THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.
C.C. 109/2015
Dated this the 14th day of March 2018.
(Smt. Rose Jose, B.Sc, LLB. : President)
Smt.Beena Joseph, M.A : Member
Sri. Joseph Mathew, MA, LLB : Member
ORDER
Present: Rose Jose, President:
This petition is filed by the petitioner Under Section 12 of the Consumer Protection Act for an order directing the opposite parties either to replace the defective mobile phone purchased from the 1st opposite party which was manufactured by the 3rd opposite party with a defect free new one or to refund its purchase price of Rs.8000/- with compensation for the difficulties suffered due to the deficiency in service committed by the opposite parties and also cost of the proceedings.
His case is that, on 14.06.2014 he had purchased a mobile phone SONY XPERIA EISSD-2005 from the 1st opposite party’s shop manufactured by the 3rd opposite party for Rs.8000/- The warranty provided to that set was 1 year. After a few months of its use, suddenly the set started overheating and power off. So he took the phone to the 2nd opposite party for inspection and repair and they returned the same saying that it was properly repaired. But within few days of its use, the same complaint repeated and again he took the set to the 2nd opposite party and after repair they returned the set. The petitioner stated that, the complaint and repair process repeated about seven times within a short period and at last he lost his faith in that handset and so he decided not to collect the set from the opposite party. The repeated complaints of the phone proved that it is having some manufacturing defects. So he demanded replacement of the set or refund of its price but the opposite parties was not ready for that. In connection with this, he had approached the opposite parties several times in a month after taking leave from his works. All these caused much mental pain, huge financial loss and such other inconvenience to him. The indifferent attitude of the opposite parties towards his legitimate demand amounts to unfair trade practice and also deficiency in service on their side. Hence this petition.
The opposite parties filed a combined version. They admitted the purchase of the said phone and the fact of 1 year warranty but it is stated that, their liability strictly lies in accordance with the terms and conditions of the warranty and they cannot be held liable for the claims falling outside the scope of the warranty. It is stated that, the petitioner after enjoying the mobile for 4 months brought the set before the 2nd opposite party with the issue of hanging on 13.10.2014. On inspection it is found that the software upgrade of the handset was required to be done. Accordingly it was updated at free of cost and the set was handed over to the petitioner in perfect working conditions. Thereafter the petitioner again approached the 2nd opposite party on 31.10.2014 with the issue of ‘Heating and intermittent power off’. It was discovered that the software upgrade of the set was required to be done. This was updated and the set was collected by the petitioner also. Again on 09.02.2015, the petitioner approached the 2nd opposite party with the complaint of ‘Heating and low battery backup’. This time also it was found that the software upgrade was required to be done and after correcting the same and the set was returned to the petitioner. Subsequently the petitioner again approached the 2nd opposite party with the complaint of ‘Low battery backup’ on 10.02.2015. This time it was found that the main board of the set required to be replaced and so it was duly replaced and the set was returned to the petitioner, on 20.02.2015. But the petitioner after using the phone for 5 hours on the same day itself approached with the issue of ‘No Power. Intermittent charging problem’. On inspection it is found that the main board of the mobile is faulty and so it was duly replaced also. All these repairs are done at free of cost. After repair this was informed to the petitioner but he was not ready to collect the set and instead of demanded replacement or returned of its purchase price, but this was not acceptable to them as it is outside the scope of the warranty conditions.
They further contended that, the petitioner has not produced any expert report in support of his alleged manufacturing defect with the set. Since they have attended the complaint of the petitioner without delay or fault and the fact that the set was repaired perfectly in a good working condition and the fact that, the set is having no manufacturing defect as alleged, no unfair trade practice or deficiency in service can be attributed against them. This petition is false, vexatious and malicious and is filed only with the purpose to earn wrongful gains at their cost. They are not liable to replace the set or to refund its price as demanded by the petitioner. Hence prayed to dismiss the petition with their cost.
The matters to be decided are:-
- Whether there is any deficiency in service or unfair trade practice on the part of the opposite parties?
- Reliefs and costs if any?
Evidence consists of the affidavit filed by the petitioner. Ext.A1 & A2 and depositions of PW1 & PW2.
Point No.1:- According to the petitioner, the mobile phone purchased from the 1st opposite party manufactured by the 3rd opposite party was defective due to overheating and intermittent power off. Though the 2nd opposite party had repaired the set, the same complaints repeated and new complaints emerged and at least 7 times the opposite party had repaired the set within a short period of its purchase. This is only because of its manufacturing defect. So he is demanding replacement or refund of its price. The opposite parties admitted in their version that, the set was repaired by the 2nd opposite party on 13.10.2014, 31.10.2014, 09.02.2015 and 20.02.2015 two times within 5 hours of its use. According to them on all these time they have perfectly repaired the set at free of cost and at present the set is with them properly repaired and in good working condition. The set is having no manufacturing defect but the petitioner was reluctant to collect the same. But the service record of the set as admitted by the opposite parties themselves shows that the same complaint has been repeated many times and new complaints emerged within a short span of its purchase. This shows that new complaints may arise at any times and so in such a situation nobody can blame a person if he is reluctant to accept such a defective phone again.
The opposite parties are having a case that, there is no expert report to substantiate the allegation of manufacturing defect in this case in order to replace the set or to refund its price. It is submitted that the Hon’ble State Commission Kerala has also upheld this view in Sabeena Cycle Emporium Chennakhada Vs Thajes Ravi M.R.Pancha Villa Vedar Ezkhone PO(1992)1 CPJ-97.
But here the mobile was purchased on 14.06.2014. The 1st complaint reported was on 13.10.2014 ie, only 4 months after its purchase. According to the opposite parties themselves the last complaint reported was on 10.02.2015. After rectifying the complaint the set was returned on 20.02.2015, but on the same day itself the petitioner approached them with complaint after using the phone only 5 hours within a short period, the set was repaired 5 times for different complaints. This shows that the defects are not curable permanently and this was due to some manufacturing defects. So we are of the considered view that, for coming to a conclusion that the set is having manufacturing defect no expert report is necessary in this case. The petitioner was examined as PW1 but nothing was brought out from him in favour of the opposite parties. Sri.M.Rajendran a friend of the petitioner was also examined as PW2. He also deposed that he knows the facts of the case and what had stated by the petitioner is true and correct.
So considering the facts stated and evidence on record it is found that, the said mobile phone is having manufacturing defect and so the opposite parties are bound to replace the set or to refund the purchase price to the petitioner and the indifferent attitude of the opposite parties. In this regard amounts to deficiency in service on their side. Point No.1 found accordingly,
Point No.2:- In view of the finding in Point No.1 this petition is to be allowed and the petitioner is entitled to get the reliefs sought for in the petition.
In the result the following order is passed.
The opposite parties are jointly and severally ordered to refund the invoice price of Rs.8,000/- and Rs.3,000/- as compensation for the difficulties suffered by him and Rs.1000/- as cost of the proceeding to the petition within 30 days of receipt of this order failing which the whole amount will carry 12% interest per annum from the date of default till payment.
Dated this 14th day of March 2018.
Date of filing: 27.02.2015.
SD/-MEMBER SD/- PRESIDENT SD/-MEMBER
APPENDIX
Documents exhibited for the complainant:
A1.Retail invoice bill issued by the opposite party for Rs.8000/-
dtd.14.06.14.
A2. Service Job sheet dtd.20.02.2015
Documents exhibited for the opposite party:
Nil
Witness examined for the complainant:
PW1. Muhammed Asharaf (complainant)
PW2. M.Rajendran (Friend of complainant)
Witness examined for the opposite party:
None
Sd/-President
//True copy//
(Forwarded/By Order)
SENIOR SUPERINTENDENT
