Date of Filling : 12.04.2016.
Date of Disposal : 03.03.2017.
DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR - 1.
PRESENT: THIRU. S. PANDIAN, B.Sc., L.L.M., … PRESIDENT
TMT. S. SUJATHA, B.Sc., … MEMBER - I
Consumer Complaint no.18/2016
(Dated this Friday the 03rd day of March 2017)
Mr. J. Pratheep,
S/o. Mr. P. Jayakumar,
No.55/2, 1st Street,
Lakshmi Nagar,
Thiruninravoor,
Chennai - 602 024. … Complainant.
/ Versus /
1. M/s. Speedy Marketing,
Ground Floor 6 Prabhat Kiran,
17 Rajendra Place,
New Delhi - 110 008.
2. M/s. Bhandari’s Nokia Care,
No.375, T.I. Cycles Road,
Varadharajapuram,
Ambattur,
Chennai - 600 053. … Opposite parties.
This complaint is coming upon before us finally on 17.02.2017 in the presence of M/s. G.A. Thiyagarajan, Counsel for the Complainant, the claim against the 1st opposite party has been withdrawn by the complainant and 2nd opposite party is set Exparte for non appearance and upon hearing arguments, having perused the documents and evidences of the Complainant, 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 1 and 2nd opposite parties for seeking compensation for a sum of Rs.1,00,000/- towards mental agony caused due their defective service, to replace the complainant’s mobile phone or to change the defective parts at free of cost as per the warranty terms or to return the cost price of the said mobile phone with cost.
2. The brief averments of the complaint as follows:-
On 03.05.2015, the complainant had purchased “Microsoft Lumia 535 Model (Dual sim bright orange) phone from the 1st opposite party Rs.7,620/-. The said mobile phone is a product of the 2nd opposite party and it was covered under one year replacement warranty. The IMEI nos. are 359730069328689 & 359730069328697.
3. During November 2015, it developed a technical problem in the said mobile called “Liquid lock display damage”. As the mobile was covered by one year warranty, the complainant immediately contacted the 2nd opposite party and in turn the 2nd opposite party instructed the complainant to handover the mobile at the office and to wait for 10 days for getting it rectified. Accordingly, on 14.11.2015, the complainant handed over the mobile to the 2nd opposite party for getting it repaired.
4. Subsequently, contrary to the warranty coverage, the 2nd opposite party called the complainant over phone and informed him to get the mobile phone repaired and should pay Rs.3,000/- as service charges. The complainant protested the demand as it is contrary to the warranty. When the 2nd opposite party insisted that the mobile would be rectified only if the complainant pays the said sum but the complainant constrained to take back the mobile without getting repaired. While returning the mobile, the 2nd opposite party took back the service request receipt from the complainant and also refused to give a copy of it to the complainant.
5. Further, the complainant shocked after taking back the mobile from the 2nd opposite party that the mobile had full of foreign datas which were no way connected to the complainant. On verification, it was found that the mobile had been reinstalled/ modified with the following two new IMEI nos. viz. 357791063037587 and 357791063037595. Immediately the complainant contacted the 2nd opposite party but he gave an irresponsible reply that such kind of modifications are very usual in the service centres and therefore, the complainant no need to worry. However, the complainant was able to get the details of the original owner of the said new IMEI numbers.
6. Then, he contacted the original owner of the said new IMEI numbers and was shocked to understand that the said person had given his mobile to the 2nd opposite party for service, the 2nd opposite party had either intentionally or inadvertently had installed some other IMEI numbers to the said person. The complainant repeatedly requested the 2nd opposite party to replace the original IMEI numbers but the 2nd opposite party did not respond him. Consequently, the complainant was compelled to use the said new IMEI numbers in his phone.
7. The said mobile phone is covered by one year replacement warrant and the technical defect developed in the mobile phone is a manufacturing defect and is fully covered by the replacement warranty. Therefore, the opposite parties are bound to replace the defect at free of cost. But due to the illegal modification of the IMEI numbers, the complainant’s privacy has been exposed to unnecessary problems. The entire responsibility for all the confusions, illegalities and the violations both present and in future is of the complainant and therefore apart from re-installing original IMEI number to the complainant’s mobile, the 2nd opposite party is also responsible to compensate him for the violations on his privacy and also the consequential mental agony suffered by the complainant. Since there was no proper response from the 2nd opposite party, the complainant sent a notice dated:20.01.2016 to the opposite parties but they neither chosen to comply nor respond. Hence, the complainant is constrained to file this complaint.
8. While this complaint is pending for the evidence on the side of the complainant, the complainant has come forward to file a Memo by stating that the 1st opposite party had issued a Demand Draft dated:26.07.2016, D.D. No.443929 drawn on 18.08.2016, in Axis Bank and the same has been encashed by the complainant and hence withdraws the claim against the 1st opposite party on 27.09.2016 and the same has been recorded.
9. In order to prove the case, the complainant has filed the proof affidavit as his evidence and documents from Ex.A1 to Ex.A5 are marked on his side.
10. At this juncture, the point for consideration before this Forum is:-
- Whether there is any deficiency of service on the part of the 2nd opposite party as alleged in the complaint?
2. To what other reliefs, the complainant is entitled to?
11. Written arguments filed and also oral arguments adduced on the side of the complainant. Though the 2nd opposite party was remained Exparte, this Forum wants to dispose the case fully on merits.
12. Point no.1:-
It is learnt from the evidence of the complainant, that he had purchased a Microsoft Lumia 535 Model (Dual sim bright orange) phone from the 1st opposite party for Rs.7,620/- which was covered under 1 year replacement warranty through the invoice, Ex.A1 and the IMEI Nos.359730069328689 and 359730069328697. On further perusal, it is seen during November 2015, it developed a technical problem in the said mobile called Liquid lock display damage and therefore, as per the instruction of the 2nd opposite party the complainant handed over the mobile to the 2nd opposite party to get it repaired on 14.11.2015. But the 2nd opposite party, contrary to the warranty terms informed the complainant to pay a sum of Rs.3,000/- as service charges and the same was protested by him.
13. When the 2nd opposite party insisted for the charges, the complainant was constrained to take back the mobile without getting it repaired and on verification, it was found that the mobile had been reinstalled with the following two new IMEI numbers viz. 357791063037587, 357791063037595 and immediately, he contacted the 2nd opposite party and the 2nd opposite party replied that such kind of modifications are very usual in the service centres and therefore, the complainant need not worry. Thereafter, the complainant contacted the original owner of the said new IMEI numbers and was shocked to understand that the said person had given his mobile to the 2nd opposite party for service. It is further stated that in spite of repeated requests made by the complainant to the opposite party to replace the original IMEI numbers with the 2nd opposite party, he has not responded him and therefore, the complainant issued Ex.A2, legal notice dated:20.01.2016 to the opposite parties and on receipt of the same by the 1 & 2nd opposite parties Ex.A3, acknowledgement cards has been marked .but the opposite parties have neither replied nor rectified the defects. Then again, the complainant has issued Ex.A4, legal notice dated:15.07.2016 to the 1st opposite party and the 1st opposite party sent Ex.A5, reply dated:26.07.2016, in which he had complied to the demands of the complainant and sent a DD for Rs.9,692/-.
14. From the foregoing evidence and the documents adduced on the side of the complainant, it is crystal clear that the 2nd opposite party has reinstalled / modified the original IMEI numbers to some other IMEI numbers in the alleged complainant’s mobile phone after getting it repaired from him. And inspite of repeated requests and demands, the 2nd opposite party had failed to rectify the defects or to replace the mobile or to restore the original IMEI nos. in the alleged phone of the complainant. Such act of the 2nd opposite party clearly amounts for deficiency of service. If it is so, the burden naturally shifted over to the 2nd opposite party to disprove the same. But the 2nd opposite party has failed to appear before this Forum and to defend the allegations made in the complaint. Therefore, this Forum can easily be drawn an adverse inference against the 2nd opposite party since, there is no contra evidence to the evidence of the complainant placed before this Forum. Thus, the deficiency of service alleged against the 2nd opposite party has been clearly proved and thereby, the point no.1 is answered accordingly.
15. Point no.2:-
Initially, this complaint has been filed against both the 1 & 2nd opposite parties for deficiency of service committed by them. While the said complaint was pending at the stage of adducing evidence on the side of the complainant, the complainant himself come forward to file a Memo by stating that the 1st opposite party is admitting his lapses and paid a sum of Rs.9,692/- towards the defective mobile phone by means of a Demand Draft bearing no.443929 drawn on 18.08.2016 and the sum has been encashed by the complainant and therefore, the complainant withdraws the claim against the 1st opposite party and the same was recorded on 27.09.2016 by this Forum. So, the relief sought by the complainant against the 1st opposite party has already been fulfilled. Hence, the further proceedings against the 1st opposite party has been dropped. At this instance, in respect of the 2nd opposite party as per the conclusion arrived in point no.1, the complainant is entitled for reasonable compensation for causing mental agony and hardship by the act of reinstallation / modification of the original IMEI nos. to some other new numbers and for refusing to restore the same and in consequence certainly the privacy of the complainant has been affected and also for the cost of proceedings. Thus, the point no.2 is answered accordingly.
In the result, this complaint is allowed in part. Accordingly, the 2nd opposite party is directed to pay compensation for a sum of Rs.5,000/- (Rupees five thousand only) to the complainant with cost Rs.2,000/- (Rupees two thousand only) totally of Rs.7,000/- (Rupees seven thousand only).
The above amount 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% p.a. till the date of payment.
Dictated by the President to the Steno-Typist, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this 03rd March 2017.
Sd/-**** Sd/-****
MEMBER - I PRESIDENT
List of documents filed by the complainant:-
Ex.A1 | 03.05.2015 | Tax Invoice | Xerox copy |
Ex.A2 | 20.01.2016 | Legal notice issued by the complainant’s Counsel to the 1 & 2nd opposite parties | Xerox copy |
Ex.A3 Series | 02.02.2016 | Acknowledgement card for the receipt of legal notice by the 1 & 2nd opposite parties | Xerox copy |
Ex.A4 | 15.07.2016 | Legal notice issued by the complainant’s Counsel to the 1st opposite party | Xerox copy |
Ex.A5 | 26.07.2016 | Reply of the 1st opposite party for compliance | Xerox copy |
Sd/-**** Sd/-****
MEMBER - I PRESIDENT
