BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 124/2008 Filed on 04.06.2008

Dated : 30.12.2008

Complainant:

Vipin Chandran.C, Aayilliam,T.C 48/396(1) NRA-64, Paravankunnu, Ambalathara, Poonthura P.O, Thiruvananthapuram – 26.

Opposite party:

The Mobile Store, Essar Telecom Retail Ltd., 2/3250, Opposite LIC Building, Pattom, Thiruvananthapuram.

This O.P having been heard on 01.12.2008, the Forum on 30.12.2008 delivered the following:

ORDER

SMT. S.K.SREELA: MEMBER

The brief facts giving rise to this complaint are that the complainant, who is a student of MBBS, Medical College, Thiruvananthapuram, had purchased a Nokia mobile phone from the opposite party on 24.12.2007 by paying an amount of Rs. 12,999/-. The phone had a guarantee for one year. From the date of purchase itself, the phone had network complaint along with the problem of non-receipt of incoming calls. The complainant took the phone to the opposite party and as per the advice of the opposite party the complainant entrusted the phone for repairing with their authorized service centre and even after that the defects were not rectified. The complainant claims replacement of the phone along with compensation.

Opposite party remains exparte.

The complainant has filed affidavit in lieu of chief examination and on his side Exts. P1 to P3 were marked and the mobile phone in dispute has been marked as MO1. The complainant, PW1, has not been cross examined and hence his affidavit stands unchallenged.

The points that would arise for consideration are:-

1. Whether the mobile phone suffers from any defect?

2. Whether the complainant is entitled for any of the reliefs claimed from the opposite party?

Points (i) &(ii):- The purchase of Nokia with IMEI 358974011761602 by the complainant from the opposite party on 24.12.2007 by paying an amount of Rs. 12,999/- is proved by Ext. P1 issued by the opposite party. The complainant has sworn that the opposite party had assured one year replacement guarantee. The warranty card is also produced as Ext. P2. The complainant has alleged that the phone supplied was malfunctioning from the very day on which it was first put to use. The complainant has sworn that, from the date of purchase itself the phone started showing network complaint and also non-receipt of incoming calls. The complainant has further alleged that the defects were brought to the notice of the opposite party and as per their advise it was taken to their authorized service centre by the end of March 2008 and the defects were not rectified by them and again as per the advice of the opposite party the complainant took the phone to Nokia service centre and they also returned the phone without curing defects. Ext. P3 is the service job sheet dated 29.04.2008 of Nokia phone of the complainant with IMEI No. 358974011761602 wherein the fault reported by customer has been noted as Cellular access poor reception/bad receiving. As per the job sheet, the defect has arisen well within the period of warranty. According to the complainant, the defects still persist. The allegations in the complaint are not challenged by the opposite party. The deposition of the complainant stands uncontroverted as none appeared and contested for the opposite party despite service of notice. Moreover, when the opposite party has not contested the case or ever cared to appear before the Forum to deny the allegations levelled against them, we have no difficulty to hold that the allegations in the complaint are true. On the basis of evidence brought on record by the complainant the pleading that the mobile phone supplied to the complainant is defective has been proved conclusively. The very fact that the mobile phone developed defects within the warranty period and had to be taken several times to the dealer is enough to hold that the mobile phone had defects. It is the responsibility of the dealer to carry out the terms of the warranty and in turn make the necessary arrangements to fulfil their obligations under the warranty. The opposite party cannot evade its liability. The opposite party, dealer, has brought the equipment from the manufacturer and sold it to the complainant on profit. The fact that the complainant has suffered due to defective phone is established. Hence the opposite party is liable to compensate the complainant.

As per the terms and conditions printed over leaf of Ext. P1, it has been stipulated that 'goods once sold will not be exchanged, replaced or taken back'. This itself is a violation of the Government Order. As per rules, bills should not carry such conditions. Hence we direct the opposite party not to issue bills hereinafter carrying the condition “Goods once sold will not be taken back or exchanged” as it violates G.O No. 60/07 FCS&CA dated 03.11.2007. The 3^rd condition states that subject to Mumbai jurisdiction.

It is well known and well settled by now that parties by mutual consent cannot confer jurisdiction upon a particular court when such court lacks inherent jurisdiction. So far part of cause of action having been arisen within the territorial jurisdiction of District Forum, Thiruvananthapuram, it will not make any difference when the jurisdiction has been conferred to a particular court.

In the light of the above discussions it is found that the mobile phone has become defective during warranty period and the failure of the opposite party in not attending to the repair and after sales service in time inspite of various complaints by the complainant is a gross deficiency in service in the manner and nature of performance on the part of the opposite party resulting loss to the complainant. When the opposite party has not disputed before the Forum that the mobile phone supplied to the complainant was defective, there is no necessity of following the procedure laid down in Sec. 13(1) of the Act. The complainant is found entitled for either replacement of the mobile phone or refund of the sale price paid. Obviously, the improper functioning of the phone would have caused loss to the complainant, it is practically impossible to bring out in evidence the actual monetary loss, inconvenience and mental sufferings caused to the complainant. Considering the facts and circumstances of the case, we find that an amount of Rs. 2000/- would be reasonable to compensate the same. The complainant is also found entitled for an amount of Rs. 500/- towards costs of the proceedings.

In the result, the opposite party shall replace the defective MO1 mobile phone with a defect free same model, new mobile within a period of one month failing which the opposite party shall refund Rs. 12,999/- (Rupees twelve thousand nine hundred and ninety nine) with 9% interest from the date of order to the complainant. The opposite party shall also pay to the complainant an amount of Rs. 2,500/-(Rupees two thousand five hundred only) towards compensation and costs. The opposite party, on compliance of the above order, shall take back the MO1 from the Forum.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 30^th December 2008.

S.K.SREELA : MEMBER

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER

C.C. No. 124/2008

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Vipin Chandran.C

II COMPLAINANT'S DOCUMENTS :

P1 - Original of tax invoice dated 24.12.2007 for Rs. 12,999/-.

P2 - Warranty card.

P3 - Photocopy of work order dated 29.04.2008.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT