THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.
C.C.166/2016
Dated this the 16th day of January, 2019
(Smt. Rose Jose, B.Sc, LLB. : President)
Sri. Joseph Mathew, M.A., L.L.B. : Member
ORDER
Present: Hon’ble Rose Jose, President:
This petition is filed by the petitioner under Section 12 of Consumer Protection Act, 1986 for an order directing the opposite parties to rectify the complaint of the mobile phone purchased from them at free of cost or to replace the handset or refund its purchase price and to pay compensation for his sufferings and also cost of the proceedings.
Petitioner’s case is that, on 16/04/2015 he had purchased a Panasonic Eluga I mobile phone from the 1st opposite party shop for Rs.9,200/-. The set is having one year warranty also. But on the month of February 2016, the handset developed complaints and stopped functioning. Since the complaint started within the warranty period he took the set to the 1st opposite party and made complaint before them. The 1st opposite party told him that they are only the dealer directed him to entrust the set to the 2nd opposite party, the authorized service centre of the manufacturer. As such he took the set to the 2nd opposite party and after inspection they told him that it cost Rs.300/- for rectification of the complaint and they had given a bill for the said amount also.
The petitioner further stated that thereafter the 2nd opposite party informed him over phone that he has to pay Rs.4,000/- for rectifying the complaints. According to the petitioner since the complaint started within the warranty period, the opposite parties are bound to rectify the defect at free of cost and if repairs is not possible to replace the handset or to refund its purchase price under the warranty terms. But even after repeated requests the opposite parties are not ready for any of his demands. As he was unable to bear the huge amount of Rs.4,000/- for the repairs, he has not take back the mobile from the 2nd opposite party and the set is with the 2nd opposite party now. The denial of his legitimate demand amounts to unfair trade practice and also deficiency in service on the part of the opposite parties and that caused huge financial loss, mental agony and such other hardships to him. Hence this petition seeking reliefs.
The 1st opposite party in their version admitted the purchase of the said mobile by the petitioner but they denied his allegation that he had approached them with the complaint of the handset in the month of February 2016 and they directed him to entrust the set with the 2nd opposite party as not true or correct. It is stated that the petitioner had never approached them with any complaint after purchase of the handset. They further stated that the petitioner might have approached the 2nd opposite party directly with the complaint and the transactions between him and the 2nd opposite party was not known to them. It is also stated that they are selling mobile handsets of multi branded companies like Nokia, Samsung, Sony etc. and petitioner had purchased the particular brand and model of handset at his own will and wish. Moreover the petitioner had no case that the mobile is having any manufacturing defect or any allegation against them in his petition and so they are an unnecessary party in this petition. They have always taken very much care and caution while dealing with the customers. There is no unfair trade practice or any deficiency in service on their part as alleged and so they are not liable to pay the cost of the handset or any compensation to the petitioner. Hence prayed to dismiss the petition with their cost.
The 2nd opposite party received the notice issued from this Forum but they didn’t appear or filed version. Hence the 2nd opposite party set ex-parte.
Evidence consists of the affidavits filed by the petitioner, the 1st opposite party and Ext. A1 and A2. Ext. A1 is the copy of invoice for the purchase of the mobile phone dated 16/04/2015 for Rs.9,200/- and Ext. A2 is the copy of the job sheet issued by the 2nd opposite party to the petitioner dated 04/02/2016.
According to the petitioner since the handset developed complaint during the warranty period, the opposite parties are bound to repair the complaints at free of cost and if repairs is not possible, to replace the set or to refund its purchase price. But the 2nd opposite party demanded Rs.4,000/- for rectifying the defects and this amounts to unfair trade practice and also deficiency in service on the part of the opposite parties. But in Ext. A2 the problem reported is “dead, water damage”. This shows that the complaint developed in the handset is due to water entry ie. due to physical damage. Physical damages like water entry will not come under the coverage of warranty and is excluded from the coverage even if the set is within the warranty period. The opposite parties are not liable to repair the set free of cost or to replace the set or to refund its purchase price if the complaint is due to physical damage even within the warranty period. So it is for the petitioner to prove otherwise, for which an expert report is very much essential. But here the petitioner has not taken any steps to obtain an expert report in this regard. If only the expert is reporting that the defect was not because of any physical damage, the Fora can order free of cost repair or replacement or refund of purchase price as prayed for by the petitioner. In the absence of any evidence to see that the alleged complaints was not because of any physical damage, we cannot attribute any unfair trade practice or any deficiency in service on the opposite parties or to order them free of cost repair or replacement of the handset or refund of purchase price as prayed for by the petitioner.
In the result, this petition is dismissed. Parties will bear their cost.
Dated this the 16th day of January, 2019
Date of filing: 08/04/2016
SD/-PRESIDENT SD/-MEMBER
APPENDIX
Documents exhibited for the complainant:
A1. Copy of invoice dated 16/04/2015
A2. Copy of Job sheet dated 04/02/2016
Documents exhibited for the opposite party:
Nil
Witness examined for the complainant:
None
Witness examined for the opposite party:
None
Sd/-President
//True copy//
(Forwarded/By Order)
SENIOR SUPERINTENDENT
