Andhra Pradesh

Chittoor-II at triputi

CC/48/2017

P.MuniSekhar, S/o Late Krishnaiah - Complainant(s)

Versus

E.Mobiles, Rep. by its authorized person - Opp.Party(s)

V.S.Venkat

31 Mar 2018

ORDER

         

 

                                                                                                Filing Date: 06-10-2017                                                                                                               Order Date: 31-03-2018

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, CHITTOOR AT TIRUPATI.

Present: - Sri. M.Ramakrishnaiah, President

                                                       Smt. T.Anitha, Member

 

SATURDAY THE THIRTY FIRST DAY OF MARCH, TWO THOUSAND AND EIGHTEEN

 

C.C.No.48/2017

Between

P.Munisekhar, S/o. Late Krishnaiah,

Door No. 20-3-1/8C6/1,

Sivajyothi Nagar, Tirupati,

Chittoor District, Andhra Pradesh – 517001.                            … Complainant

 

And

1. E. Mobiles,

Rep. by its Authorized Person,

Anjaneya Infrastructure Project No. 38 and 39,

Soukya Road, Kacherakanahalli,

Hoskote Taluka, Banglore Rural District,

Bangalore – 560067,

Karnataka – India.

 

2. SV Cellular,

Rep. by its Authorized Signatory,

Shop No.111, Central Park,

Tilak Road, Tirupati – 517501.                                     … Opposite parties

 

         This complaint coming on before us for final hearing on 15.03.2018 and upon perusing the complaint, written version, written arguments of the complainant and opposite parties and other relevant material papers on record and on hearing of             Sri. V.S.Venkat, counsel for the complainant and opposite party No.2 is party in person and opposite party No.1 is remained exparte having stood over till this day for consideration, the Forum made the following.

 

ORDER

DELIVERED BY SRI. M. RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

        This complaint is filed under section 12 of Consumer Protection Act, 1986 by the complainant for the following reliefs: 1) to direct the opposite parties to refund Rs.6,999/- towards cost of the cool pad handset 2) to direct the opposite parties to pay Rs.50,000/- towards damages and compensation for deficiency in service, for mental agony and for a loss in business, suffered by the complainant and 3) for costs of the litigation.

         2. The brief averments of the complaint are:   that the complainant purchased the cool pad Mega 2.5D Royal Gold Handset for Rs.6,999/- on 18.09.2016  through Amazon from opposite party No.1 with warranty for one year from the date of purchase. That in the middle of the year the handset gave trouble and not functioned properly. Therefore, the complainant approached opposite party No.2 and handed over the mobile handset on 29.07.2017 for repairs under acknowledgment. The opposite party No.2 stated that there is soft ware problem in the mobile and it will be rectified and given back within a week. But in spite of several demands opposite party No.2 did not deliver back the handset till today and the new handset is not provided due to which the complainant sustained loss in his business for want of net relations and social media contacts. That on 26.08.2017 when the complainant made demand, the opposite party No.2 did not give proper response and postponing the issue. Thus there is deficiency in service on part of the opposite parties. The complainant got issued legal notice on 28.08.2017 to both the opposite parties claiming refund of cost of the handset and also claiming damages at Rs.50,000/-. Notice of opposite party No.2 was returned with an endorsement “Addressee Left” so complainant sent another notice on 06.09.2017 to opposite party No.2 and same was also returned with an endorsement “Intimated Notice”. Both opposite parties maintained silence. Hence the complaint.

       3. opposite party No.1 remained exparte.

       4. Opposite party No.2 filed his written version denying the Para wise allegations in the complaint but admitted that opposite party No.2 is an authorized service centre and further contended that opposite party No.2 is unnecessary party to the proceedings, that by the time the handset is handed over to the opposite party No.2 it was badly spoiled due to watering. The complainant also admitted the same while handing over the handset to opposite party No.2 and requested to opposite party No.2 to rectify the problem. Only at the request of complainant the opposite party No.2 received the mobile on 29.07.2017 stating that it will take time to rectify the problem for which the complainant also agreed.

        The opposite party further stated that with great difficulty the problem was rectified and intimated the same to the complainant through phone. The complainant dodging to take back the mobile for the reasons best known to him. That the opposite party No.2 sent mail to complainant on 09.09.2017 informing that the device is made ready for delivery, but the complainant did not take back the mobile “Cool Pad” and filed the complaint. The transaction is between complainant and opposite party No.1 only the complainant, as an eye wash got issued notice and got managed the postal authorities not to serve the same on opposite party No.2 for the purpose of filing the false complaint. The opposite party No.2 further stated that on contacting opposite party No.1 he is ready to provide  a) repaired  handset along with three months extra warranty b) to give upgraded model of cool pad – Cool 1 (3GB Ram) or  c) to refund the cost of the mobile in a sum of Rs.6999/-. It was also informed to the complainant after contacting the opposite party No.1. The complainant also knows well about the offers made by opposite party No.2.There is no deficiency in service on part of the opposite party No.2.  The complainant intentionally not made the manufacturer as party to the proceedings as such the complaint is bad for non-joinder of unnecessary party and prays the forum to dismiss the complaint with costs.

          5. The complainant filed his evidence on affidavit as PW-1 and got marked Ex:A1 to A9. The opposite party filed his evidence affidavit as RW-1 and got marked Ex:B1 and B2. Both the parties have filed their respective written arguments which are part and parcel of the record.

        6. Now the points for consideration are:-

1.  Whether there is any deficiency in service on part of the opposite parties 1 and 2?
2. Whether non-joinder of the manufacturer as party to the proceedings, is fetal to the case of the complainant?
3. Whether the complainant is entitled for the relief sought for?
4.   To what relief ?                   

        7.Point No (i):-  to answer this point it is the burden lies on the complainant. In order to establish that there is deficiency in service on part of the opposite parties, the complainant contending that after purchase of the cool pad mobile through Amazon from opposite party No.1 within a year, the mobile gave troubles and it was not functioned properly. Therefore he approached the opposite party No.2 who is an authorized service centre on 29.07.2017 and handed over the handset to opposite party No.2 for repairs. That the opposite party No.2 while receiving the handset stated that it will be repaired and given back within a week but, till date opposite party No.2 did not hand over the handset.

        Similarly, the opposite party No.2 also failed to provide new set by replacing the old one keeping the mobile phone without repairs months together amounts to deficiency in service. He further stated that whenever the complainant approached opposite party No.2 through phone and in person opposite party No.2 used to postponing the issue and made heckled comments on complainant. Thus he caused hurt to the complainant therefore he is forced to file the complaint.

         8. The handset was purchased by the complainant on 18.09.2016 with a warranty of one year. But he failed to state exactly when the mobile started troubles, likewise he also failed to stated what is actual problem that was crept in the mobile, he also failed to specify what  business he is carrying on and what is the loss he sustained in the business for want of mobile phone simply stated that, he sustained huge loss in his business. As opposite party No.2 failed to rectify the mistake/problem in the mobile and also failed to handed over the mobile because of which he lost the net relations and social media contacts. It is evident on record that the mobile was handed over to the opposite party No.2 on 29.07.2017 for repairs. According to opposite party No.2, he made the mobile ready and also informed the same through phone as the complainant failed to take back the mobile, the opposite party No.2 got issued a mail to the complainant on 09.09.2017 informing the complainant that his device is made ready and requested the complainant to come and take delivery of the mobile, under Ex:B2 dt:09.09.2017. But the complainant without taking delivery of the mobile “Cool Pad” got filed the false and frivolous complaint.

         9. It is the admitted fact that the mobile Cool pad is with opposite party No.2 till date. Opposite party No.2 contending specifically that by the time he received the mobile for repairs it was badly spoiled due watering and the same was informed to the complainant. But only on the request of complainant, opposite party No.2 has taken the mobile for repair. That the problem in cool pad mobile of the complainant was rectified with great difficulty and informed the same to the complainant but, it is the fault on the part of the complainant in not taking delivery of the repaired mobile.

  Though the complainant received the mail under Ex:B2 instead of taking of the mobile, about 27 days after receipt of the notice he file the complaint with ill motive.

   In the written version of opposite party No.2 he has given three options to the complainant viz;

1. That opposite party No.2 is ready to hand over the repaired cool pad handset with three months extra warranty.
2. Opposite party No.2 is ready to provide an upgraded cool pad –Cool 1  (3GB Ram) and
3. He is ready to refund the cost of the mobile in a sum of Rs.6,999/-.

These contents of the opposite party No.2 were not denied by the complainant. It is also admitted fact that the complainant has filed the complaint on 06.10.2017  i.e. 27 days after receipt of the mail under Ex:B2 instead of taking back the repaired cool pad mobile.

        10. Opposite party also re-iterated his stand that he is ready to fulfill either of the 3 (three) above options. During the arguments also he stated that he is ready to either hand over the repaired mobile set or to refund the cost or to replace with an upgraded version of same mobile for which the complainant did not agree and insisted for compensation.

       When the complainant himself sought the relief of refund of Rs.6,999/- towards the cost of the mobile he cannot give go by to the said relief. Since the complainant failed to add the manufacturer of the mobile phone as party to the proceedings and also as he failed to establish that there is manufacturing defect in the mobile phone, replacement of mobile phone cannot ordered. Similarly since the complainant failed to establish what is the business he is doing and what is the quantum of loss he sustain in the business for want of the mobile phone in question, the alleged loss in business cannot be accepted under the above circumstances we are of the opinion that, since opposite party No.2 is also offering the cost of the mobile in a sum of Rs.6,999/-  it is just and proper to direct the opposite parties 1 and 2 to refund the cost of the mobile only, as the complainant has failed to establish the deficiency in service on part of the opposite parties. Accordingly this point is answered.

                     11.Point No(ii):-   to answer this point, it is to be proved by the complainant that there is manufacturing defect in the mobile he cannot seek replacement of new phone, in the place of repaired mobile. But the complainant failed to prove that the cool pad hand set was suffering from manufacturing defect but claiming new phone of the same company in the place of existing handset having failed to add manufacturer as party to the proceedings. So this relief could not be accepted as the non-joinder of necessary party is fetal to the case of complainant. Accordingly this point is answered. 

          12.Point (iii):-    to answer this point it is pertinent to state that reliefs sought by the complainant are to be noted here;

                i) to direct the opposite parties 1 and 3 to refund Rs.6,999/- towards cost of the cool pad handset. This is the first relief in his complaint. In order to satisfy this relief opposite party No.2 on consultation with opposite party No.1 (according to opposite party No.2) stating that,

        ii) he is ready to return the repaired cool pad handset with three months extra warranty or, to ready to provide upgraded mobile cool pad –Cool 1 (3GB Ram) or

        iii)to refund the cost of the handset in a sum of Rs.6,999/- in spite of three options offered by the opposite party No.2, the complainant has filed the complaint ignoring the offers made by opposite party No.2. Considering the facts and circumstances and offerings made by the opposite party No.2. We are of the opinion that the complainant is entitled to the cost of mobile in a sum of Rs.6,999/- only as prayed for in the relief, and he is not entitled for other reliefs. Accordingly this point is answered.

        13.Point (iv):-    In view of our discussions on points 1 to 3 we are of the opinion that, in view of the offerings made by opposite party No.2 though the complainant failed to establish deficiency in service on part of the opposite parties 1 and 2, complaint is to be allowed in part .

          In the result, the complaint is allowed in part directing the opposite parties 1 and 2 jointly and severally to refund the cost of the mobile i.e. cool pad in a sum of Rs.6,999/- (Rupees six thousand nine hundred and ninety nine only) to the complainant within six (6) weeks from the date of receipt of copy of this order failing which, the amount of Rs.6,999/- shall carry interest at 9 percent per annum from the date of this order till realization. Complaint is dismissed in respect of other reliefs.

         Dictated to the stenographer, transcribed and typed by her, corrected and pronounced by me in the Open Forum this the 31^st day of March, 2018.

       Sd/-                                                                                                                           Sd/-

Lady Member                                                                                                            President

 

 

APPENDIX OF EVIDENCE

 

Witnesses Examined on behalf of Complainant/s.

 

PW-1: P. Munisekhar  (Chief Affidavit filed).

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1: K. Sathish (Chief Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits (Ex.A)	Description of Documents
	Served copy of Retail/Tax Invoice/ Cash Memorandum Dt: 18.09.2016 issued to complainant by the 1st opposite party.
	Original copy of Customer service order/Material receipt issued by 2nd opposite party. Dt: 29.07.2017.
	Office copy of 1st Legal Notice to both opposite parties. Dt: 28.08.2017.
	Office copy of 2nd Legal Notice to both opposite parties. Dt: 06.09.2017.
	Postal receipts 2 in number of both opposite parties in original.
	Returned 1st postal cover with an endorsement “Addressee Left” of No.2 of the opposite party. Dt: 31.08.2017.
	Returned 2nd postal cover with an endorsement “ Intimation Notice and Door Locked” of No.2 of the opposite Party. Dt: 14.09.2017.
	Original copy of LG K520 G4 STYLUS 2 Brown mobile phone purchased bill issued by the Bajaj Electronics, Tirupati. Dt: 08.09.2017.
	Purchased Mobile box in empty (Cool pad Mega 2.5D) produced by the complainant.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

Exhibits (Ex.B)	Description of Documents
	True copy of Customer Service Order/ Material Receipt Cum Entry Level Service Registration Form. . Dt: 29.07.2017.
	Photo copy of E-mail proof for Intimating to complainant regarding the   service was completed and for collecting the mobile. Dt: 09.09.2017.

 

 

                                   Sd/-

                                                                                                             President

// TRUE COPY //

// BY ORDER //

 

 

Head Clerk/Sheristadar,

            Dist. Consumer Forum-II, Tirupati.

 

 

Copies to:  1) The Complainant, 

                  2) The Opposite parties 1 and 2.