IN THE CONSUMER DISPUTES REDRESSAL FORUM, KOTTAYAM

Dated this the 30^th day of November, 2018

Present: Sri. P.SatheeshChandran Nair, President

Sri. K.N. Radhakrishnan Member

Smt. Renu.P.Gopalan, Member

CC No. 271/2017 (Filed on 12/12/2017)

Between:

          Jayakumar V.N.

          S/o. Narayanan,

          Variyathu Kadavil House,

          Kumarakom,

          Kottayam – 686 563.                                           ……….Complaint

          (Adv. Joshi Cheepunkal)

And :

1. Proprietor,

Doctor Fone Services,

2^nd Floor,

Mulavana Building,

G.S. Road, Kottayam – 686 001.

(Adv. Rohith Nair)

       2) Coolpad Communications

          Private Limited Shop No. A1 & A2,

          Plot No. 109/110, Tejas Apart

          Sector – 44, Behind H.P. Petrol

          Pumb, Nerul Seawood (West),  New Mumbai,

          Maharashtra – 400706.                                     ……….Opposite parties

O R D E R

Sri. P.SatheeshChandran Nair, President

          The case of the complainant is as follows.

          On 09/09/2017 the complainant booked a new mobile phone through the online website of www.amazon.in from the second opposite party and on the same day amount Rs.10,999/- (Ten thousand nine hundred and ninety nine only). The amount was transferred from the account of the complainant as the price of the phone.  The model of the mobile phone is Coolpad, C 103.                   On 13/09/2017 the phone was received by the complainant through post.          The mobile phone became defective within one months of date of purchase.   The defect was that while the mobile phone is working some lines are shown in to the display and its speakers are also not working and also some other problems which shows its basic defects.  The vendor and the company offers one year guarantee for the mobile phone.  It is guaranteed by the company that if any defect occurs within one year it will be rectified free of cost.  So the vendor and the company has the obligation to service or repair the mobile phone free of cost.         When the complaint noted the defect ie. on 15/10/2017 the complainant approached the second opposite party through their customer care number and wanted to cure the defect and register the complaint.  On 04/11/2017 the second opposite party directed to the complainant to approach to the first opposite party and on the same day the complainant handover the mobile phone to the first opposite party. The first opposite party is the authorised service center of the second opposite party.  So they have the legal duty to cure the defect as stated in the warranty card. They have to repair the mobile phone free of cost.  But they miserably failed to do their legal duty.

          On 10/11/2017 the complainant approached the first opposite party for the return of the mobile phone, but the first opposite party became very furious and they are abused the complainant and the second opposite party beliefs to the complainant that, the defect purely due to the defect in the manufacturing of the phone and it is send to their central service centre at Delhi.  On 18/11/2017 the first opposite party contacted to the complainant and directed to collect the phone.  On the same day the complainant reached the office of the first opposite party and the first opposite party showed his phone, but the complainant found that cover of the phone was damaged and the old mistakes are not cured.   It is a deficiency in service which put the complainant in to a goal deal of inconvenience expenses humility and mental agony.  Hence, this complaint for issuance of a new mobile phone, compensation, cost etc.

          The notices were served with the opposite parties.  The notice of 2^nd opposite party returned unserved stating that “Intimation”: to the party.  Hence it was treated as deemed service and opposite party 2 set ex-parte.

          The opposite party 1 entered appearance and filed their version contenting as follows.

          The complaint is not maintainable either in law or on facts.  The 1^st opposite party is not an authorised service centre of the second opposite party.  The averments mad in para 2 of this complaint is not known to this first opposite party.  The complaint is bad for non-joinder of necessary parties.  As per the facts stated in the complaint, the vendor is not made a party in the comcplaint.  The authorized service centre of the second opposite party is not made a party in the complaint.  Hence the complaint is liable to be dismissed in limine. The fist opposite party is only the service provider of the HCL Info systems Ltd.  The first opposite party is not an authorized service centre of second opposite party.  Thus first opposite party does not have any legal duty towards the complainant.

          The para 6 is incorrect, the first opposite party had not abused the complainant, no such incident happened.  It is only a fabricated allegation created in favour of complainant.  The first opposite party has only followed the instructions given by the HCL Info systems Ltd.  The HCL info systems Ltd. has contractual relationship between the second opposite party.  As per the directions given by the HCL Info systems Ltd. The first opposite party had sent the mobile phone to the authorized service centre of the second opposite party named Mars E-Services.  HCL Info systems Ltd is not made as a party in the complaint.

          The averments in the para 7 is not correct.  The first opposite party acted in good faith.  There is no consumer relationship existed in between the first opposite party and complainant.  Hence this complaint may be dismissed with costs.

          According to the first opposite party, there is no consumer relationship existing between the first opposite party and the complainant.  It is further contented that this complaint is false, frivolous, vexatious and also bad for non joinder of necessary parties.  Therefore opposite party prayed to dismiss the complaint with cost.

          On the basis of complaint, version and records before us, we framed following issues for consideration.

Points for consideration

1. Whether case is maintainable before the Forum?
2. Whether there is any deficiency in service from the side of the opposite parties?
3. Relief and costs?

The evidence of this case consisting of the proof affidavit filed by the

complainant in lieu of chief examination and examined him as pw1.  Through pw1 Ext.A1 and A2 were also marked. 

          Ext. A1 is the copy of warranty statement.  Ext.A2 is the service job sheet issued by the first opposite party. 

          On the other side the proprietor of the first opposite party, one Dani K.N. who filed a proof affidavit in lieu of his chief examination and examined him as Dw1.  Through Dw1 Ext.B1 to B3 were also marked. 

          Ext.B1 is the copy of service job sheet dtd.04/11/2017.  Ext.B2 is the copy of senders copy issued by courier service.  Ext.B3 is the copy of delivery chalan.  (subject to objection)

          After the closure of evidence, we heard both sides.

Point No.1

          The opposite party 1 seriously condented that the case is not maintainable before this Forum either in law or on facts.  When we peruse the evidence of this case, it is revealed that the complainant he who purchased the mobile phone by paying Rs.10,999/- to the second opposite party through an online transaction. It is also proved that the said amount was transferred to the account of the opposite party 2.  It is also evident to see that opposite party 1 is the authorised service person of opposite party 2 manufacturer.  Therefore, we can come to the conclusion that the complainant is the consumer of opposite parties and opposite parties are the service providers of the complainant.  Hence Point No.1 is found in favour of the complainant.

Point No.2 and 3

          The case of the complainant is that he purchased the mobile phone through online transaction by paying Rs.10,999/- to opposite party 2.  It is deposed that the said mobile phone has became defective even within 1 month of purchase.  According to him, there was a warranty between the complainant and opposite parties related to the said phone.  In order to substantiate this contention, pw1 produced and marked warranty statement as Ext.A1 and service report as Ext.A2.  As per Ext.A2 it is to see that defect of the phone is “display line, sometimes speaker not working”.  Ext.A3 is the online bill, which shows that complainant paid Rs.10,999/- to opposite party through online transaction.  When Pw1 was cross examined by opposite party 1’s learnal counsel elaborately, nothing brought out to disbelieve the complainant’s case.  . Pw1 answered that the said  phone having a warranty of one year and to prove to this fact is ready and willing to produce the bill.  Ext.A3 is the bill which shows the said remittance.  The opposite party has not rebutted the relevancy of Ext.A2 at the time of trial.     On the other side opposite party 1, proprietor of the service centre who filed the proof affidavit in lieu of his chief examination and marked Ext.B1 to B3 in his favour. 

          When we go through the cross examination portion of Dw1, we can see that opposite party 1 is the original service centre of opposite party 2.  In cross Ext.B1 show to the witness and asked “CXv {]Imcw 04/11/2017 emWv hmZn op 1  mobile phone   Gev]n-¨Xv  (Q) (A) AsX.  Ext. B1   Sn mobile phone atä-sX-¦nepw Øm]-\-¯n sN¿p-¶-Xn-\mbn Gev]n-¨-Xmbn ImWp-¶pt­m (Q) (A)  CÃ.   Witness adds.....customer tdmSv hni-Z-ambn FÃm Imcy-§fpw ]dªv a\-Ên-em-¡p-¶Xv front office staff BWv.  customer sS approval In«n-bn-«mWv mobile phone R§Ä Gsä-Sp-¡p-¶-Xv.  ]n¶oSv AXv service  \mbn Ab-¡p-I-bmWv sN¿p-¶Xv.  Front office staff Bb Pnj-bmWv FÃm hnh-chpw customer tdmSv ]dªv a\-Ên-em-¡n-b-Xv.  Ext.B1 terms and conditions Â, C{]-Imcw asämcp Øm]-\-¯n-te¡v Ab-¨p-sIm-Sp-¡p¶ hnh-csam¶pw ]d-ªn-«n-Ã"'.

          In the light of above testimony it is so clear to  see that the opposite party 1 who received the phone for service and the said phone is still in their possession.  The opposite party 1 has not succeeded to prove the justification for the non repairing of the mobile within the reasonable time.  It is also to be see that when the said phone is entrusted to opposite party 1 the said mobile phone was having warranty.  Though opposite party 1 pleaded that he is not the authorised service centre of opposite party 1, the act approach and the keeping of the mobile phone all are against his contention.

          In the light of the above evidence it is proved that opposite party 1 the service centre committed grave deficiency in service for the discharge of their duty as an authorised service centre of opposite party 2, it is also find that opposite party 1 is the sales/service centre and 2^nd opposite party is the manufacturer of the phone.   Therefore opposite party 1 and opposite party 2 are severally and jointly liable for the complainant.  Therefore, point No.2 and 3 found in favour of the complainant.

In the result, we pass the following Orders.

1. The opposite parties are hereby directed to issue the new mobile phone to  the complainant (same model) within one month of receipt of this Order.  If fails, the opposite parties are directed to refund the cost of                       mobile phone Rs.10,999/- to the complainant with 10% interest from the date of file of this case ie. 12/12/2017.
2. The opposite parties are also directed to pay the compensation of Rs.3,500/- along with the cost of Rs.1,500/- to the complainant with 10% interest from the date of receipt of copy of Order.

Dictated to the Confidential Assistant, transcribed and typed by her,

corrected by me and pronounced in the Open Forum on this the 30^th day of

November, 2018.                                                                                                                                                                          Sd/-

Sri. P.SatheeshChandran Nair, President

Sri. K.N. Radhakrishnan Member                    Sd/-  

Smt. Renu.P.Gopalan, Member                             Sd/-    

Appendix

Witness from the side of complainant.

Pw1 – V.N. Jayakumar

Exhibits on the side of complainant

A1 - copy of warranty statement. 

A2 - service job sheet issued by the first opposite party. 

A3 – invoice dated.09/09/17

Witness from the side of opposite party

Dw1 – Dani K.N.

Exhibits on the side of opposite party

Ext.B1 - copy of service job sheet dtd.04/11/2017. 

Ext.B2 - copy of senders copy issued by courier service.

 Ext.B3 - copy of delivery chalan

                                                                                                By Order

                                                                                      Senior Superintendent