This case is coming for final hearing on 10-12-2014 in the presence of M/s.Palakurthi Srinivasa Apparao, Advocates for Complainant and Sri U.S.V.Prasad, Advocate for 1^st Opposite party and the complaint against 2^nd Opposite Party was dismissed as the steps have not been taken by the Complainant and having stood over till this date, the Forum delivered the following.                                                                                                                                                                                                                                                                                                                                                                                           

: O R D E R :

(As per the Honourable Member Sri V.V.L.Narasimha Rao on behalf of the Bench)

1. The Complainant filed the present Complaint against the Opposite Parties 1 & 2 on 30.07.2012 and requested the Forum to direct the Opposite Parties (1) to replace new Mobile in place of old defective Mobile set given by the Opposite Party (2) to pay compensation of Rs.50,000/- for causing mental agony (3) to pay costs of Rs.20,000/- towards costs for the litigation.

2. The brief facts are as follows:- The Complainant submits that he is working as Bank Officer in Visakhapatnam and he purchased Nokia Mobile No.2730 Classic vide IMEI No.356234040634771 for his official purpose. After using the Mobile set for 3 months, the Mobile set started giving trouble for the first time on 9.4.2011. Finally, the Opposite Party returned the Mobile to the Complainant while changing some parts viz battery etc. Even after changing the parts also the Mobile set is not working properly. Hence having vexed with the attitude of the Opposite Party service with regarding to the Mobile the Complainant has filed the present complaint against Opposite Parties 1 & 2 seeking reliefs as sought for.

3. The Notices were served to the Opposite Parties 1 & 2. On behalf of 1^st Opposite Party M/s.Sri U.S.V.Prasad, Advocates filed Vakalat. The 1^st Opposite Party filed detailed Counter, denying the averments of the Complainant.

4. In the Counter of 1^st Opposite Party, the Opposite Party stated that the Complainant has to prove the fact that he has purchased Nokia Mobile on dt.18.1.2011 vide Model No.2730 Classic, IMIE No. 356234040634771, that too as the complainant himself has stated that it has been purchased for official use has to prove the said fact also. The complaiant has purchased the Mobile phone set 2730 classic vide IMIE No.354870047863434 through Mr.Sandeep Kumar.J on 5.2.2011. On 5.2.2011 as there was a complaint with regarding to “switch off”, the same was returned again on 2.4.2011. There was a problem with Mobile regarding “switch off”, which was handedover by Mr.Sandeep.V. Then, the Opposite party has replaced the Mobile with a new Mobile set with IMEI No. 356234040634771. Even the said mobile set is also having some problem with regarding to “power, switch off” and it was given to servicing centre on 23.07.2011. After repair, it was returned to the complainant. Again there was a problem with regarding to complaints of “audio, no incoming audio” on 15.12.2011. The problem was rectified and the mobile set was returned to the complainant. After the warranty period for the said mobile set was expired on 28.01.2012, the complainant came with a complaint on 7.5.2012 that the Mobile set was not working property, as the mobile set was beyond repairable condition and “with economical repair” the set was returned to the complainant. So the Opposite Party is not having liability to repair the mobile. The complainant approached the Forum with unclean hands suppressing the fact that the warranty period is completed by 28.01.2012. Hence, as there is no deficiency of service on part of 1^st Opposite Party, the complaint may be dismissed with heavy costs.

5. The Notice not served to the 2^nd Opposite Party, the Forum directed the Complainant to give paper publication in newspaper. As the Complainant has not taken proper steps for giving paper publication, the complaint against 2^nd Opposite Party is dismissed.

6. Observing the pleadings of the both sides, the Forum framed the following pointsfor consideration: a) Whether the Complaint is maintainable before this Forum; b) Whether there is deficiency of service on part of Opposite Party; c) To what relief.

7. The Complainant filed his Evidence Affidavit and on his behalf Exs.A1 to A3 were marked. The 1^st Opposite Party filed Evidence Affidavit and Exs.B1 to B4 were marked. The 1^st Opposite Party and Complainant has submitted the oral and written arguments.

8. At the time of arguments the Complainant counsel stated that the Complainant has suffered a lot with regarding to the defective Mobile set sold by the Opposite Parties since he wasworking as a Bank Officer in a Bank and that too he could not utilize the Mobile properly within the warranty period given by the Opposite Party. The Opposite Party counsel stated that from the initial stage the Opposite Party is acting property with regarding to the complaints given by the Complainant and thereafter as the Mobile set was not working properly another mobile set was handedover to the Complainant and after handovering the 2^nd Mobile set and the warranty period for the 1^st Mobile set was expired on 28.01.2012. The Complainant came with a complaint on 7.5.2012 as there is a defect in the Mobile. Since the repair is not possible and it was beyond economical repairs, the Opposite Party did not repair the same and the same was returned to the Complainant on 7.5.2012. The Opposite Party stated that the “economical repairs” means and the expense incurred for the repairs will be that of the value of the Mobile set.

9. Point No.1: The present complaint is filed by the Complainant against Opposite Parties 1 & 2 i.e. Service Centre of Nokia Care & Manufacturer of Nokia Mobile Phone. As seen from docket sheet, 3.7.2013 it seems that opportunity was given to the complainant for giving publication in newspaper for appearance of 2^nd Opposite Party, Complainant has not taken appropriate action and thereby Complaint against 2^nd Opposite Party-Manufacturer is dismissed. Observing the facts and circumstances of the Complaint along with Ex.A1, Invoice dt. 18.1.2011 vide Ex.A3 it seems Complainant has purchased the Nokia 2730 Mobile phone for Rs.4,700/- from Cell Point, Shop No.2, Ram’s Arcade, Dabagardens, Visakhapatnam-20. The Complainant has not taken proper steps for making the Cell Point i.e. the Seller of the Mobile as a party. Anyhow, observing the Exs.B1 & B2, two Job sheets dt. 5.2.2011 & 2.4.2011 along with Ex.A2, extended warranty check report and the admission of the Opposite Party in counter vide Para No.4 as the 1^st Opposite Party is admitting the fact that the Complainant has purchased the Mobile phone vide Ex.A3 invoice and as there were two repairs to the Mobile mentioned in Ex.A3, another mobile phone vide IMIE No. 3562340406347701 was handedover to the Complainant. Though the Complainant has not taken steps for publication and the complaint against 2^nd Opposite Party, manufacturer was dismissed, observing the version of the Opposite Party in the counter and along with Exs.B1, B2, A1, B3 & B4 Job sheets pertaining to the 2^nd Mobile phone given to the Complainant by the Opposite Party No.1 Servicing Centre, we conclude that the Complaint is maintainable before this Forum.

   Accordingly Point No.1 is answered

10. Point Nos.2 & 3: The Complainant filed the present Complainant, and he requested the Opposite Party to replace the same with new branded one along with compensation and costs. The Opposite Party filed detailed counter stating that they have responded for each and every repair for the 1^st mobile which was purchased by the complainant on 18.1.2011 vide Ex.A3 and as the said mobile set was not functioning well, another mobile set was given to him and it was not working properly till the expiry period of the 1^st mobile set and the 2^nd set gave problem after the warranty period of the 1^st mobile set and that too it was beyond economical repair. So the Opposite Party cannot repair the same and it was returned to the complainant vide Ex.A1.

11. Ex.A3 is the Invoice No.4703, dt. 18.1.2011 showing that the complainant has purchased Nokia 2730 Model Mobile vide IMEI No. 354870047863434 for Rs.4,700/- from the Cell Point, Shop No.2, Ram’s Arcade, Opp. BSNL Office, Dabagardens, Visakhapatnam-20 vide Ex.A3 Invoice the Complainant’s name V.Nageswara Rao is mentioned which reveals that he is working in State Bank of India, Seethammadhara Branch, Visakhapatnam. Ex.A2 is the extended warranty check document, which reveals that on 23.07.2011 and 15.12.2011 there was a primary fault of software upgrade for the Mobile set vide IMEI No. 354870047863434. Exs.B1 to B2 are the job sheets for the Mobile set purchased by the complainant vide Ex.A3 on 18.1.2011. In Ex.B1 & B2 it reveals that the Customer name is Sandeep Kumar.J and in Ex.B2 it was mentioned as Customer name Sandeep.V. It seems vide Ex.A1, the Complainant has purchased his mobile set Nokia 2730C and his son or his relative might have been taken the phone from the Opposite Party No.1 and the problem was rectified on 5.2.2011 and 2.4.2011.

12. Ex.B3 and B4 are the Job sheets dt.23.07.2011 and 15.12.2011. For the Mobile set vide IMEI No. 356234040634771. Exs.B3 & B4 reveals that there was a problem of power and switch off and the same was repaired and returned to the complainant. Observing Exs.B3 & B4 Service Job sheets of 1^st Opposite Party Servicing Centre and the version of the 1^st Opposite Party in para 4 of the Counter, it seems after the repairs were done to the Mobile set mentioned in the Ex.A3, the 2^nd time the Opposite Party has provided another mobile set to the complainant vide IMEI No. 356234040634771 and it gave trouble for twice and again on 7.5.2012 after the expiry of the period of the Mobile set. Ex.A1 reveals that it was a certificate given by the Opposite Party Service Centre that the 2^nd Mobile which was provided in place of the old defective Mobile set vide Ex.A3 is also not functioning well and repair could not be done and there by as the repair charges will be more than that of the value of the Mobile set, the Mobile set was handover to the Complainant on 7.5.2012.

13. As seen from Ex.A3, Invoice dt. 18.01.2011, it seems the warranty period for mobile set is for one year and in that one year the Opposite Party has rectified the repairs for the 1^st Mobile set (vide Ex.A1) on 5.2.2011 and 2.4.2011, 9.4.2011. Thereafter, the new Mobile was replaced within the warranty period also the 2^nd Mobile set is also given trouble for two times on 23.07.2011 and 15.12.2011. When the complainant has approached the Opposite Party after prescribed warranty period after 12 months on 7.5.2012, the Opposite Party has returned the Mobile set vide Ex.A1 with undertaking that it could not be repairable.

14. Observing the Ex.A3 Invoice dt.18.1.2011 and the admission of the Opposite Party that they have provided proper service to the Complainant vide Exs.B1 to B4 confronted by Ex.A2 extended warranty check report, it seems the Opposite Party has taken responsibility to do service to the Complainant and thereby as NOKIA 2730C mobile set was beyond economical repairs i.e. the charges which will be beyond the value of the Mobile set, the Opposite Party has not done the repairs.

15. As seen from Ex.A3, B1, B2, A2, B3 & B4, it seems from the date of purchase of the Mobile there are continuous repairs to the Mobile set and that the 2^nd Mobile was given to the Complainant also it was not working properly confronted by Ex.A1, dt. 7.5.2012 given by the 1^st Opposite Party. Observing the Ex.A3, B1 to B4, A2 & A1 we are of opinion that there is deficiency of service on part of the Opposite Party No.1 in returning the defective mobile set vide Ex.A1. Inspite of returning the defective mobile set vide Ex.A1, the Opposite Party might have handedover another new mobile set for worth of Rs.4,700/- to the Complainant as he has suffered a lot with repairs to the Mobile set for 5 times since the date of purchase of the Mobile set (reflected in Exs.B1 to B4, A2).

16. Hence observing the entire contents of the Complainant and Exs.A1, B1, B2, A2 along with Ex.B3, B4, we are of considered opinion that the only equitable remedy available to the Complainant is replacing of new mobile set in place of old defective one with fresh warranty period or else the complainant is entitled for the new mobile set in place of defective mobile at his choice for the worth of Rs.4,700/-. The 1^st Opposite Party is directed to replace the new Mobile set in place of defective mobile set which was returned to the Complainant vide Ex.A1, the Complainant has to handover the defective mobile set vide IMEI No. 356234040634771 (reflected in Ex.A1) to the 1^st Opposite Party and after taking the same the 1^st Opposite Party has to provide new Mobile set to the complainant at his choice for worth of Rs.4,700/-. As the remedy was provided for the complainant for replace of the Mobile set and also observing the contention that he has purchased for his official use, we conclude that the Complainant is not entitled for any costs and compensation from the 1^st Opposite Party.

    Accordingly Point Nos.2 and 3 are answered.

17. In the result the complaint is allowed in part. The 1^st Opposite Party is directed to replace the new Mobile set at the choice of the complainant for worth of Rs.4,700/- in place of old defective mobile. The Complainant is advised to handover the old defective mobile set to the 1^st Opposite Party and after receiving the defective mobile set, the 1^st Opposite Party has to provide new Mobile set immediately to the Complainant with fresh warranty period. The complaint against 2^nd Opposite Party is dismissed. No order to costs. Time for compliance is 30 days from the date of receipt of this order.

    Dictated to the Stenographer, transcribed by him, corrected by me and pronounced  by us in the open Forum on this the 2^nd day of January, 2015.

                                

     

             Sd/-                                                                               Sd/-

    President (FAC)                                                        Member                                                                                                        District Consumer Forum – I,

                                                                                  Visakhapatnam

     

    APPENDIX OF EVIDENCE

     

     

    Exhibits Marked for the Complainant:

Exhibits Marked for the Opposite Party:

        Sd/-                                                                                 Sd/-

President (FAC)                                                        Member                                                                                                        District Consumer Forum – I,

                                                                              Visakhapatnam