DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the 10^th day of April, 2023

Present : Sri.Vinay Menon V., President

             : Smt.Vidya A., Member                       

             : Sri.Krishnankutty N.K., Member         Date of filing: 31/01/2022   

CC/17/2022

1. Ajith.P.H, Pulakkal House

    Kurudikkadu, Kanjikode West (P.O)

Palakkad – 678 623                                                -         Complainant

(By Adv. M/s Radheesh Gopalan & Jishnu Dev)

                                                           V/s

1. Jaina India Private Ltd.

    D-170, Phase-I, Okhla Industrial Area

New Delhi – 110 020

2. The Proprietor

    Brook Mobiles, Center Point Building

    Mettuppalayam Street

Palakkad – 678 001                                                 -         Opposite parties

(1^st and 2^nd opposite parties Ex-parte)

O R D E R

By Smt. Vidya.A, Member

1.  Pleadings of the complainant in brief

      The complainant visited the 2^nd opposite party’s mobile shop for purchasing a new model mobile phone having FM radio facility.  The 2^nd opposite party showed the product ‘KARBONN K451 Power model’ mobile marketed and serviced by 1^st opposite party and explained the features available in the phone.  The 2^nd opposite party made him believe that the phone has a wireless FM radio and does not need a headphone to listen it.  As per the feature description, this model phone has wireless FM radio with recorder facility and in the package also it is printed as wireless FM.  Believing the 2^nd opposite party’s words, the complainant purchased the mobile on 18/10/2021 by paying an amount of Rs. 1,550/-

          After purchasing it, he noticed that the mobile does not have the facilities offered by the opposite parties.  The mobile needed a headphone connection as antenna to listen FM radio.  On noticing it, the complainant immediately approached the 2^nd opposite party and informed that the said feature is not working in this mobile phone.

          But the 2^nd opposite party refused to lodge the complainant and told that as per the terms & conditions with the manufacturer, the 2^nd opposite party has only to sell the product and no other responsibility.  After sale service has to be done by the concerned service centre.

          The complainant sent e-mails to both opposite parties requesting them to replace the mobile with a new one having all the features or to refund the money.  On receiving the complaint, the 2^nd opposite party called and assured that they will contact the 1^st opposite party and resolve the complainant’s issue.  But they did not do anything.

          So the complainant approached this Commission for an order directing the opposite parties

1. To replace the defective mobile handset with a new one without any manufacturing defect which has all the features as offered in the packet or to refund its price.
2. To pay Rs. 50,000/- as compensation for the mental agony and distress suffered by the complainant due to deficiency in service on the part of opposite parties.
3. To pay the cost of the litigation and such other incidental reliefs which the Commission finds fit to grant.

2.   Notice was served on 1^st opposite party through their e-mail.  But 1^st opposite party did not appear or file version.  2^nd opposite party also did not appear before the Commission even after receipt of notice.  Hence both opposite parties were set ex-parte.

3.   Complainant filed proof affidavit and Exts. A1 to A5 marked from his side and evidence closed.

4.   Main points to be considered are

1. Whether there is any deficiency in service/unfair trade practice on the part of opposite parties?
2. Whether the complainant is entitled to the reliefs claimed?
3. Reliefs as cost & compensation.

5.  Point No: 1

      We have perused the affidavit and documents produced by the complainant.  Ext. A1 is the ‘Tax invoice’ issued by 2^nd opposite party showing the purchase of mobile phone ‘KARBONN K 451 power’ for an amount of Rs. 1,550/-

6.   The complainant’s grievance is that he purchased the mobile handset from the 2^nd opposite party on the assurance that the mobile has a wireless FM radio and does not need a head set to listen FM radio.  But after purchase, he noticed that it does not have the facilities offered in the description and in the packet of the mobile phone.  The mobile needed a headphone connection as an antenna to listen FM radio.

7.   The complainant produced the photo of the front and back side of package of the mobile handset which is marked as Ext. A3 & Ext. A4.  In Ext. A4, the description of the facilities available in the mobile shows “Wireless FM radio with recorder”.  Ext. A5 is the warranty card. 

8.   So it is clear that the opposite parties assured that the mobile handset marketed and serviced by 1^st opposite party and sold by 2^nd opposite party has the facility of “wireless FM radio with recorder”.  But on using, the complainant found that it does not have the facility offered and lodged complaints with opposite parties.  Ext. A2 is the copy of the complaint written via e-mail to the opposite parties.

9.   The complainant’s contention is that on receiving the complaint, the 2^nd opposite party assured that they will contact the 1^st opposite party and resolve the issues of the complainant.  But the opposite parties did not do anything.

10. Even after the receipt of notice, the opposite parties did not appear before the Commission or file their version.  Hence the opposite parties are set ex-parte.  In the absence of any contra evidence, the evidence adduced by the complainant stands unchallenged.  So the complainant had proved a prima-facie case.

11. It is an unfair trade practice on the part of the opposite parties to market and sell a product which does not have the features offered by them.  The package of the mobile clearly shows that the mobile handset is having the features of ‘Wireless FM radio with recorder’.  But as per the complainant it is not having that facility.

          Even after complaining about it, the opposite parties did not replace the product or refund the amount.  It is a deficiency in service on their part.

          So there is deficiency in service and unfair trade practice on the part of the opposite parties in marketing and selling the product without the features as offered by them.  Point No: 1 is decided accordingly.

12.    Points 2 & 3

      The complainant, who is a regular listener of FM radio, purchased this mobile on the assurance of opposite parties that the product has wireless FM radio.  But it did not serve the purpose for which it was purchased.  So the complainant would have definitely undergone mental agony and distress in addition to the financial loss.  This made him file this complaint causing additional financial burden. 

          So the opposite parties are jointly and severally liable to compensate the complainant for that.

      In the result, the complaint is allowed.  We direct the opposite parties,

1. To refund Rs. 1,550/- being the price of the mobile handset with 10% interest from 18/10/2021 till realization.
2. To pay Rs. 10,000/- as compensation for their deficiency in service and unfair trade practice and
3. To pay Rs. 5,000/- as cost of the litigation.

The opposite parties shall comply with the directions in this order within 45 days of receipt of this order, failing which opposite party shall pay to the complainant Rs. 250/- per month or part thereof until the date of payment in full and final settlement of this order.

Pronounced in open court on this the 10^th day of April, 2023.

                                                                                            Sd/-

                                                                                    Vinay Menon V

                                                                               President                                              

                                                        Sd/-

              Vidya.A

                             Member   

                                                                                              Sd/-

                                                                                  Krishnankutty N.K.

                                                                                           Member

APPENDIX

Documents marked from the side of the complainant:

Ext.A1: Copy of the ‘Tax Invoice’ issued by the 2^nd opposite party dated

            18/10/2021.

Ext.A2: Copy of the complaint written via e-mail to 1^st opposite party dated

            19/10/2021.

Ext.A3: Photo of the package of the mobile handset (Back).

Ext.A4: Photo of the package of the mobile handset (Front).

Ext.A5: Warranty Card dated 18/10/2021 (Original).

Documents marked from the side of opposite parties: Nil

Witness examined from the complainant’s side: Nil

Witness examined from the opposite parties side: Nil

Cost- Rs. 5,000/-

NB: Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.