BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM;
VIZIANAGARAM
(UNDER THE CONSUMER PROTECTION ACT, 1986)
PRESENT:- SRI T.SRIRAMA MURTHY, M.A., LL.B., PRESIDENT
SRI G.APPALA NAIDU, M.Com.,MBA., P.G.D.C.S., B.L., P.G.D.M.V.O., MEMBER
THURSDAY THE 5TH DAY OF DECEMBER,2013
C.C.No.03/2012
Between:
M.S.S.Sankararao, S/o Late Mullapudi Naga Lingeswarudu, 33 years,
Hindu, Private Employee, residing C/o G.Lakshmi, D.No.18.4/3-3,
Panneru Vari Street, Vizianagaram.
… Petitioner
And:
1) The Proprietor, Maridian Mobile Pvt Limited, D-2A,
Huuz________Khas______ enclave_________New Delhi-110016.
2) Service Manager, Customer Care Service, Aruna Cell care,
D.No.47-3-18/5, Sri Nelaya Complex, 5th lane, Dwarakanagar,
Visakhapatnam – 530 016.
3) The Authorised dealer & Proprietor, Cell Point, D.No.8-12-56,
Shop No.4&5, Vytla Avenue, R.T.C.Complex road, Vizianagaram-2.
… Opposite Parties
This complaint is coming on for final hearing before us in the presence of Sri J.Bheemasena rao, Advocate for the petitioner and Sri K.Srinivasa Rao, Advocate for the Opposite Parties 1 & 2, Sri P.Dhananjaya rao Advocate for the Opposite party 3 and having stood over for consideration, the Forum made the following:-
O R D E R
G.APPALA NAIDU, MEMBER
This complaint is filed U/S 12 of C.P.Act by the complainant against the OP’s seeking relief to direct the OP’s to pay Rs.2,300/- towards cost of cell phone with interest at 24% per annum from 21.09.2011 till the date of payment to pay compensation of Rs.10,000/-, to pay cost of the complaint and also grant such other reliefs which are essential under the circumstances of the case.
The complainant submits that the 1st OP is the proprietor and authorized marketing authority of FLY B-436 cell phones, 2nd OP is customer care service center authority of 1st OP and 3rd OP is the authorized dealer and proprietor of Fly B-436 cell phone and all these OP’s made vide publicity and encouraged the public like the complainant to buy the cell phone of Fly B-436 stating that it is a good quality, quantity and having good features with warranty of one year.
Accordingly the complainant purchased FLY B-436 cell phone bearing IMEI No.910604600282519, IMI to No.910604600384513 charger No-110301684 on 28.08.2011 for an amount of Rs.2,300/- under cash bill receipt No.4264 from 3rd OP and there is a warranty for a period of one year for the said cell phone. However the said cell phone worked properly upto 21.09.2011 but on 21.09.2011 the said cell phone not worked and there is no service of outgoing and incoming calls and therefore immediately the complainant approached the 3rd OP and informed about the said complaint. On that the 3rd OP did not give any reply properly and hence the complainant went to 2nd OP and gave complaint about the said cell phone besides handing over of the same under work order No.FIN 119 ACC 12149 dated 21.09.2011 at 06.09PM at Visakhapatnam.
Since then the complainant was going round the office of 2nd OP from Vizianagaram to Visakhapatnam by spending money and requested the 2nd OP to attend the repair and handover of the said cell phone to him but the 2nd OP did neither attend the repair work nor returned the cell phone to him. There after the complainant went to 3rd OP and questioned him as to why he sold the defective cell phone to him and also asked them to replace the said cell phone which was in the custody of 2nd OP or alternatively refund the amount of Rs.2,300/- but the 3rd OP made the complainant went round the shops of OP 2 and 3 several times and they did not respond to his words or repair work of the said cell phone but caused much mental agony, loss, damage to the complainant. Due to lack of the said cell phone the complainant lost all his communications also. Therefore the complainant got issued a legal notice dated 14.11.2011 to the OP’s demanding them to return the amount of Rs.2,300/- with interest and compensation but the OP’s 2 and 3 received the said notice and the notice from OP1 is not yet returned. However the 2nd OP did not give any reply but the 3rd OP got issued belated reply with all false allegations on 12.12.2011. Hence this complaint.
It is further stated by the complainant that there is deficiency of service on the part of OP’s as the said cell being defective in manufacture sold to him besides the fact that the OP’s did not attend to the complaint nor handed over the said cell phone till date. Further the cause of action for the complaint arose on 28.08.2011 when the complainant purchased the cell phone and inspite of his several visits personally to the premises of OP 2 and 3 as well as legal notice dated 14.11.2011 issued to the OP’s 1,2,3 they did not attend the repair of the said cell phone or complied with the demand of the complainant.
Counters filed by OP’s 1,2,3 denying the allegations leveled by the complainant except those which are specifically admitted therein and puts the complainant to strict proof of the same. The OP No.1 in their counter stated that the complaint filed by the complainant is false and frivolous and it is also nothing but a pressurising tactics adopted by the complainant with an intension to coerce the OP’s to succumb to the unlawful and baseless demands of the complainant as the cell purchased by the complainant was not suffering from any defect much less the manufacturing defect and the problem if any or as alleged faced by the complainant is due to his mishandling of the mobile handset and hence the complainant is not entitled to any damages. Therefore it is pleaded that the complaint is liable to be dismissed with costs as the same is absolutely false, vexatious, malafide and without any basis, as there is no cause of action against the OP No.1.
In the counter filed by the 2nd OP it is submitted that the cell phone of the complainant was not handed over by him at Visakhapatnam but it was handed over to the 3rd OP at Vizianagaram and the promoter of the 1st OP brought the cell phone of the complainant from Vizianagaram for rectification of the defect and has taken back to Vizianagaram. It is further stated that the 2nd OP rectified the defect and handed over the same to the promoter of the company to handover the same to the 3rd OP for delivery to the complainant. Therefore the claim against the 2nd OP is liable to be dismissed with exemplary costs in the interest of justice.
In the counter filed by the 3rd OP it is stated that except the purchase of cell phone Fly B-436 from his shop by paying a sum of Rs.2,300/- the rest of all allegations leveled by the complainant are not true and correct but baseless and invented for the purpose of this complaint. It is further submitted by the 3rd OP that after receipt of lawyer’s notice from the complainant when he contacted the 2nd OP over phone it was stated by the 2nd OP that the complainant did not respond to take delivery of the cell phone from the 2nd OP though having knowledge about rectification of the defects in the cell phone and therefore the complainant cannot claim warranty or guaranty as he committed breach of conditions of warranty. It was further mentioned in the said counter by the 3rd OP that the cell phone was handed over by the complainant to the 2nd OP directly with a view to get wrongful gain by throwing mud and blame on this OP without any fault or deficiency of service though the complainant is at fault. Therefore the 3rd OP prays the Hon’ble Forum that the complaint may please be dismissed with costs in the interest of justice.
The complainant filed complaint, evidence affidavit and brief written arguments respectively. The OP’s 1,2,3 have filed counters, evidence affidavits and brief written arguments respectively.
Exhibit A1 to A6 are marked on behalf of the complainant. No exhibits are marked on behalf of the OP’s 1,2,3.
Exhibit A1 is the original sales invoice/bill bearing No.4264 dated 28.08.2011 for Rs.2,300/-. Exhibit A2 is the job sheet bearing no.FIN 119 ACC 12149 dated 21.09.2011 issued by 2nd OP in favour of the complainant. Exhibit A3 is the copy of legal notice got issued by the complainant to OP’s. Exhibit A4 is the postal acknowledgement from OP no.2. Exhibit A5 is the postal acknowledgement from 3rd OP. Exhibit A6 is the reply notice got issued by 3rd OP.
Inspite of several adjournaments granted by the Forum, there was no representation from both the parties and therefore it was treated that the arguments are heard based on the available material with the Forum.
It is evident from the sales invoice/bill of cell point (Authorised Dealer) at Vizianagaram dated 28.08.2011, the following conditions are mentioned i.e.No.1 goods once sold cannot be taken back No.2 no exchange No.3 Visakhapatnam jurisdiction only, which was also signed by the complainant. Further observation on the riverse side of the said invoice/bill it was communicated that “in warranty period to contact the following authorized servicing centers”. As per the above the following is the address of the service center at Vizianagaram i.e, NOKIA Care, Aditya Cell Care, Railway Station Road, Sweet India Building, Mayuri Junction, Vizianagaram.
In this connection it is observed from the counter filed by the 3rd OP that the complaint is filed against 3rd OP only for the purpose of creating jurisdiction of this Hon’ble Forum and therefore the complaint is not maintainable under law and thus liable to be dismissed with costs in the interest of justice.
It being so as per the orders passed by this Forum to determine the defect in the instrument i.e. cell phone it was referred to Gowri, Authorized mechanic for cellkon mobiles (present independent mechanic), Sai plaza, M.G.Road, Vizianagaram to carry out the analysis/test in relation to the said cell phone as a sequel to which the report given by the aforesaid authorized mechanic clearly shows that there is no problem in voice calls i.e. outgoing and incoming calls and the signals are receiving properly basing on the transmitting form of the tower signals at present and the cell phone is working properly.
In view of all the observations made supra and the report given by the aforesaid Authorized mechanic the complaint is liable to be dismissed from all angles.
In the result, the complaint is dismissed but under the circumstances without costs. The complainant is directed to take back the cell phone deposited in the Forum immediately.
Dictated to the Steno, transcribed by him, corrected by me and pronounced by us in the open Forum, this the 5th day of December,2013.
Member President
C.C.No.03/2012
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For complainant:- For opposite parties:-
PW 1. RW 1.
DOCUMENTS MARKED
For complainant:-
Ex.A-1 Original cash bill No.4264 for Rs.2,300/- issued by 3rd
OP in favour of Complainant.
Ex.A-2 Job sheet bearing No.FIN 119ACC12149 issued by 2nd
OP in favour of Complainant.
Ex.A-3 Office copy of legal notice got issued by complainant
to OP’s with three postal orders.
Ex.A-4 Postal acknowledgement from O.P.No.2.
Ex.A-5 Postal acknowledgement from 3rd O.P.
Ex.A-6 Reply notice got issued by 3rd O.P.
President
