DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-I, LUCKNOW

CASE No.450 of 2008

       Mr. Manish Sharma, aged about 29 yrs.,

       S/o Sri Suraj Kumar Sharma,

        R/o K-643-C, Ashiana Colony, 

        Lucknow.

                                                                   ……Complainant

Versus

                 1. M/s B.K. & Co. Leela Mansion,

                    B.H., Leela Cinema, N.K. Road,

                     Hazratganj, Lucknow. 

                2. M/s Nokia India Pvt. Ltd. (Nokia Telecom Sez),

                    SIPCOT Industrial Park, Phase III-A-1,

                    Sriperumbudar, Tamil Nadu-602105.

                    Through its Managing Director.              

                                                                              .......Opp. Parties

Present:-

Sri Vijai Varma, President.

Smt. Anju Awasthy, Member.

JUDGMENT

This complaint has been filed by the Complainant against the OPs for directing the OPs to repair defect of restart/reboot in the said mobile set without taking any charges and to remove all the defects in the mobile set and for payment of cost of another set of Rs.1,400.00, compensation of Rs.50,000.00 and cost of the proceedings of Rs.3,000.00.

          The case in brief of the Complainant is that the real uncle of Complainant gifted a mobile set CDMA of Reliance Co. who is a mobile telephone services provider manufactured by OP No.2 to the Complainant. The warranty/guaranty period of the above said mobile set has expired. In the month of February, 2008 the cover of the mobile set was damaged so the Complainant contacted the OP No.1 who is agent of OP No.2 for providing after sales service. On 27.02.2008 the above said

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mobile set was handed over to OP No.1 for changing the cover of mobile set who in return gave a job sheet. On 27.02.2008 it was informed to the Complainant that the cover of set will be changed in half an hour and asked Complainant to pay a sum of Rs.1,785.00. But after half an hour when Complainant went to take back the set, he was astonished to note that the mobile set was not operative as whenever its button for making it functional, was pressed immediately it used to get switched off which was immediately informed to OP No.1 but OP No.1 did not give any importance to it and asked Complainant to deposit further Rs.5,000.00 immediately to remove the defect. It was also informed to the Complainant that the set was to be sent to Delhi for getting it repaired. But the Complainant refused to deposit the set with OP No.1 as it contained the details of phone numbers of different persons and other personal details of the messages. The persons of OP No.1 present on 27.02.2008 misbehaved with the Complainant and with great difficulty endorsed on job sheet that restart/report problem recurred in mobile set during the time of repairing. The Complainant cannot be held liable for making payment for none of his faults. As the OP No.1 demanded Rs.5,000.00 for removing the restart/reboot problem, the Complainant took back the mobile set without getting changed the cover of mobile set. The Complainant wrote a letter to OP No.1 and also to Reliance Co. through email who in return asked the Complainant to deposit the set in Nokia care centres at Lucknow. But wherever Complainant went in other Nokia Care Centres the Complainant has been asked to deposit the set and for making the payment of Rs.5,000.00 and further to pay Rs.1,785.00 for changing the cover of mobile set. When mobile set of Complainant was not repaired by OPs then Complainant purchased another mobile set of Rs.1,400.00. The Complainant is ready to pay Rs.1,785.00 for getting changed the cover but not ready to pay Rs.5,000.00 for getting removed

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the restart/reboot problem and OP No.1 has asked the Complainant to deposit the service charges, hence this complaint.

          The OP No.1 has filed the WS wherein it is mainly submitted that on 27.02.2008 the Complainant came to the service centre and requested to change the cover of the mobile in question which was physically damaged. As the cover of the mobile was badly damaged it was not possible to check the functions of the set nor it was requested by the Complainant. The Complainant requested to change the cover only and as such the answering OP without checking the functions of the mobile set gave an estimate of Rs.1,785.00 for changing its cover only and when the Complainant agreed the answering OP issued a job sheet and returned the battery of the mobile to the Complainant and requested him to wait some time and thereafter the answering OP changed the cover of the mobile in question in the presence of the Complainant and handed over the same to the Complainant. The Complainant after taking the mobile told the answering OP that the mobile set was not in order and requested to check the same. Then on the request of the Complainant the answering OP thoroughly checked the mobile in question and informed the Complainant that the repairing of mobile set was not possible at Lucknow Service Centre and it will be sent for repairing to Service Centre at Delhi against the repairing charges of Rs.5,000.00. Upon this the Complainant told that when the mobile set was not in order then there was no meaning in changing the cover of the same and the Complainant took back the mobile in question without getting the cover changed. The Complainant with malafide intention and ulterior motive illegally forced the answering OP to endorse on the job sheet to mention that handset became restart/reboot during the repairing. The answering OP or their men never misbehaved nor created any difficulty in issuing job

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sheet with the Complainant. The mobile in question was out of warranty as the Complainant himself admitted in the complaint, hence the Complainant may get repaired the mobile in question on payment of repairing charges. The answering OP never received any letter. There is no deficiency on the part of the answering OP, hence no question of any compensation. The complaint is not maintainable and deserves to be dismissed with costs.

          The OP No.2 has filed the WS wherein it is mainly submitted that the phone was working from the time of purchase and subsequently stopped working because of the physical damage that was sustained while in the possession of the Complainant. This proves that the damage to the handset occurred while in the possession of the Complainant and caused the reboot problem with the handset. The Complainant has not adduced any proof of purchase alongwith the complaint. Even though the Complainant has received the handset as a gift he must adduce proof of purchase to show that he is a consumer. If he is not a consumer then he has no locus standi to file the present suit. The Complainant has specifically admitted that the warranty/guarantee period of the handset has expired is also an admission by the Complainant that the handset was used/working for a period of time that was more than a year. The Complainant has not admitted that the handset was not working from the time that the handset sustained physical damage. The handset is covered from all sides by a tempered encasement/cover which can withstand a limited amount of rough handling to protect the handset against unavoidable scratches, the encasement/cover also has a certain amount of durability to protect the phone against hard and rough surfaces and limited rough handling. In the event that the handset may sustain considerable trauma, the handset may sustain internal damage which would not be visible from outside and the external cover would not indicate internal

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damage. The Complainant has not disclosed the cause of the damage to the handset. The handset was deposited in the service centre for changing the cover of the handset. The job sheet is issued to every customer who approaches the service centre for repairs. The customer has inadvertently damaged the phone and this has been the cause for the handset to stop working. The Complainant approached the service centre to change the cover of the handset and did not mention that there was any issue regarding the functioning of the handset. The internal condition of the handset was not verified and the same was not even checked up as the Complainant only wanted the encasement cover for the handset. The Complainant has taken the handset in a damaged and non working condition to the authorized service centre and demanded only a cover for which the estimate was given. The Complainant has forced the OPs to make a false entry in a column of the job sheet that is supposed to be for the due date and other information. The Complainant has not adduced any document to show when the handset was purchased. It is not possible to gauge whether the Complainant has filed the complaint within the stipulated 2 years without knowing the date of purchase of the handset. The OPs assisted the Complainant and addressed his grievance and there cannot be any deficiency in service or unfair trade practice. The answering OP is ready to repair the handset as per the terms of the warranty and since the handset is out of warranty, the handset would be repaired as per the out of warranty terms and conditions. The complaint is liable to be dismissed with exemplary costs.

          The Complainant has filed his affidavit with 9 annexures and 2 papers with the affidavit of evidence. The OP No.1 has filed the affidavit of Sri Brijesh Kumar Agnihotri, Proprietor, B.K. and Co. Leela Mansion. The OP No.2 has filed the affidavit of Sri Vikas Sharma, Customer Service Manager, Nokia India Pvt. Ltd.

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          Heard Counsel for the parties and perused the entire record.

          Now, it is to be seen as to whether the Complainant is a consumer of the OPs or not? Thereafter, it is to be seen as to whether the Complainant’s handset which was given to OP No.1 for changing the cover of the mobile set became defective during the repairs done by OP No.1 or it was defective at the time of given for repairs to OP No.1 and whether the OPs are responsible for the deficiency in service or not and its consequences.

          We first take up the point as whether the Complainant is not a consumer as per the contention of the OP. It is stated by the OPs that the Complainant is not a consumer because the set was not purchased by him but in this regard the Complainant has taken the stand that the set was gifted to him by his uncle Sri Anil Kumar Gaur. He has also stated this fact on oath, therefore he is user of a mobile set which was gifted to him by his uncle and as per the definition of consumer given in Section 2 (1) (d) of Consumer Protection Act, 1986 which provides that the “consumer means any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose.” In the instant case the Complainant has got this mobile set as gift from his uncle, therefore he has the approval of his uncle to use the mobile set, therefore the Complainant falls within the definition of the consumer as provided under the aforesaid Act. Therefore, there is no substance in the contention of the

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OPs that the Complainant is not a consumer as he had not purchased the mobile set.

          Now we come to the next point as to whether the Complainant’s handset which was given to OP No.1 for changing the cover of the mobile set became defective during the repairs done by OP No.1 or it was defective at the time of given for repairs to OP No.1 and whether the OPs are responsible for the deficiency in service. Admittedly, the Complainant’s mobile was given to OP No.1 for changing the cover of the mobile set but according to the Complainant he was asked to come after half an hour and to pay a sum of Rs.1,785.00 for repairs but when he returned after half an hour he found that the mobile set was not operative as it used to get switch off immediately after its button was pressed for starting it. The stand of the OP No.1 is that he was requested to change the cover of the mobile in question and that was done in the presence of the Complainant and thereafter it was handed over to the Complainant but the Complainant after taking the mobile set told the OP No.1 that the set was not in order and requested him to check the same and after thorough checking it was found that the repairing of the mobile set was not possible and that it was required to be sent to Delhi for repairing on the charges of Rs.5,000.00. It is argued by the learned Counsel for the OPs that the set was not in order but this fact could be discerned only when the defective cover was changed whereas according to the Complainant the set was made defective while repairings were done by OP No.1. In this regard, it is important to peruse the service job sheet provided by the OP No.1 which is filed by the Complainant as annexure 1 with his complaint. In this job sheet it is mentioned that during the repairing the hand set restart/reboot was there. As per this remark, it is clear that the problem of restart/rebooting happened during the repairs only and on the basis of this remark it is vehemently argued by the Complainant himself that the problems in the set occurred during the repairing only. On the contrary, it is

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argued by the learned Counsel for the OPs that there is also the mention of the fact in the job sheet that internal condition was not checked, therefore there was no question of the set becoming defective once the internal condition was not checked but this argument is of not much avail as in the job sheet itself the problem of restart/rebooting was found while repairing which shows that the hand set in question was checked by the OP No.1. Therefore, there is reason to conclude that the set in question became defective during the repairing. Besides if we consider the circumstances under which the set was given for repairs and the statement of the OP No.1 regarding the repairs done then it follows that in para 6, the OP No.1 states that the Complainant was requested to wait some time and thereafter the answering OP changed the cover of the mobile in question in the presence of the Complainant and handed over the same to the Complainant. Here, the question arises as to why when the job is being done right in front of the Complainant the OP No.1 will ask the Complainant to wait some time. In fact, this saying of “wait for some time” is in consonance with the statement of Complainant that he was asked to wait half an hour and so when he went back to take the set then he found that it was not functional. It is in between the half an hour that the set was allegedly repaired but became defective during the repairs. Again it is not believable that OP No.1 which is the service centre would change the handset cover but still not test the mobile whether it was functional or not which is natural consequences of repairs being done by any service centre employee but in the instant case the OP No.1 states that after the cover of the set was changed and it was given to the Complainant and when the Complainant checked it then he found that it was not functional so even the circumstances do not favour the stand of the OPs. Thus, the only conclusion can be drawn out of the discussions made above is that the mobile set which was given for repairs by the Complainant to OP

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No.1 became defective during the repairs and therefore the OP No.1 has committed deficiency in service and the Complainant is entitled to get the repairs done. It is a queer case where the Complainant goes to a service centre for repairs but instead of properly repairing the set, the employees of the service centre make the set defective and thereafter ask for the charges for its repairs which is not only harassment of the consumer but also an unfair trade practice on the part of the service centre as also a case of deficiency in service, therefore the Complainant is not only entitled to the free repairs of the set but also entitled to compensation. He is also entitled to the cost of the litigation.

          So far as OP No.2 is concerned they are the manufacturers of Nokia sets and as the handset in question did not have any complaint about the manufacturing defect, therefore the OP No.2 is not in any way responsible for the repairs not being properly carried out by OP No.1. Therefore, it is concluded that OP No.2 is not in any way liable in this complaint and the complaint against OP No.2 is liable to be dismissed.

ORDER

          The complaint is partly allowed. The OP No.1 is directed to completely repair the mobile set of the Complainant making it properly funcitonal after getting Rs.1,785.00 from the Complainant as cost of the cover of the mobile.

          The OP No.1 is also directed to pay Rs.3,000.00 (Rupees Three Thousand only) as compensation and Rs.3,000.00 (Rupees Three Thousand Only) as cost of the litigation. The compliance of the order is to be made within a month. The complaint against OP No.2 is dismissed.

          (Anju Awasthy)                             (Vijai Varma)

                  Member                                     President

Dated:    21  April, 2015