SMT.MOLYKUTTY MATHEW : MEMBER

       This is a complaint filed by the complainant U/S 12 of  Consumer Protection Act 1986 for an order directing the  opposite parties to refund  the value of mobile  phone Rs.14,999/- along with mental strain  and stress of complainant  to a  compensation amount of Rs.1,00,000/- to the complainant for  the deficiency of service  on their part.

 The case of the complainant in brief:

   The complainant is working as a medical representative and for  doing the work  for his livelihood.  In order to promote his work he has to contact the company’s through internet.  He has to submit his daily work report and to contact the company through e mail in connection with his job.  As per the advertisement of 3^rd OP the complainant had purchased Redmi Note 5 Pro black mobile phone from 1^st OP dtd.29/10/2018 for an amount of Rs.14,990/- with an invoice No.1849.  Then the complainant started to use the mobile phone within a month it was completely  dead and not in a position to make calls and to use internet.  Then the complainant immediately contacted 1^st OP. Then 1^st OP instructed the complainant to handed over the mobile phone to 2^nd OP the authorized service centre of 3^rd OP.  Then 2^nd OP stated that  software and power button of the mobile was inactive and they removed the same and installed new one.  Thereafter on 16/1/2019 the mobile phone again incompletely dead and the complainant again approached to 2^nd OP.  2^nd OP checked the mobile phone and stated that mother board was not functioning and the repair and replace the mobile phone has to keep with 2^nd OP for a week.  Thereafter the complainant taken back the mobile phone on 24/1/2019 after its repairing work.  On the same day evening itself  the phone became defective .  On the next day 25/1/2019, the complainant again approached to 2^nd OP and 2^nd OP stated that mother board was again got defective and repaired only after one week.  On 6/2/2019 the 2^nd OP informed the complainant that the phone’s defect was cured and it is in working condition.  Then the complainant approached 2^nd OP, one representative of 2^nd OP  company was there and the complainant talked with him and he stated that the product is not in a good working condition and  some manufacturing defects also.  So the complainant is not in a position to take back the mobile phone from 2^nd OP.  Now the mobile phone is with 2^nd OP.  The act of OPs the complainant caused much mental agony and financial loss.  For doing his work he constrained to purchase a new mobile phone also.  Then on 15/2/2019 the complainant send a lawyer notice to all OPs.  All  OPs received the notice and neither send a reply nor to replace the mobile phone. So there is deficiency  in service and unfair trade practice on the part of OPs.  Hence the complaint. 

      After  filing the  complaint  notice issued  to  all OPs, 1^st  OP received the notice  and not appeared before the commission.  So 1^st OP is set exparte.  2^nd OP appeared before the commission  and filed a memo  stating that 2^nd OP have resigned the service of 3^rd OP and provide new service centers’ address also.  3^rd OP entered appearance  before the commission and filed  his written version . He contended that on 7/12/2018 the complainant approached service centre of 3^rd OP  that the product is in “Dead condition.  Then replaced the side key FPC of the mobile phone as per the terms and conditions.  Again the complainant approached  on 23/1/2019 the issue related to  power on fault.  Then replaced the main board of the mobile phone.  Again the complainant approached to the service centre on 6/2/20-19 regarding the issue slow charging.  To long time taken for charging , some time no net work shown in the mobile phone.  Then again replaced the main board.  3^rd OP stated that  provide free of  charge, repair and replacement service within the warranty period.  Complainant did not file expert opinion report in order to prove that there was manufacturing defect in the product in question.  The manufacturing defect in the product could be proved only by way of opinion  of expert.  In this case the complainant has not taken an expert to prove the manufacturing defect of the product. So there is no deficiency of service from the side of 3^rd  OP and the complaint may be dismissed.

    On the  basis of the rival contentions  by  the pleadings the following issues   were framed for  considerations.

1.  Whether there is any deficiency  of service on the part of  the opposite parties?

2. Whether the complainant is  entitled for  any relief?

4. Relief and cost.

       The   evidence consists of the oral testimony of PW1 and  the documents Exts.A1 to A7were  marked . No oral evidence from the side of OPs,  Exts.B1 to B5 also marked.

Issue No.1:

     The  complainant adduced evidence  before the commission by submitting his  chief  affidavit  in lieu  of his chief examination to the  tune of the pleadings in the complaint and denying  the contentions in the version. PW1 was cross examined  by 3^rd OP.  The documents Exts.A1 to A7 were marked on his part to substantiate his case.  According to him the mobile phone was purchased on 29/10/2018 as per Ext.A7 the original tax invoice(cash credit) the amount paid as Rs.14990/- to 1^st OP.  1^st OP is the dealer and 3^rd OP is the manufacturer.  The use of  mobile phone within a month itself the phone became defective.  As per Exts.A2 the service order and Exts.B3 to B5 documents the service record shows that the mobile phone became defective  on 7/12/2018, 23/1/2019 and 6/2/2019 and the  complainant produced the mobile phone before 2^nd OP for repair within the limited warranty period.  Moreover the complainant was working as a medical representative  and the defect of the phone adversary affected  his job also.  Now the phone is with 2^nd OP also. 3^rd OP denying  the manufacturing defects of the mobile phone in the absence of  expert opinion.  Then the  bounden duty of 3^rd OP to prove that the mobile phone’s defects caused 3 times in the warranty period is not due to manufacturing defect.  In Exts.B1 & B2 clearly stated  the warranty and limited  warranty statement.  So we are of the considered view that the OPs bound either to replace the phone or refund the value of mobile phone.  Since they failed to do so.  We hold that there is deficiency of service and unfair trade practice on the part of OPs.  Hence issue No.1 found in favour of the complainant and answered accordingly.

Issue  No.2&3: 

    As discussed above the OPs are not ready to replace a new mobile phone to the complainant.  The complainant produced the Ext.A7 document which clearly shows that the complainant had  paid Rs.14,990/- to 1^st OP.  According to the complainant failure to provide a new mobile phone  the OPs are directly bound to redressal the grievance  caused to the complainant. It is an evident before the commission that the complainant was forced to purchase another brand new mobile phone  due to the deficiency of service on the part of OPs.  Therefore we hold that OPs 1 to 3 jointly and severally liable  to pay the value of mobile phone of Rs.14,990/- to the complainant along with Rs.5000/- as compensation for mental strain and stress and Rs.2500/- as litigation cost.  Thus the issue No.2&3 are also accordingly answered.

         In the result, the complaint is allowed in part directing the opposite parties 1 to 3 jointly and severally liable  to pay the value of mobile phone of Rs.14,990/- to the complainant along with Rs.5000/- as compensation for mental strain and stress of the complainant and Rs.2500/- as litigation cost  to the complainant within  30 days  of  receipt  of this order.    In default  the amount of Rs.14,990/- carry interest @9% per annum  from the date of order till  realization .  Failing which the  complainant is  at liberty to  execute  the  order as  per the  provisions  of Consumer Protection Act 2019.

Exts:

A1-Tax invoice

A2-Service order dtd.25/1/2019

A3-copy of lawyer noticed.15/2/2019

A4 to A6- Acknowledgment card by OPs dtd.25/2/2019

A7- Original cash bill dtd.29/10/2018

B1-Limited warranty(photocopy)

B2-Limited warranty statement

B3 to B5- Service records( marked with objection)

PW1-Ratheesh.V.V-complainant

Sd/                                                    Sd/                                                           Sd/

PRESIDENT                                  MEMBER                                        MEMBER

Ravi Susha                             Molykutty Mathew                             Sajeesh K.P

eva                                                        

                                                                                         /Forwarded by Order/

               SENIOR SUPERINTENDENT