KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 516/2016

JUDGMENT DATED: 10.04.2019

(Against the Order in C.C. 94/2012 of CDRF, Thrissur)

PRESENT : 

SRI. T.S.P MOOSATH                                                          : JUDICIAL MEMBER

SRI. RANJIT. R                                                                      : MEMBER

APPELLANT:

Shanavas, Proprietor, M/s Thrissur Nokia Care, T.C XIX/122/748, First floor, Achus Centre, Near Kerala Ice Factory, Poothole, Thrissur.

                              (By Adv. Saji. S.L)

                                                Vs.

RESPONDENTS:

1. Febin Ali, Puthiyaveettil House, Febin Villa, Friendship Road, Nadathara P.O, Thrissur-680 751.
2. Proprietor, Venu’s Digital Arcade, Kalathodu, Thrissur.

JUDGMENT

SRI. RANJIT. R: MEMBER

The appeal is filed by the 2^nd opposite party against the order in C.C. No. 94/2012 dated 30.05.2016 on the file of Consumer Disputes Redressal Forum, Thrissur by which the district forum directed the appellant and 1^st opposite party to return price of the mobile phone i.e; Rs. 6,200/- and also directed to pay Rs. 5,000/- as compensation and cost.

2.  The case of the complainant, in brief, is that he purchased a Nokia phone from the 1^st opposite party on 03.11.2010 for Rs. 6,200/- and on 19.11.2011 there occurred some defects in the phone and so the same was entrusted with the 2^nd opposite party, the service provider for service.  But they did not return the phone to him.  The same was returned only 01.12.2011 after the complainant the opposite party’s Delhi office.  But the defects were not cured.  Hence he filed the complaint before the forum. 

3.  The 1^st opposite party was set ex-parte.  The 2^nd opposite party filed version admitting the entrustment of phone for service.  The defect as per the job sheet was ‘battery charge less’ and since warranty period has expired, the 2^nd opposite party demanded battery cost and service charge from the complainant.  But he refused to pay for the same and hence the phone was returned to him on 19.11.2011 itself. 

4.  Evidence in the case consisted of proof affidavit in lieu of chief examination filed by the complainant and Exts. A1 to A3 marked on his side.  The phone was marked as MO1.  The expert commissioner filed the commission report and it was marked as Ext. C1.  Opposite party has filed affidavit, but no documents were marked on their side. 

5.  The lower forum on the basis of commission report and other documents found that mobile phone was having manufacturing defects and passed the impugned order.

6.  Heard both sides and perused the records. 

7.  The definite case of the appellant/2^nd opposite party is that they are only a service provider and the phone entrusted with them for repair and on inspection it was found that the battery is defective and it is to be replaced.  Since the phone was out of warranty they demanded cost of battery and service charge from the complainant.  But the complainant was not ready to pay any amount for the same and hence they returned the phone without repair.  The learned counsel for the appellant further contended that the defects noted by the expert commissioner are manufacturing defects and they being a service provider are not responsible for the same and order imposing cost and compensation to be paid to the complainant is highly irregular. 

8.  The complainant has no case that the 2^nd opposite party has received service from him.  Further there is nothing on record to show that the phone after service was returned to him only on 01.12.2011 as alleged by the complainant.  Admittedly the phone was entrusted with the appellant/2^nd opposite party for service on 19.11.2011.  The opposite party, on finding that the defect is in its battery and it is to be replaced, demanded battery cost and service charge from the complainant since it is out of warranty.  But he is not willing to give the same and according to the appellant/2^nd opposite party it was returned on 19.11.2011 without service.  There is nothing on record to disprove the same.  As per Ext. C1 report it is clearly mentioned that the mobile is having manufacturing defect.  For manufacturing defect the manufacturer as well as dealer is responsible for replacement.  The service provider cannot be fastened with liability for manufacturing defect. 

9.  The district forum without considering these aspects fastened liability on the 2^nd opposite party also and directed them along with 1^st opposite party, the dealer of the mobile phone to return the cost of the phone and also compensation.  There is also no finding regarding the deficiency in service on the part of the 2^nd opposite party.  The only finding is manufacturing defect and order fixing liability as against the 2^nd opposite party in this circumstance is unwarranted and is unsustainable and it is to be set aside.  We do so. 

In the result, the appeal is allowed.  The order of the district forum as against the 2^nd opposite party/appellant directing them to refund the price of the mobile phone and compensation is set aside as indicated above. 

Release the statutory amount of Rs. 5,600/- deposited by the appellant to them, on its application. 

Parties are directed to suffer their respective costs. 

T.S.P MOOSATH     :  JUDICIAL MEMBER

jb                                                                                                                                                         RANJIT. R    : MEMBER