Date of Filling     : 01.04.2015.

                                                                                         Date of Disposal :  10.03.2016.

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR - 1.

PRESENT: THIRU. S.  PANDIAN, B.Sc., L.L.M.,            …    PRESIDENT

                 TMT. S.  SUJATHA,B.Sc.,                            …    MEMBER - I

C.C. No.27/2015

(Thursday the 10^th March 2016)

K. Thyagarajan,

S/o. Mr. B. Kothandaraman,

Plot No.63, Door No.5, Annamalai Nagar,

Avadi,

Chennai - 600 054.                                                                      … Complainant.

                                                          / Versus /

1. The General Manager,

    M/s. Lava International Ltd.,

    A-56, Sector 64,

    Noida,

    Uttar Pradesh - 201 301.

2. The General Manager,

    M/s. Sangeetha Mobiles Pvt. Ltd.,

    Shop No.1, Plot No.24, Flohim Complex,

    H.V.F Road,

    Avadi,

    Chennai - 600 053.

3. The Manager / Proprietor,

    M/s. Global Communications,

    No.459/465, Priyanka Complex,

    Old M.T.H. Road, (Bazaar Road),

    Varadharajapuram,

    Ambattur,

    Chennai - 600 053.                                                             … Opposite parties.         

This complaint is coming upon before us finally on 23.02.2016 in the presence of M/s. S. Venkatathiri, Counsel for the complainant and M/s. R. Vijayaraj Naren, Counsel for the 1^st opposite party set Ex-parte for not filing of written version, M/s. P. Damodaran, Counsel for the 2^nd  opposite party initially appeared and after filing of the written version, set Ex-parte for non - appearance & the 3^rd  opposite party set Ex-parte, since called absent and for non appearance and having  perused the documents and evidences and written arguments of the complainant side, this Forum delivered the following,

                                                ORDER

PRONOUNCED BY THIRU. S.  PANDIAN, PRESIDENT

          This complaint is filed by the complainant U/S 12 of Consumer Protection Act, 1986 against the opposite parties seeking direction to refund the price of the mobile phone for the sum of Rs.8675.71 (incl. VAT), to pay compensation of Rs.50,000/- for mental agony and deficiency of service and to pay Rs.10,000/- towards cost.

1. The brief averments of the complaint are as follows:-

The complainant purchased a new mobile phone for Rs.8,675.71 under Invoice No.SI/AVA/3042 dated 21.10.2014 (including Vat 14.5%) of Lava Brand, Model Name Iris X5, Model colour white, IMEI NO.911397351411671 with dual sim options (with manufacturers’ warranty for 1 year and the dealer also has given an additional 1 year extended warranty, which is mentioned in the invoice copy of the Dealer) from the2^nd  opposite party M/s. Sangeetha Mobiles Pvt. Ltd., H.V.F., Road, Avadi on 21.10.2014.The said mobile has manufacturing and technical defect (Mobile phone on/off problem found within a few days).Therefore, immediately the complainant contacted the 2^nd opposite party / Dealer and at that time they instructed the complainant to approach the manufacturer’s authorized service center, 3^rd opposite party M/s. Global Communications located at Ambattur, Chennai.Then the complainant approached the above named service center, and they received his mobile phone against their 1^st work order No.510002573106 for servicing the mobile.

5.         The contention of the written version of the 2^nd  opposite party is as  briefly as follows:-

The complaint filed is vexatious, baseless and is more of an abuse of the process of law.  The mobile phones of the 1^st opposite party are sold to the valuable customers through a network of its authorized dealers and after sales services on those mobile phones are provided through a network of 1^st opposite partys authorized service centers across the country.  The complainant mobile worked perfectly from his date of purchase 21.10.2014 to till his complaint to 3^rd opposite party i.e. service center at various dates as mentioned in his complaint that means the handset  worked, the complainant’s mobile worked perfectly by his own admission.

6.         When the complainant faced his mobile problem approached the 2^nd opposite party, he himself has stated clearly in his complaint that the 2^nd  opposite party, i.e. Sangeetha Mobiles advised him to approach the Authorized service center by providing the 3^rd opposite party contact numbers and authorized service center address for his mobile problems.  That partly the complainant’s complaint is true.  It is further submitted that the complainant finds faults only with the 1^st & 3^rd opposite parties aggrieved by their in action added the 2^nd opposite party as a party to this case and not find faults with the 2^nd opposite party and moreover there is no deficiency of service by the 2^nd opposite party.

7.         Mobiles are manufactured in different models to suit the consumer taste and requirement.  Warranty, whatsoever provided by the manufacturer alone and not by the 2^nd opposite party i.e. Sangeetha Mobile, clearly mentioned in the invoice under terms and conditions.  The warranty whatsoever provided is by the Manufacturer of the mobile and not by the 2^nd opposite party i.e. Sangeetha Mobile.  For after sales, service if any in mobile the complainant has to contact only the concerned authorized service center.  The complainant has not followed the instructions carefully of the operative manual which is enclosed with the handset at the time of purchase.   The complainant has failed to annex any report of an  independent expert as defined under section2(1)(a) of the Consumer Protection Act, 1986 with regard to any alleged defect in the handset.  There is no cause of action has arisen to file the instant complaint before this Hon’ble Forum.  Hence, the complaint is liable to be dismissed.

9.         In order to prove the case on the side of the complainant, the proof affidavit submitted for his evidence and Exhibit A1 to A9 were marked. 

10.       At this juncture, the point for consideration before this Forum is:-

1. Whether there is any deficiency of service on the part of the opposite parties as alleged in the complaint?

2. To what other reliefs, the complainant is entitled to?

11.     Written arguments filed on the side of the complainant, in addition to that oral arguments also adduced by the complainant.

 12.       Point  no.1:-

According to the case of the complainant is that he had purchased a new model mobile phone for Rs.8675.71 paise through Ex.A1 from 3^rd opposite party for which the warranty period for 1 year given by the 1^st opposite party and an additional 1 year extended warranty was given by the 2^nd opposite party.  It is further stated by the complainant that the said mobile has manufacturing and technical defect found within a few days and immediately the complainant contacted the 2^nd  opposite party and in turn, instructed the complainant to approach the 3^rd opposite party.  When the complainant approached   the 3^rd opposite party he had issued 1^st work order for the receipt of the said mobile phone for service.  Then after one week the 3^rd opposite party informed the complainant to get back the mobile phone and accordingly it was received by the complainant but again a new problem was found and therefore, the complainant again approached the 3^rd opposite party for service and to that effect Ex.A2, 2^nd work order dated:13.02.2014 was issued and after 22 days it was informed by the 3^rd opposite party that the said mobile was ready.  The complainant approached the 3^rd opposite party and found with the same problem was unsolved and hence, the complainant left the defective mobile the 3^rd opposite party and immediately he approached the 2^nd opposite party for replacement of the defective mobile and  the  same was refused by the 2^nd opposite party.

13.        In such circumstances, without no alternate way to the complainant he again approached the 3^rd opposite party.  The 3^rd opposite party issued the 3^rd work order which is marked as Ex.A3 dated:12.01.2015.  Even thereafter, the defect could not be rectified.   Again the 4^th work order, Ex.A4 dated:28.01.2015 issued by the 3^rd  opposite party with suggestions to the manufacturer to replace a new mobile in lieu of the defective mobile with their remarks as frequent net work problem.  After few weeks later, from the date of the receipt of the Ex.A4, the 3^rd opposite party asked the complainant to receive the replacement mobile.  But the complainant refused to receive the same since the replaced mobile, seemed to be used by somebody and also it is an old one.  Then immediately, the complainant had issued legal notices dated 11.02.2015 to the opposite parties separately which are marked as Ex.A5 to Ex.A7.  The postal receipts are marked as Ex.A8 series.  The letter from the Indian Postal Department for the service of the said notices to the 1 to 3 opposite parties are marked as Ex.A9 series.  It is further seen from the evidence of the complainant, it is crystal clear that even on receipt of the legal notices by the opposite parties, they did not give any reply.  Then the complainant has come forward with this complaint.

14.        At this juncture, it is the duty of this Forum to go through the written version filed by the 2^nd opposite party.  On careful perusal the purchase of mobile phone by the complainant through Ex.A1  is admitted by the 2^nd  opposite party.  At the same time, the 2^nd opposite party contented that the warranty whatsoever provided is only by the manufacturer of the mobile and not by the opposite party and if any default in mobile after sales the complainant has to contact only the authorized the service center.  Therefore, the 2^nd opposite party is no way liable to pay any compensation.  There is no deficiency of service on the part of the 2^nd opposite party.  Moreover, it is stated that the warranty provided by the 1^st opposite party is valid for 1 year from the date of purchase and for arguments sake if any manufacturing defect is found it is a mandatory duty to prove the same through a report of an independent expert as defined under section 2(1) (a)  of the Consumer Protection Act 1986.  But in this case the complainant failed to do so and thereby there is no cause of action has arisen regarding this complaint and therefore it is liable to be dismissed.

15.        At the outset, it is pertinent to say that though the 2^nd opposite party has raised certain contention through written version, the 2^nd opposite party has not come forward to prove the contention by means of filing of affidavit as his evidence and failed to appear to proceed further with and remained Ex-parte.  Though sufficient opportunities  were given to the 1^st & 3^rd opposite parties, remained Ex-parte for non appearance.  From the above attitude of the 1 to 3 opposite parties it goes without saying that there is no contra evidence to disprove the allegations made in the complaint and the same is proved by the complainant through Ex.A1 to Ex.A9.  Mere averments made by the 2^nd opposite party are not at all sufficient to disprove the allegations made in the complaint.

16.        In the light of the above facts and circumstances and observations made above, this Forum has decided without any hesitation, that the deficiency of service is proved on the part of the 1 to 3 opposite parties beyond reasonable doubts through consistent and cogent evidence with merits.  Furthermore, it is crystal clear that the old mobile phone is with the custody of the 3^rd opposite party, who is the authorized service center.   It is not disputed by any of the opposite parties.  Therefore, the 1 to 3 opposite parties are jointly or severally liable to fulfill the demand of the complainant.  Thus point no.1 is answered accordingly.

17.        Point no.2:-

As per the conclusion arrived in point no.1, it goes without saying that the complainant  is entitled for refund of the cost price of the mobile phone of Rs.8,675.71 paise since the purchase of the said mobile phone is well within the warranty period and for reasonable compensation for suffering of mental agony caused by the 1 to 3 opposite parties with cost.  Thus point no.2 is answered.

18.     In the result, this complaint is allowed in part.  Accordingly, the 1 to 3 opposite parties are jointly or severally directed to refund the cost price of Mobile Phone for a sum of Rs.8675.71 paise and to pay a sum of Rs.5,000/- towards compensation for  causing mental agony due to the deficiency of service on the part of the 1 to 3 opposite parties and to pay Rs.3,000/- towards cost of litigation of this complaint totally of Rs.16,675.71 paise (Rupees sixteen thousand six hundred and seventy five and seventy one paise only).

The above amounts shall be payable within one month from the date of receipt of the copy of the order, failing which the said amount shall carry interest at the rate of 9.5% till the date of payment.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Forum on this 10^th March 2016.

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MEMBER - I                                                                                                  PRESIDENT

List of documents filed by the complainant:-

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MEMBER - I                                                                                                  PRESIDENT