This case is coming for final hearing on 23-06-2014 in the presence of Sri E.V.Narasimha Rao, Advocate for the Complainant and of M/s M.R.K.Chakravarthy & G.N.S.S.Prasad Advocates for 1^st Opposite Party and of Sri S.Nageswara Rao Advocate for 2^nd opposite party and 3^rd opposite party called absent and set exparte and having stood over till this date, the Forum delivered the following:                                                                                                                                            

: O R D E R :

(As per Smt. K.V.R.Maheswari, Honourable President(FAC) on behalf of the Bench)

1.       The case of complainant is that the 1^st opposite party is the authorized dealer of the 3^rd opposite party and the 3^rd opposite party is the Manufacturer , 2^nd opposite party is the service centre.  The complainant purchased mobile hand set bearing model No.K1616 of Karbon Mobile with IMEI NO.911124350147084 from the 1^st opposite party on 21.08.2011 for Rs.4,600/- which includes the amount of Rs.250/- of 2G micro SD card by paying cash vide invoice No.SI/DAB/11874. The complainant stated that she approached the 1^st opposite party along with her husband immediately when the mobile handset is not working and then, the 1^st opposite party advised them to visit the office of the 2^nd opposite party i.e., authorized service agent of the 3^rd opposite party.  Then, the complainant approached the 2^nd opposite party as per the advise of 1^st opposite party due to problem in touch screen and handed over the said mobile to the 2^nd opposite party for doing service on 05.03.2012 and the 2^nd opposite party also issued customer job card bearing NO.KAELS450120500023 & KA12545010650 and promised the complainant that they will rectify the said defect and will inform the complainant.  The complaint was registered in the name of husband of the complainant.  On 26.03.2012 the complainant visited the office of the 2^nd opposite party and enquired about the mobile set then, the 2^nd opposite party gave rash and negligent answer and intimate that it will take another 2 to 4 days to get it repair as the same sent to head office i.e., 3^rd opposite party. After that the complainant visited several times but there was no reply from them, then she took the problem to the notice of the 1^st opposite party i.e., authorized dealer of 3^rd opposite party but they did not gave any proper reply and also stated that it is no more concerned about the service of the mobile set which was purchased from them on 21.08.2011. 

2.       Then, the Complainant issued a registered lawyer’s notice to the opposite parties on 11.06.2012, but due to typographical mistake, the said notice was sent in the name of the husband of the complainant and later on after realizing the said mistaken an Erratum was issued to the complainant on 04.07.2012.  The notice sent to the 2^nd opposite party was returned to the complainant for want of full remarks and the other two opposite parties along with acknowledgments have not yet returned.  The Complainant received a phone call from the 2^nd opposite party and informed her that her mobile was ready, then, she went to the 2^nd opposite party on 13.06.2012. But thereafter, once again, the said mobile set started giving problems.  The Complainant handed over the mobile set to the 2^nd opposite party on 20.06.2012. 

3.       The complainant stated that at the time of filing the complaint, the enquiries revealed that the 2^nd opposite party has changed his firm as Sri Sainadh Enterprises which is formerly known as Sri Manjunadha Communications.  The complainant stated that the sale of defective mobile handset to the complainant is a deficiency in service on the part of the opposite parties and caused mental agony and financial hardship.  Hence, this complaint to direct the opposite parties:

a)      To pay an amount of Rs.4,600/- with 24% p.a. interest from the date of purchase till the date of payment.

b)      To pay Rs.25,000/- towards compensation besides costs. 

4.       On the otherhand, the 1^st opposite party filed its counter and denied all the allegations mentioned in the complaint and pleaded that the complainant alleged that the mobile phone was taken to the 2^nd opposite party on 03.05.2012 but the mobile phone was taken to the 2^nd opposite party on 05.03.2012 and the phone was purchased on 21.08.2011 at Para-III(b) of the complaint and at para-III it was stated that the mobile phone was purchased on 21.08.2012.  This shows that the complainant itself does not disclose the true facts of the case and the cause of action alleged by her is not correct.  At para-III(d) of the complaint that the complainant alleged that she visited the 2^nd opposite party on 03.05.2012 and at para-III(e) she alleged that she again visited the 2^nd opposite party on 26.03.2012 which day falls much earlier to 03.05.2012.  Hence, the complainant’s case is false, as such it is not maintainable and after the purchase of the mobile phone by the complainants, she never visited the showroom of the 2^nd opposite party for enquiry.  The opposite party  pleaded that the manufacturer only provides warrantee for the mobile phones and further authorizes, the authorized service centre i.e., 2^nd opposite party to carryout the repairs if in case of any defect arises before one year from the date of purchase.  The 1^st opposite party is only the dealer and no way concerned with the manufacturing units or with warrantee provided by the manufacturer.  Hence, there is no response from this 1^st opposite party as mentioned by the complainant.  Moreover, the 1^st opposite party have no knowledge about the defects in respect of mobile phone.  The mobile phone was purchased in August 2011 and till March or May as the case may be 2012, the mobile did not suffer from any defects and it was conveniently used by the complainant without any defects.  As per the allegations of the complainant immediately after the purchase the phone started giving problem is false, therefore, the question of defective phone being sold by this opposite party does not arise.  The problem of touch screen may be due to falling of the mobile phone on the floor or due to water logging or by any other reason.  If the defect caused due to negligent act of the complainant, the opposite parties cannot be held responsible for that as it is not a manufacturing defect.  Hence, the expert opinion is only determined with proper analysis from an expert, hence this complaint is to be dismissed.

5.       The 2^nd opposite party filed its counter and pleaded that the complainant collected the mobile on 13.06.2012 and again the complainant gave the handset to the opposite party on 20.06.2012 as alleged by the complainant.  But this 2^nd opposite party is not responsible for the deficiency in service as it is only an authorized service centre of Karbon mobiles and other mobiles appointed by the respective companies for rendering the services who purchased cell phones from them.  The duty of this 2^nd opposite party is to rectify the defect in the mobile and intimate the same to the company and after approval this opposite party have to rectify the defect to their convenience.  In this case, the complainant approached this opposite party with the handset and after verifying the handset and identified the defect and rectified the same and handover the same to the complainant and again the complainant handed over the handset and again the defect was rectified and intimated the same to the complainant to come and collect the same but the complainant did not take back the handset and demanded to replace the same with new one.  The 2^nd opposite party pleaded that it is not an authorized person or responsible for replacement of handset and no way connect with the purchasing and selling of the mobiles.  This opposite party rendered its service to the complainant properly and the handset is ready to deliver to the complainant but the complainant refused to take back, as such there is no deficiency of service on the part of this opposite party.  The Complainant purchased the handset from the 1^st opposite party and the 3^rd opposite party is the manufacturer, hence those two are liable either to refund the amount or to pay the compensation to the complainant.  Hence, this complainant is to be dismissed against the 2^nd opposite party.

6.       The 3^rd opposite party called absent and set exparte. 

7.       At the time of enquiry the complainant filed affidavit along with documents which are marked as exhibits Ex.A1 to A17.  On the otherhand, the 1^st and 2^nd opposite parties filed their counters.  But evidence affidavit of opposite parties not filed even imposing costs, hence treated no evidence affidavit to the opposite parties.  No documents are marked on behalf of the opposite parties.  Heard the complainant and there is no representation by 1^st and 2^nd opposite parties at the time of hearing even after imposing costs, hence treated it heard for opposite parties 1 & 2. 

8.       In view of the respective contentions, the point that would arise for determination is:-

          Whether there is any deficiency in service on the part of the opposite parties, if so can the complainant entitle for the reliefs prayed for?

9.       The fact that Ex.A1 is the bill issued by the 1^st opposite party to the complainant on 21.08.2011 is not in dispute.  Ex.A2 is the customer job sheet issued by the 2^nd opposite party on 05.03.2012 i.e., after six months of purchase of mobile is also admitted by the 2^nd opposite party.  In Ex.A2 at the problem description it is mentioned as touch not working.  Ex.A3 is the registered lawyer’s notice issued by the complainant on 11.06.2012 and Ex.A4 is the postal receipts. Ex.A5 is the return postal cover of the 2^nd opposite party along with acknowledgment on 18.06.2012.  After that, the complainant issued an Erratum to the opposite parties on 04.07.2012 i.e., Ex.A6. Ex.A7 is the postal receipts.  Ex.A8 & 9 are the letters addressed by the complainant’s Advocate to the post master wherein, the complainant mentioned about the position of the notice issued by him on 11.06.2012 and 04.07.2012.  Ex.A10 & 11 are the returned postal cover of the 2^nd opposite party and the postal acknowledgment of the 1^st opposite party.  Ex.A12 is the postal acknowledgment sent by the Senior Superintendent of Post office to the Advocate on 13.07.2012 (3 nos.) stating that they are doing enquiries regarding the delivery of registered letters.  Ex.A13, 14 & 16 are the settled reply given by the Superintendent of Post office to the Advocate regarding the delivery of letters issued by the complainant to the opposite parties.  Ex.A15 is the postal acknowledgment of the 3^rd opposite party. Ex.A17 is the reply notice given by the 1^st opposite party on 25.07.2012. 

10.     The version of the complainant is that she purchased mobile set for an amount of Rs.4,600/- and after that it is not working and the touch screen was not working well and she approached the 1^st opposite party, then, the 1^st opposite party advised to visit the 2^nd opposite party, then the 2^nd opposite party issued job card and after several demands made by the complainant, the 2^nd opposite party made a call to collect the mobile handset and the complainant collected the handset on 13.06.2012 i.e., after three months but again the handset started giving problems then, the complainant handed over to the 2^nd opposite party on 20.06.2012.  The complainant stated that because of typographical mistake the notice was sent in the name of the husband of the complainant and later an Erratum was issued by the complainant.  The complainant also issued letters to the post master regarding the notice issued by her to all the opposite parties.  For those notices, the post master also gave a reply regarding the position of the notices issued by the complainant.

11.     The version of the 1^st opposite party is that he is only a dealer and he is no way connected regarding the manufacturing defects in the mobile phone and more over the dates mentioned in her complaint are not tallied with the documents filed by her but the Forum observed that the complainant because of typographical mistakes the dates were not mentioned correctly, but later she came with a neat copy and corrected the dates in the complaint. 

12.     The 2^nd opposite party in its counter pleaded that the 1^st and 3^rd opposite parties are only liable to pay the amount or compensation or anything being a service provider the 2^nd opposite party repaired the mobile and handover the handset, but after that again the mobile was repaired then, it was rectified by the 2^nd opposite party and ready to deliver the handset to the complainant, but she refused to take back, hence there is no deficiency in service on its part.

13.     After careful analysation of the facts of the complaint, and counter with related documents, the Forum is of the view that within six months of the purchase the mobile set was repaired and the complainant roamed around the offices of the 1^st opposite party and on the advise of the 1^st opposite party approached the 2^nd opposite party and the 2^nd opposite party took time nearly three months, but it was not rectified and again the complainant handed over the mobile set to the 2^nd opposite party, it is still with the 2^nd opposite party.  Even though, the 2^nd opposite party is ready to deliver the mobile to the complainant, the complainant is not interested to take back the mobile, as it was a defective one.  The version of the 1^st opposite party is not that much strong regarding the dates as those are typographical mistakes later those are corrected.  The complainant made several efforts to issue notices to the opposite parties, but there was no positive response from any of the opposite parties.  The 1^st opposite party i.e., the dealer cannot escape from his liability as he is not a manufacturer.  Within warrantee period the mobile was damaged, hence the 1^st opposite party is also liable as there is deficiency in service on his part regarding selling of defective mobiles.  Being a manufacturer, 3^rd opposite party is also liable for his deficiency in service on his part.  The 2^nd opposite party i.e., service centre took three months time to repair the mobile and again mobile was giving trouble, it shows its deficiency in service on its part.  Hence, all the opposite parties are liable to pay the cost of mobile i.e., Rs.4,600/- as per Ex.A1 even though it was wrongly mentioned as Rs.4,350/- in the complaint with 9% interest from the date of purchase i.e., 21.08.2011.

14.     It is to be noted that after purchasing the mobile phone, the complainant roamed around the offices of the opposite parties and by not having the mobile phone, she might have been suffered mentally, but the claim regarding the compensation by the complainant is on higher side, hence, the complainant is entitled for compensation of Rs.1,000/- which would be just and proper. 

          Accordingly, this point is answered.

15.     In the result, the complaint is allowed directing all the opposite parties to pay Rs.4,600/- with interest at 9% p.a. from 21.08.2011 till the date of payment and further directed to pay Rs.1,000/- towards compensation besides costs of Rs.1,500/-. Time for compliance one month.

Dictated to the Shorthand Writer, transcribed by her, corrected and pronounced by us in the open Forum on this the 30^th day of June, 2014.

   Sd/-                                                                         Sd/-

Member                                                                          President (FAC)

                                                                             District Consumer Forum-I

                                                                                       Visakhapatnam

Consumer Complaint No:235/2012

APPENDIX OF EVIDENCE

Exhibits Marked for the Complainant:

Exhibits Marked for the Opposite Parties:

NIL

   Sd/-                                                                           Sd/-

  Member                                                                         President (FAC)

                                                                             District Consumer Forum-I

                                                                                       Visakhapatnam