This C.C. came before us for hearing in the presence of Sri Syed Hussain, Advocate for complainant and of Smt. P. Sandhya Rani, Advocate for opposite party No.3; opposite parties No.1 & 2 appeared in person; upon perusing the material papers on record; upon hearing arguments and having stood over for consideration, this Forum passed the following:-
ORDER
(Per Smt.V.Vijaya Rekha, Member)
This complaint is filed under section 12(1) of the Consumer Protection Act, 1986. The brief facts as mentioned in the complaint are that the complainant had purchased HTC Smart Mobile Phone vide model No.F3188 from the opposite party no.1 on 13-12-2010 for Rs.9,500/-, the opposite party No.2 is the administrative office to the opposite party No.1 and on the same day, the complainant had obtained an insurance policy on his cell phone from the opposite party No.3, who is the insurer. The complainant further submitted that after two months from the date of purchase, the mobile phone started giving troubles in the operating system such as incoming and outgoing problems, immediately it was informed to the opposite party No.1. The technician of opposite party No.1 noticed that there is some problem in the main board and also having other problems and advised to surrender the mobile phone with them for 10days for rectification of defects, therefore, the complainant kept the mobile phone in the service center of opposite party No.1. The technician of opposite party No.1 repaired temporarily, after some days, the same problem was arisen, again, the complainant approached opposite party No.1 and kept the handset with them. The opposite party No.1 issued a job card dt.19-04-2011. After 15days, the hand set was returned to the complainant without any rectification, upon which, the complainant demanded the opposite party No.1 either to rectify the defect or replace the defective piece with new one but the authorities of opposite party No.1 warned the complainant not to visit the opposite party No.1 once again for the same problem, due to the irresponsible attitude of opposite party No.1, the complainant called the opposite party No.2 on phone, even though, there is no proper response. Finally, on 02-05-2011 the complainant approached the opposite party No.1 on her grievance. Upon which, the opposite party No.1 kept the handset with them and advised to come after 15 days, instead of handed over the mobile phone, the opposite party No.1 postponed the matter on different reasons. Even after many rounds, the opposite party No.1 neither return the handset in good condition nor replacing the same with new one, due to which, the complainant suffered a lot and averred that there is deficiency of service on the part of opposite parties No.1 & 2 and prayed to direct the opposite party No.1 to 3, to replace the HTC Smart Mobile Phone model No.F3188, with new one or to pay the amount of Rs.9,500/- and Rs. 50,000/- towards damages and costs.
2. Along with the complaint, the complainant filed her affidavit and also filed the following documents, those were marked as Exhibits.
Ex.A1:- Bill dt.13-12-2010 for Rs.9,500/- .
Ex.A2:- Safety and regulatory guide.
Ex.A3:- Certificate of Mobile Phone Insurance, dt.13-12-2010.
Ex.A4:- Job worksheet dt.19-04-2011.
Ex.A5:- Warranty Statement.
Ex.A6:- Office copy of legal notice, dt.06-08-2011 with acknowledgements (Nos.3) and postal receipts (Nos.3).
3. On receipt of notice, the opposite parties No.1 & 2 appeared in person and the opposite party No.1 filed counter. The opposite party No.3 is appeared through its counsel and filed counter.
4. In the counter, the opposite parties No.1 denied all the averments of the complaint by submitting that the complainant had not made the manufacturer as a party to the proceedings, the non-joinder of necessary party is bad in law, the opposite party No.1 is the retail mobile dealer, selling the products according to the terms and conditions of the manufacturer. As per the terms and conditions, as mentioned in the booklet, the complainant can approach the manufacturer for rectification of any defects and also submitted that when the complainant approached the opposite party No.1, it had attended the mobile and rectified the defects. The opposite party No.1 further submitted that after using the mobile phone according to the satisfaction of the complainant, now the complainant wants to claim a new mobile phone. Therefore there is no deficiency of service on its part and prayed to dismiss the complaint with exemplary costs.
5. The opposite parties No.1 & 2 filed separate affidavits by reiterating the same averments as mentioned in the counter and submitted that the problems in the mobile phone, might have been arisen due to falling on the floor or subject to a sudden shock and as such it requires proper analysis by an expert to find out whether there is any manufacturing defect or not? Otherwise, the problem, might have been caused due to the negligent act of the complainant, if there is any negligent act on the part of the complainant, the opposite party No.1 cannot held liable for manufacturing defect and as such prayed to dismiss the complaint with costs.
6. During the course of proceedings, the opposite parties No.1 & 2 filed a memo on 22-05-2013 by stating that the mobile of the complainant was repaired free of cost, even after receipt of said information, the complainant is not coming forward to collect the mobile phone, which is in proper condition and as such prayed to direct the complainant to collect the mobile phone.
7. In the counter, the opposite party No.3 submitted that the manufacturing defect is not covered under the policy as it comes under the exclusion clauses of the policy, therefore, the opposite party No.3 is not liable to pay any amounts under the policy and as such there is no deficiency of service and prayed to dismiss the complaint.
8. In view of the above submissions, now the point that arose for consideration is,
Whether the complainant is entitled to the relief
as prayed for?
Point:-
According to the above facts and circumstances and the material on record, it is a fact that the complainant had purchased the HTC Smart Mobile Phone vide model No.F3188 from the opposite party no.1 on 13-12-2010 for Rs.9,500/- first two months, the mobile phone worked properly and after that started giving problems in the operating system such as incoming and outgoing problems, upon complaint, given by the complainant, the opposite party No.1 rectified the problem temporarily, again the same problem was arisen within few days even after rectification of defects and as such the complainant requested the opposite party No.1 to rectify the problem permanently. The opposite party No.1 kept the mobile phone with them and issued the job card dt.19-04-2011 but failed to rectify the defects within 15days, as assured. Finally, on 02-05-2011, the complainant surrendered the cell phone to the opposite party No.1 on the same problem. Even after making many requests and repeated rounds they failed to return the mobile phone till the date of complaint. On the other hand, the opposite parties No.1 & 2 denied their liability to replace the mobile phone with new one and stated that they had given proper services to the complainant, therefore, there is no deficiency of service on their part and prayed to dismiss the complaint. To prove her averments, the complainant placed Exs.A1 to A6, Ex. A4 is the job card dt.19-04-2011, as per Ex.A4, when the mobile phone was operating, it was turned into head phone mode, wherein, it was clearly mentioned in the complaint column as “head phone mode”, except that, there is no mentioning of any problem, but according to the legal notice, which was marked under Ex.A6, the mobile phone started giving troubles in the operating system while connecting the incoming and outgoing calls, to prove her allegation, the complainant could not filed any document except Ex.A4. Without furnishing of sufficient documents and non-joinder of manufacturer as a necessary party, the complainant filed the present complaint, by alleging that the defects of the mobile phone, which is not sustainable as there is no material on record in this respect, basing on the mere averments, we cannot come to a conclusion and we could not ascertain the defects without any expert opinion in this regard. With regard to the non-rectification of defects and non returning of cell phone is concerned, the opposite party No.1, who sold the cell phone of Taiwan Company, neither rectified the defects nor returned the mobile phone to the complainant till the date of complaint even after making many rounds, due to which, the complainant suffered a lot and alleges that the deficiency of service on the part of the opposite party No.1. In support of her averments, the complainant placed Ex.A5, which is the warrantee card, having a period of one year warrantee from the date of purchase. During the course of proceedings before this Forum, the Manager of opposite party No.1 present in person and filed the counter on 04-09-2012, i.e. after lapse of 11 months from the date of receipt of notice from this Forum, but failed to return the mobile phone, which was kept with them since 02-05-2011 and they could not turn up to file their counter even after receipt of notice. Moreover, they denied their liability to rectify the defects in their counter by stating that the opposite party No.1 is only a retailer to sell the mobile phones to the customers. After that, on 18-10-2012 i.e. after one and half year from the date of surrendering the cell phone, the opposite party No.1 filed a memo by stating that they are ready to return the mobile phone after rectification. But according to the averments of complaint, the complainant suffered a lot due to the non-rectification of the defects and non-rendering of proper services till the date of complaint, is nothing but of deficiency of service on the part of opposite parties No.1 & 2. Therefore, the opposite parties No.1 & 2 are liable to compensate the complainant for non-providing the proper services to its consumers despite making many rounds to them and as such this Forum opined that the opposite parties No.1 & 2 are directed to pay Rs.2,000/- towards damages for causing inconvenience to the complainant by holding that the opposite parties No.1 & 2 are directed to return the HTC Smart Mobile Phone vide model No.F3188 to the complainant after rectification of defects. The complaint against the opposite party No.3 is rejected as there is no liability on the part of the insurer as per the terms and conditions of the policy.
9. In the result, the complaint is allowed in part, directing the opposite parties No.1 & 2 to return the HTC Smart Mobile Phone vide model No.F3188 after rectification of defects to the complainant and to pay Rs.2000/- towards damages and Rs.1000/- towards costs immediately after receipt of this order.
Typed to my dictation, corrected by me and pronounced by us, in this Forum on this 24th day of July, 2013.
FAC President Member
District Consumer Forum, Khammam
APPENDIX OF EVIDENCE
Witnesses examined for complainant and opposite parties: -None-
Exhibits marked for complainant:-
Ex.A1:- Bill dt.13-12-2010 for Rs.9,500/- .
Ex.A2:- Safety and regulatory guide.
Ex.A3:- Certificate of Mobile Phone Insurance, dt.13-12-2010.
Ex.A4:- Job worksheet dt.19-04-2011.
Ex.A5:- Warranty Statement.
Ex.A6:- Office copy of legal notice, dt.06-08-2011 with acknowledgements (Nos.3) and postal receipts (Nos.3).
Exhibits marked for opposite parties:- - Nil -
FAC President Member
District Consumer Forum, Khammam.
