BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 14/02/2011

Date of Order : 29/11/2011

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

C.C. No. 90/2011

Between

And

O R D E R

C.K. Lekhamma, Member.

1. The facts of the complainant's case are as follows :

The complainant purchased a Blackberry Mobile Handset bearing No. 8520 from the 1^st opposite party at the time of sales promotion campaign of the 2^nd opposite party on 25-01-2010. After a few months, the handset shown some defects such as the calls getting hanged, handset switching off frequently etc. The said defects were caused due to manufacturing defect of the gadget under dispute. The same was entrusted with the 2^nd opposite party on 18-12-2010 for rectification of the defects. But the opposite parties have not so far rectified the said defects and hand it over to the complainant in spite of repeated requests. The opposite parties intimated the complainant by a letter stating that the set is in unrepairable condition along with some photos showing the defects. The opposite parties are attributing that the failure is due to liquid damage. This is not correct. The complainant was told that the datas and entire entries in the said handset were copied into the computer kept in the office of the opposite parties prior to repair. However, the opposite parties neither returning the handset in good condition nor giving those datas and entries to the complainant. The complainant has issued lawyer notice to the opposite parties. But till date there is no response on the part of the opposite parties. The omission on the part of the opposite parties in promptly repairing the handset within the warranty period amounts to deficiency of service. Hence the complainant approaches this Forum to get the following grievances redressed :

1. To direct the opposite party to refund Rs. 14,107/- the price of the mobile hand set, with 12% interest.

2. To direct the opposite parties to pay Rs. 10,000/- being compensation and costs of the proceedings.

2. Version of the 1^st opposite party :

The 1^st opposite party sells Blackberry handset manufactured by M/s. Research In Motion (RIM) to customers of the 2^nd opposite party at special rates. On checking the disputed handset by service experts of RIM namely Flextronics Technologies (India) Pvt Ltd., Bangalore it was found that the same is in unrepairable condition due to liquid damage. The impleadment of Flextronics Technologies (India) Pvt Ltd., Bangalore and M/s. Research in Motion (RIM) makes the complaint bad for non-joinder of necessary parties. The damage has been caused due to the mishandling of the handset by the complainant. There was no omission on the part of the 1^st opposite party as alleged in the complaint. There was no deficiency of service as alleged in the complaint. There is no cause of action for the complaint. The complaint lacks bonafides. The complainant is not entitled to get any of the reliefs against the 1^st opposite party.

3. The defense of the 2^nd opposite party :

The 2^nd opposite party herein is the company engaged in the business of providing Mobile Cellular Services from its Kerala circle office at Ernakulam, to its subscribers all over Kerala. The services are as per normal acceptable standard of services and as per international norms. The 2^nd opposite party has never sold the disputed handset to the complainant. The 1^st opposite party might have sold the handset of certain company for which the 2^nd opposite party has no responsibility at all. The handset is seemingly manufactured by M/s. Research in Motion Singapore Pvt. Ltd. The complainant's handset when handed over for lab testing it is revealed that the handset has been immersed in water solely attributable to the complainant's improper handling. The complainant never entrusted the handset to the 2^nd opposite party in a repairable condition. The complainant is not entitled for any damages at any rate.

4. The complainant and the opposite parties represented through counsel. Both sides adduced only documentary evidence. Exts. A1 to A7 and Ext. B1 were marked on the side of the complainant and the opposite parties respectively. Thereafter, we have heard the respective counsel.

5. The points that arose for consideration are as follows :

1. Whether the complainant is entitled to get replacement of the handset under dispute from the opposite parties?

2. Compensation and costs, if any?

6. Point Nos. i. and ii. :- The 1^st opposite party admitted that they had sold the disputed handset to the complainant. Ext. A1 is the tax invoice dated 25/01/2010 and Ext. A2 is the details of the handset. The 2^nd opposite party contended that they are only the service provider and they have no responsibility, since the handset was sold by the 1^st opposite party. The handset has been manufactured by M/s. Research In Motion Singapore Pvt. Ltd. Both the opposite parties contend non-joinder of necessary parties. Admittedly the 1^st opposite party, the dealer is in the party array, there is privity of contract between the manufacturer and the 1^st opposite party. Therefore, we are of the view that non-joinder is not fatal in this case.

7. Both the opposite parties allege that the defects were caused due to liquid damage due to the mishandling of the handset by the complainant. Exts. A4 and Ext. B1 are one and the same document. Which is the photograph taken at the time of inspection of the disputed set which shows liquid damage. Ext. A5 is the copy of lawyer notice.

7. The opposite parties admit that the gadget under dispute is suffering from defects. There is no dispute that the defects have been occurred beyond the period of warranty. To substantiate the contention of the opposite parties, they submitted Ext. B1 inspection report, seemingly which has been prepared by service experts of the manufacturer themselves. The unilateral report of the manufacturer is in admissible in evidence, since the opposite parties did not take steps to prove the same. There is no other evidence before us to prove that the defects of the handset were occurred due to the improper use by the complainant. In the absence of any independent evidence, we are of the opinion that the complainant is entitled to get replacement of the disputed gadget. Eventhough the manufacturer is not a party to this proceedings. The 1^st opposite party, the dealer is liable to replace the handset with a new one to the complainant.

8. In the facts and circumstances of the case, we are not ordering any compensation. Nevertheless, the complainant is entitled to get costs of the proceedings from the opposite parties. Since, they ought to have taken steps to settle the dispute at the very outset.

9. Accordingly, we partly allow the complaint and direct as follows :

1. The 1^st opposite party shall replace the mobile phone under dispute with a new one of the same description and price according to the choice of the complainant with fresh warranty. In that event, the complainant shall handover the gadget under dispute to the opposite parties simultaneously.

2. The 1^st and 2^nd opposite parties shall jointly and severally pay Rs. 1,000/- as litigation costs to the complainant.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order.

Pronounced in open Forum on this the 29^th day of November 2011.

Sd/- C.K. Lekhamma, Member. Sd/- A. Rajesh,President.

Sd/- Paul Gomez, Member.

Forwarded/By Order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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