CONSUMER DISPUTES REDRESSAL FORUM KOTTAYAM
Present
Sri. Bose Augustine, President
      Sri. K.N. Radhakrishnan, Member

CC No. 49/12
Monday the 15th   day of July 2013

Petitioner               : Joy Joseph,
    Plakkuzhyil,
    Amalagiri PO,
    Kottayam.
   (Adv.S.Ajith Kumar)

Vs

Opposite parties   :  The Proprietor(Manager)
                  Sony Center, Logos Junction,
                  Kottayam.
2) The Proprietor,
      Doctor Phone, Mackil Center
      Good Shepherd road, Kottayam.
  3) Sony Ericsson Mobile
      Communications India,
      Building No.9A 10th Floor
      DLF Cyber city sector 25 A
      Gurgaon-122002, Hariyana.

ORDER

Sri. Bose Augustine, President

Case of the petitioner, filed on 03/02/2012 is as follows.
Petitioner on 21-3-11 purchased a mobile phone of Sony Ericson W100 i model from the 1st opposite party paying Rs.4800/- as per invoice No.42731.  According to the petitioner immediately after purchase the mobile phone shown complaints, ie sometimes it hung, switched off automatically, power supply cut and push buttons not working etc.  So the petitioner returned the mobile phone to 1st opposite party and they have given another similar phone but it was also become defective.  As per the directions of the 1st opposite party on April 2011 the phone was entrusted to the 2nd opposite party, which is the authorized service center.  The 2nd opposite party said that the problem can be solved by software corrections.  According to petitioner even after software corrections the complaint of the phone subsists as earlier.  On 8-12-11 2nd opposite party has given a substitute another phone bearing model No. J 018.  But it is also become defective on the next day and the petitioner reported the matter to the 2nd opposite party but they did not consider.  The phone given to the petitioner is not a new one, it is a phone somebody might have entrusted the opposite party for curing defects.  According to the petitioner sine the newly purchased phone was defective, opposite party is liable either to replace the defective phone with a brand new same model phone or return the purchase money if no defect free phone is available with them.  But the opposite parties did not care to settle the matter.  Hence petitioner filed this petition claiming refund of Rs.4800/-. He claims Rs. 25000/- as compensation for the damages and Rs.10,000/- as cost of this petition.
Notice was served.  First opposite party failed to appear hence set expartee.  The 2nd and 3rd opposite party filed version.  According to 2nd opposite party, they are one of the Global service providers of Sony Ericsson mobile phones providing warranty service as per the stipulations of the manufacturer and authorized to provide out of warranty services for costs paid.  According to 2nd opposite party the petitioner did not approach them in the month of April 2011.  The 2nd opposite party admitted that the mobile was brought to their service center, first time in August 2011 when the RF unit was swapped, petitioner demanded for a replacement of the purchase phone.  And the petitioner again approached 2nd opposite party in the last week of September.  The petitioner was not interested in taking back the mobile in a serviced condition and the petitioner demanded for change of model for which 2nd opposite party had to get the approval of the manufacturer and thus the petitioner was given another model J 108  instead of the purchased phone.  And after taking the mobile from the 2nd opposite party in December 2011 the petitioner never approached 2nd opposite party for any service or complaints.  According to 2nd opposite party the petitioner has not showed efficacious reasons for deficiency of service or manufacturing defect in his petition.  The 3rd opposite party have done effective service every time and the rectification and replacements were made free of cost in compliance with warranty.  Accotrding to 2nd opposite party the manufacturing defect has to be proved by following the directions as set in Section 18 of the Consumer Protection Act and 2nd opposite party prays dismissal of the petition.
3rd opposite party filed version stating the same contentions of the 2nd opposite party and they also pray for dismissed of the petition.
Points for determinations are:
i) Whether there is any deficiency in service or unfair trade practice on the part of opposite party?
ii) Reliefs and cost?
Evidence in this case consists of the affidavits of the petitioner, 2nd & 3rd opposite party and Exts. A1 to A5 were marked from the side of petitioner.
Point No.1
According to the petitioner the newly purchased mobile phone showed severe defects and malfunctioning.  The copy of the retail invoice/cash memo showing the purchase is produced and the same is marked as Ext.A1.   The copy of complaint given by the petitioner to the manager of 3rd opposite party is produced and the same is marked as Ext.A2.  Ext.A3 is the work order dated 1-8-11.  In Ext.A3 the problems reported are application slow, sometime hang, turns off by push or squeeze and automatic switch off.  Ext.A5 is the work order dated 29-9-11.  The problems reported in Ext.A5 are hanging, blank display, automatic switch off.  From Ext.A3 and A5 it can be seen that the newly purchased phone as per Ext.A1 bill is having serious defects.  Opposite party also admitted that the RF unit of the mobile phone was swapped.  So opposite party given another model J 108 phone to the petitioner.  According to the petitioner the replaced phone is also defective.  Opposite party in their version and the counter affidavit has not denied the contention of the petitioner that the replaced phone is also defective.  The petitioner has a definite case that the replaced phone is not a brand new one but it only a phone which is entrusted to the 2nd opposite party for repairing.  Opposite party has not adduced any evidence to prove that the defective phone is a brand new one.  In our view act of opposite party amounts to deficiency in service.  So point no.1 is found accordingly.
Point No.2
In view of the findings in point No.1 petition is allowed.
In the result following order is passed.
i) Opposite party is ordered to refund Rs.4800/- to the petitioner, on receipt of the amount petitioner shall surrender the defective phone to the opposite party
ii) Opposite party is ordered to pay Rs.1000/- as compensation to the petitioner.
iii) Opposite party is directed to pay the petitioner an amount of Rs.750/- as litigation cost.

Order shall be complied with within one month of receipt of the copy of the order.  If not complied as directed petitioner is entitled for 9% interest from the date of petition till realization.
Sri. Bose Augustine, President Sd/-
Sri. K.N. Radhakrishnan, Member Sd/-

Appenndix
Documents of the petitioner.
Ext.A1-is the retail invoice/cash memo
Ext.A2-is the copy of complaint dtd 21-7-11
Ext.A3-is the work order dtd 1-8-11
Ext.A4-is the photocopy of warranty certificate
Ext.A5-is the work order dtd 29-9-11
Documents of the opposite party
Nil

By Order.

Senior Superintendent.