issue for which the Printed Circuit Board (PCB) was replaced and the call was closed on 6.8.2016.  After the call was closed and the complainant was being intimated to collect the handset as the handset is in good working condition.  But, it is the complainant who never approached the service center to collect the same.  Further, it is submitted that network issue cannot be called as a manufacturing defect.  This opposite party further stated that  the content of Para No.8 and Para No.9 and Para No.10 of the complaint are false and they denied the same.  Further it is stated by this opposite party that they have not received any legal notice from the complainant.  The complainant was informed to collect the handset which is lying at the service center in good working condition.  But it was the complainant who never turned up to collect the handset.  In view of the facts and circumstances of the case, the Mobile phone which had issues was repaired and resolved by replacing the required parts as per the terms and conditions of the Warranty.  Further, it is submitted that as a gesture of goodwill the answering opposite party is ready to offer one-month warranty extension.  Hence, prayed for dismissal of the complaint with costs.

5. The complainant and the first opposite party endorsed no oral evidence.  However, this Forum heard the arguments of the complainant and perused the written arguments filed by the first opposite party. 

6.  Points for determination are:

1. Whether the Complainant is the  Consumer?
2. Whether the opposite parties attributed negligence and deficiency in service?
3. To what relief the complainant is entitled for?

7.  Point No.1:

The complainant purchased one  Lenovo-K3 Note Cell phone from the second opposite party manufactured by first opposite party on 04.07.2016 vide Consignment Bill No. 3734 for  Rs.9,200/-.    Hence, the complainant is the consumer.

          8. Point No.2:

          In order to establish the case, the complainant has filed five documents.   The complainant alleged that he purchased a Lenovo mobile phone from the second opposite party on 04.07.2016 for Rs.9,200/- as per document No.1 and right from the date purchase, the complainant did not receive network signal properly by fixing his old SIM.  The complainant also purchased one Vodafone Post Paid connection for Rs.499/- on 12.07.2016 as per document No.2 and used the same, even then the same signal problem persist.  Whereas,  he inserted both the sim cards with his spouse mobile, he received the network / signal and hence, on 15.07.2016 he handed over the cell phone with the third opposite party who is the authorised service centre of the first opposite party vide document No. 3 (1) who replaced the tower cable and returned the cell phone to the complainant.  Again the same problem was occurred in the mobile and hence, the complainant handed over the mobile to the third opposite party on 18.07.2016 vide document No.3(2),  (the third OP erroneously noted the date as 15.07.2016) who in turn updated the software and returned back the cell phone to the complainant.  The complainant fixed his sim card at the service centre itself and found no network / signal in the phone and hence, the complainant handed over the mobile to the third opposite party on 18.07.2016 vide document No. 3 (3) who informed that the board has to be replaced.  But, even after a lapse of 24 days, the third opposite party did not return the cell phone.  The complainant further alleged that he has issued a legal notice on 23.07.2016 vide document No.4 and the same was received by the opposite parties vide document No.5 series, however, no reply was sent by them.  It is alleged by the complainant that due to non-return of the cell phone in good condition leading to deficiency of service of the opposite parties,  he incurred loss and injuries and hence, pray for compensation. 

          9. The first opposite party alleged that the third opposite party repaired the mobile phone by replacing respective part of the handset and the mobile phone was restored to good working condition, but the complainant has failed to collect the mobile phone from the third opposite party.  As and when the complainant approached the third opposite party, the service was provided.  It is further alleged that as per the terms of the Lenovo Limited Warranty, if the product could not be repaired, then the question of refund or replacement will arise.  In the instant case, the mobile phone has been repaired by the third opposite party by replacing the required part and hence, the question of granting either the replacement or refund of cost of the mobile phone does not arise.  The first opposite party further alleged that the call was logged on 26.07.2016 for network issue for which the Printed Circuit Board (PCB) was replaced and the call was closed on 06.08.2016.  Hence, there is no need for replacement or refund. 

10. From the above facts and evidence adduced by the complainant, it is clear from document No.1 that the complaint alleged mobile phone was purchased by the complainant from the second  Opposite Party on 04.07.2016 for Rs.9,200/-.   Further, on perusal of document No.2, the complainant purchased a Vodafone Post Paid for Rs.499/- and on perusal of document No.3 series,  the Job Sheets dated 15.07.2016 and 18.07.2016 issued by the third opposite Party, it is found that the said mobile phone was having problems of  receiving Tower Signal, Software and PCB etc.  From the above, it is crystal clear that from the date of purchase itself, the cell phone has material and technical problem and required frequent repairs which caused severe mental agony, loss and sufferings to the complainant.  Hence, the complainant issued a legal notice dated 23.07.2016 (document No.4) to all the opposite parties which was acknowledged by the opposite parties on 25.07.2016 and 27.07.2016 respectively.  

11. In order to disprove the allegations made by the complainant, the first opposite party only filed reply version and written arguments, the opposite parties 2 and 3 remained absent.  The first opposite party stated that if at all the cell phone got any defects, it must be returned to the service centre immediately, but the complainant has handed over the same to the third opposite party only after 15 days.   Further, the first opposite party stated that the network issue is not a manufacturing defect and hence, there is no defect in the cell phone and that they are not responsible for the same.  Moreover, the first opposite party stated that they have not received the legal notice issued by the complainant and hence, they could not give reply for the same. 

          12. This Forum carefully perused the pleadings and the documents filed by the complainant and the first opposite party.  On perusal of document No.3 (1), the complainant approached the third opposite party who is the authorised service centre of first opposite party on 15.07.2016.  The complainant purchased the mobile phone on 04.07.2016 and within 10 days, the complainant approached the third opposite party to carry out the repair in the cell phone.  This 10 days delay in approaching the service centre was also properly explained by the complainant that he tried with various sim cards for getting the signal.  But all the efforts taken by him ended in vein and came to the conclusion that the mobile phone only having problem in receiving signal.     It is quite normal, that everybody will test and try to get the signal by replacing the sim cards.   Hence, the contention of the first opposite party that the complainant ought to have approached the third opposite party immediately is not acceptable one.   

          13. It is the further allegation of the first opposite party that the network issue cannot be called as a manufacturing defect.  But, on perusal of the reply version itself, the first opposite party admitted that "the call was logged on July 26, 2016 for network issue for which the Printed Circuit Board (PCB) was replaced and the Call was closed on August 6, 2016.  Moreover, on perusal of document No. 3 (1), the third opposite party though written as "Some areas no network service", but on the top, they have written as SW (or) PCB which means that the cell phone might have software or PCB problems.  Hence, from the above available records, it is observed that the mobile phone got some manufacturing defect which necessitated the third opposite party to replace the main board. 

          14. The other allegation of the first opposite party is that the complainant was informed to collect the handset which is lying at the service center in good working condition, but it was the complainant who never turned up to collect the same.  But, there is no piece of evidence for the same.  Moreover, the second and third opposite parties were set ex parte.    Hence, this Forum found that the defects  in the cell phone could not be rectified by the opposite parties. 

          15. The other allegation of the first opposite party that they have not received the legal notice dated 23.07.2016 issued by the complainant cannot be accepted since the same was delivered to them on 27.07.2016 vide document No.5(1).   The above act of the Opposite Parties would definitely caused mental agony, loss and sufferings to the complainant and hence, this Forum has come to the conclusion that the complainant has clearly established his case and has proved the negligent act and deficiency in service of the opposite parties leading to loss and sufferings to the complainant.  Thus, the complainant is entitled for the claim and Opposite Parties are jointly and severally liable for their negligent act and deficiency in service.

16.     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. Return the sum of Rs.9,200/- towards the 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.5,000/- as cost of the proc        eedings.

Dated this the 16^th  day of June 2017.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER

COMPLAINANTS' WITNESS:  NIL

OPPOSITE PARTY'S WITNESS:  NIL

COMPLAINANT'S SIDE DOCUMENTS:

OPPOSITE PARTY'S EXHIBITS:

Ex.R1                   04.02.2015           Authorisation letter from Videocon Company

Power of Attorney to and in favour of RW2 Joseph

Maria Rex.

Ex.R2         (series)                          Owner's manual and Warranty         clause

LIST OF MATERIAL OBJECTS:  NIL

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

   MEMBER