By Sri. MOHAMED ISMAYIL C.V., MEMBER.
The grievance of the complainant is as follows:
1. On 26/10/2022, the complainant had purchased S901 Galaxy S22 Samsung Mobile Phone (IMEA No. 359205430673196) and Boat Airdopes, wireless earphone from the first opposite party for Rs. 62,999/-. The complainant had availed financial assistance from HDFC Bank and same was repaid properly. It is averred that purchase of the phone was made on the basis of assurance given by the opposite party with regard to its quality and warranty. After its use for a short duration, colour of back side of the phone was faded and same was informed to the first opposite party. On the basis of direction given by first opposite party, the complainant had handed over the phone to the second opposite party. It is averred that the complainant had approached the second opposite party on two occasions but the second opposite party did not rectify defects of the phone. It is alleged by the complainant that the opposite parties have failed to rectify the defects of the phone or to replace the same with a new one. The complainant had even demanded refund of the price of the phone, but the opposite parties were turned down. It is alleged that the first opposite party sold out a defective phone to the complainant. On 19/10/2023 the complainant had issued a legal notice to the first opposite party but no action was taken by them. It is also alleged by the complainant that the defect was found during the period of warranty. The opposite parties are failed to provide proper service and acts of the opposite parties can be considered as deficiency in service and unfair trade practice. So the complainant has demanded to refund of Rs. 62,999/- as the price of the phone and another Rs. 1,00,000/- as compensation for the sufferings of physical strain caused due to the continuous visit to the opposite parties. In addition, the complainant prayed for directions to the opposite parties to pay Rs. 1,00,000/- to the complainant as compensation for the sufferings of mental agony and Rs. 50,000/-as compensation for the act of unfair trade practice. The complainant also demanded Rs. 50,000/- as cost of the proceedings.
2. The complaint is admitted and issued notice to the opposite parties. The opposite parties have received notices but did not appear before the Commission. The opposite parties are also failed to submit their versions. Hence the Commission set the opposite parties as exparte. The Commission proceeded with evidence of the complainant.
3. The complainant has filed affidavit in lieu of his evidence. The documents of the complainant is marked as Ext.A1 to A7 documents. Ext.A1 document is the Tax invoice dated 26/10/2022 showing the price of the mobile phone and its accessories as Rs. 62,999/-. Ext.A2 document is the copy of warranty policy issued by the first opposite party to the complainant. Ext.A3 document is the photograph of the phone showing alleged defect of colour fade on the back side of the phone. Ext.A4 document is the copy of legal notice dated 19/10/2022 issued by the complainant to the first opposite party. Ext.A5 document is the postal receipt issued from postal department showing issuance of legal notice to the first opposite party. Ext.A6 document is the postal acknowledgement card showing receipt of legal notice on 25/10/2023 by the first opposite party. Ext.A7 document is the copy of warranty card of the mobile phone.
4. Heard the complainant in detail. Perused documents and affidavit of the complainant. The Commission considered the following points to adjudicate the matter:-
- Whether the opposite parties have committed deficiency in service or unfair trade practice towards the complainant?
- Relief and cost?
5. Point No.(i):-
The Commission is considering the above points together for the sake of brevity. The argument of the complainant is that he had purchased a mobile phone from the opposite party as per Ext A1 document and same became defective as colour of its back side was faded during the period of warranty. The complainant has produced Ext.A2 and A7 documents to prove that defect was found during the validity of warranty period. It is argued that colour of back body was faded from top to bottom by a width of around 3 - 4 cm, just below the camera. It is also argued that the issue of fading was increasing day by day. The complainant further alleged that the second opposite party had failed to repair the defect even though the complainant had repeatedly contacted them. So the complainant argued that the opposite parties are liable to refund price of the mobile phone and also liable to pay compensation as prayed in the complaint.
6. In the evaluation of available evidence, it can be seen that the mobile phone of the complainant was suffered defect of colour fading. It has come out in evidence that the complainant had purchased the subject mobile phone on the basis of assurance given by the first opposite party. The Commission also find that the second opposite party has failed to repair the alleged defect of the phone. There is no evidence available before the Commission that mobile phone has suffered manufacturing defect. Ext A2 document issued by the first opposite party would show that the first opposite party is responsible for the defects occurred to the phone of the complainant. Ext A2 document would also show that the first opposite party was ready to take back the product after deducting depreciation cost, if defects are detected. Moreover, the second opposite party was liable to render proper service to the product, but failed. The Commission find that the opposite parties were liable to rectify the defect of the phone. The Commission also find that the first opposite party even failed to respond to Ext A4 document issued by the complainant. The Commission find that the defect was found during the period of warranty. The act of the opposite parties caused mental agony and inconvenience to the complainant which are amounted to deficiency in service. Hence both opposite parties are liable to pay compensation to the complainant.
7. The Commission consider that the complainant has demanded a huge amount from the opposite parties to pacify the sufferings of mental agony, physical strain and damage affected to by the complainant. The Commission cannot make an order to the opposite parties to pay such huge amount as compensation. The Commission consider that the compensation should be in par with the actual loss sustained to the complainant. Here, the complainant has failed to establish the actual loss suffered to him phone due to fading of colour on back side of the phone. The complainant doesn’t have a case that phone was not in a working condition. At the same time the Commission find that due to fading of the colour, the complainant has suffered mental agony and inconvenience. Ext.A4 document would show that complainant had demanded Rs. 10,000/- as compensation and refund of the price of the mobile phone from the first opposite party alone. But the Commission find that both opposite parties are liable to pay Rs. 25,000/- to the complainant as compensation for their deficient service. Moreover, the opposite parties are also liable to pay Rs. 5000/- to the complainant as cost of the proceedings. The Commission find that the complainant has failed to adduce evidence in connection with loan availed for the purchase of subject mobile phone. In the light of the discussion made above the Commission allow the complaint partly in the following manner: -
- The opposite parties are directed to pay Rs. 25,000/-(Rupees Twenty five thousand only) to the complainant as compensation for the sufferings of mental agony and inconvenience due to the acts of the opposite parties.
- The opposite parties are directed to pay Rs. 5000/- (Rupees Five thousand only) to the complainant as cost of the proceedings.
The opposite parties shall comply this order within 30 days from the date of this order otherwise entire amount shall carry interest at the rate of 9% per annum from the date of this order till the date of realisation.
Dated this 30th day of April, 2024.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1to A7
Ext.A1: Document is the Tax invoice dated 26-10-2022 showing the price of the
mobile phone and its accessories as Rs. 62,999/-.
Ext.A2: Document is the copy of warranty policy issued by the first opposite party to
the complainant.
Ext.A3: Document is the photograph of the phone showing alleged defect of colour
fade on the back side of the phone.
Ext.A4: Document is the copy of legal notice dated 19-10-2022 issued by the
complainant to the first opposite party.
Ext.A5 : Document is the postal receipt issued from postal department showing
issuance of legal notice to the first opposite party.
Ext.A6: Document is the postal acknowledgement card showing receipt of legal
notice on 25-10-2023 by the first opposite party.
Ext.A7: Document is the copy of warranty card of the mobile phone.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Nil
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
