BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI. A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C.No: 116/2011 Filed on 06/04/2011

Dated : 30..04..2012

Complainant:

Harish Kumar. U., Director, Rich Life Interiors & Exteriors, Kalanilayam, Poojappura, Thiruvananthapuram.

(By Adv. Prabhu Vijayakumar)

Opposite parties:

1. The Managing Director, Sony Ericsson Mobile Communications Private Limited, 4^th Floor, Dakha House, 18/17, WEA Aarol Bagh, New Delhi – 110 005.

2. The Manager, Sony Centre, Sycamore Complex, Pattom, Thiruvananthapuram,

3. Prompt Services, Sony Ericsson Authorised Service Centre, TC.2/2410, Bethel Towers, Pattom, Thiruvananthapuram.

    

(By Adv. Sreevaraham G. Satheesh) This O.P having been heard on 20..04..2012 the Forum on 30..04..2012 delivered the following:

ORDER

SMT. S.K.SREELA, MEMBER:

The case of the complainant is as follows: The complainant had purchased a Sony Ericcson Mobile phone of the model U10i (Aino) manufactured by the 1^st opposite party from the 2^nd opposite party for Rs. 20,210/-. The phone had started developing problems within 2 to 3 days from the date of purchase and was getting hung all the time. As per the advise of 2^nd opposite party, complainant took the phone to the 3^rd opposite party, who repaired the same with the assurance that there will be no troubles afterwards. But the problems again crept up and the complainant again took it to the 3^rd opposite party on 16/06/2010. Again the same process of repairing was done and the phone was returned with another assurance. After few days itself the same problems resurfaced and the complainant was put to a lot of trouble and embarrassment due to the said problems. The complainant had lost out on a lot of business deals and contracts due to his unavailability and unreachability over the phone. The complainant again took it to the 3^rd opposite party and they had told him that the internal board of the phone has to be replaced. The complainant was already fed up with the situation and had expressed his unwillingness to repair the brand new phone which was already repaired twice. The complainant had asked for a replacement of the said defective phone with a new phone of the same make and model. The complainant had made such a demand since it was obvious that the phone was having inherent manufacturing defects and also was of inferior quality. But even though repeated demands were made by the complainant to the opposite parties no positive action was seen forthcoming in this regard and the opposite parties had stuck to their stand of repairing the phone. Hence the complainant is forced to approach the Hon'ble Forum for redressal of his grievance.

2. Opposite parties 1 & 2 remain ex-parte. 3^rd opposite party has filed their version contending as follows: The complaint is not maintainable either under law or on facts. There is no deficiency of service on the part of the opposite party and the complaint is not maintainable against the opposite party. That the complainant entrusted his mobile phone to the opposite party on three occasions alleging complaints of slow functions and calls getting stuck sometimes. The said complaints are not out of any defect of the set. It is only due to the attack of virus which can happen when the set is connected with computer or other devise for data transfer. The same requires software updating alone and the same was done and returned. There was no failure of any components at any time and any service or repair was ever needed for the set. Opposite party never asked the complainant for replacement of the board or any other components. The alleged complaint is only out of the nature of use of the mobile phone by the party and it is common in such use. The complainant was advised to connect the phone only with devices having effective antivirus software. The alleged complaint can be prevented by careful use only. The alleged complaint is not due to any inherent manufacturing defect. The complainant is not entitled for a new phone or its value as claimed. There is no failure on the part of the opposite party as alleged. There is no deficiency and the complainant is not entitled for any reliefs as prayed for.

3. Complainant has been examined as PW1 and has marked Exts. P1 to P8. Opposite parties had no evidence.

The following points are raised for trial:

1. Whether the mobile phone is having any manufacturing defect?

2. Reliefs and costs?

4. Points (i) & (ii): According to the complainant, the mobile phone in dispute started malfunctioning within 2 days of its purchase and the complainant pleads that the same had to be repaired twice and when the same became defective for the 3^rd time, the 3^rd opposite party asked the complainant to replace the internal board which was not acceptable by the complainant since he had already repaired it twice and the complainant had requested to replace the defective phone with a new phone which was not done by opposite parties, finally leading to filing of this complaint. Manufacturer and the dealer never turned up to contest the case. But 3^rd opposite party has contended that the first complaint of software updating was done on 1/6/2010 and set was returned on the same day. The second similar complaint was on 16/6/2010. The same was also rectified by software updating and returned. The 3^rd complaint of the same nature was on 12/7/2010. It was also rectified by updating. But the party has not taken back the set with some malafide intention. He was informed over telephone and also by way of letter. Complainant as PW1 has deposed that there is no default on the part of the service centre. The problems reported as per Ext. P3 is that "Menus and / or application slow and sometimes hang" and the Engineer remarks states "Software done OK". Similarly in Ext. P4 the same entries are made Ext. P3 is dated 1/6/2010 and Ext. P4 is dated 16/6/2010. From the above records it could be seen that the complainant had to take the mobile phone to the 3^rd opposite party for repairing within one month of purchase of the mobile phone. So it is to be presumed that it was not fit for the purpose for which it was sold. If repeated servicing and repairing of the mobile phone fail in resolving the problems encountered by its operator, it points to the existence of some serious defect in it. The manufacturer has not appeared before the Forum. There is no denial on their part besides that PW1 has not been cross examined by opposite parties 1 & 2. Hence the affidavit of PW1 stands unchallenged.

5. Here the complainant could not use the mobile phone defect free even for a month. The desire of a new buyer has been disappointed by the performance of the mobile phone. From the very beginning the mobile phone was taken to the opposite parties and complainant's main duty was repairing the mobile phone. This is an unfair trade practice on the part of opposite parties and the mobile phone has to be replaced with a new one. 3^rd opposite party has stated that the party has not taken back the set with malafide intention though he was informed over telephone and by way of letter. The phone had to be repaired twice and it became defective again and evidently it is with just cause and reason that it is not taken back by the complainant. For the loss of pleasure caused by a defective phone the complainant has to be compensated and we allow Rs. 5,000/-.

In the result, complaint is allowed. Opposite parties 1 & 2 shall replace the defective phone with a brand new defect free phone of the same model or in the alterative shall pay Rs.20,210/- to the complainant. Opposite parties 1&2 shall also pay Rs.5,000/- towards compenation and Rs.3,000/- towards costs of the proceedings.Time for compliance one month from the date of receipt of this order, failing which the entire amount shall carry interest @ 12% p.a from the date of complaint. 3^rd opposite party is exempted from any liability.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 30^th day of April, 2012.

Sd/-

S.K. SREELA, MEMBER.

Sd/-

G. SIVAPRASAD,

PRESIDENT.

Sd/-

ad. BEENA KUMARI.A., MEMBER.

C.C.No: 116/2011

APPENDIX

I. Complainant's documents:

P1 : Retail Invoice dated 19/05/2010 for an amount of Rs. 20,210/- of QRS Retail Limited

P2 : Copy of the warranty certificate

P3 : Work order No.SE 310PS112843 created on Jun/1/2010 of prompt services, Pattom, Thiruvananthapuram.

P4 : Copy of the work order No. SE310PS113160 created on JUN/16/2010 of Prompt Services, Pattom, Thiruvananthapuram.

P5 : Work order No.SE310PS113659 created on Jul/12/2010 of Prompt Services, Pattom, Thiruvananthapuram.

P6 : Advocate notice issued by Adv. Prabhu Vijayakumar dated 13/12/2010

P7 : Postal receipts

P8 series: Acknowledgement cards

II. Complainant's witness:

PW1 : Hareeshkumar. U

III. Opposite parties' documents : NIL

IV. Opposite parties' documents : NIL

Sd/-

PRESIDENT