BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION:HYDERABAD
FA.NO.1028 OF 2005 AGAINST C.D.NO.136 OF 2004 District Forum, Prakasam at Ongole.
Between:
M/s.Nokia India Pvt. Ltd., Radison,
Hotel Commercial Plaza,
NH-8, Mahipalpur, New Delhi-37. Appellant/
Opp.party No.2
And
1. K.V.V.Lakshmi, Conductor,
APSRTC., Ongole. Respondent/
Complainant
2. Leela Krishna Enterprises,
Authorized Dealer in Electronics and
General, Trunk Road, Ongole. ..Respondent/
Opp.party No.1
Counsel for the Appellant : M/s Ambadipudi Satyanarayana
Counsel for the Respondents: - Respondents served.
QUORUM: THE HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.
SMT.M.SHREESHA, MEMBER.
AND
SRI G.BHOOPATHI REDDY, MEMBER.
MONDAY, THE FOURTH DAY OF AUGUST,
TWO THOUSAND EIGHT.
Oral Order:(Per Smt.M.Shreesha, Hon’ble Member)
***
Aggrieved by the order in C.D.No.136/2004 on the file of District Forum, Prakasam at Ongole, Opposite party No.2 preferred this appeal.
The brief facts as set out in the complaint are that the complainant purchased a Nokia 3310 Handset bearing No.351475601446668 and charger for Rs.3,500/- vide bill No.32 dated 18-4-2004 and was using the same since the date of purchase. While so on 21-6-2004 all of a sudden the phone had automatically gone to power-off position and though the complainant tried her best power to switch on the phone, it was not restored. She took the phone to the shop of opposite party No.1 on 21-6-2004 at 2.30 p.m. and opposite party No.1 repaired the same and restored the problem but the phone is not ringing and every call received by her were missed calls. Immediately she brought the said fact to the notice of the opposite party No.1 and handed over the set at the shop of opposite party No.1 on 21-6-2004 and obtained acknowledgement. The complainant stated that it is a clear software problem and covered by the conditions of warranty and by letter dated 21-6-2004 she requested opposite party No.1 to provide a new handset in the place of defective one. Opposite party No.1 informed her that he is only a dealer and on observing the defect, he has sent it to the manufacturer i.e. opposite party No.2 for checking the problem and also for replacement. The complainant submitted that opposite party service centre representative at first instance verified the cell phone and noted the problem as dropped in water but the phone never contacted water. The complainant submits that opposite party No.1 is selling problematic cell phones and playing tactics without sending the same to the manufacturing company for repairs, which is clear deficiency of service. Hence the complaint for a direction to the opposite parties to replace new Nokia Cell Phone in the place of defective set and also to pay Rs.5,000/- towards damages and Rs.1,000/- towards costs.
First opposite party filed counter and submitted that the warranty provided is a limited warranty and that he is not responsible for replacement or for payment of compensation and that the manufacturer is liable to replace it with article or pay compensation. He submitted that the Nokia Service Centre pointed out that the cell phone contained liquid damage and therefore is not covered by warranty, which is correct. He also submitted that the complainant did not take any steps to disprove the report given by Nokia Authorized Service Centre that the cell phone contained liquid damage. He further submitted that to each and every complaint by the complainant, they rendered service with utmost care and written letters to the complainant and her husband and the complainant has not chosen to file those letters and submitted that there is no deficiency in service and prayed for dismissal of the complaint.
Second opposite party filed counter and submitted that there is no transaction between them and the complainant. They stated that the letter of complainant dated 21-6-2004 levelled several allegations against opposite party No.1 only and the letter dated 5-2-2004 by complainant’s counsel to opposite party No.1 shows that the hand set was not sent to them and this itself proves that there is no deficiency in service on their part. He submitted that the complainant added opposite party No.2 in the cause title and in prayer portion after typing the complaint which shows the intention of the complainant not to proceed against them and later for technicality, they were added as party and submitted that there is no cause of action against them. They submitted that the complainant filed complaint against opposite party No.2 with all false and frivolous allegations and caused inconvenience to them an prayed to dismiss the complaint with costs.
Based on the evidence adduced i.e Exs.A1 to A13 and B1 to B11 and the pleadings put forward, the District Forum allowed the complaint in part directing opposite parties to supply new Nokia Cell Phone to the complainant in the place of defective one and further directed to pay compensation of Rs.500/- and costs of Rs.500/-.
Aggrieved by the said order, opposite party No.2 preferred this appeal.
The learned counsel for the appellant contended that the complaint does not fall within the definition of Consumer Dispute. He submitted that the complainant is not a consumer of the appellant and therefore the complaint is maintainable. He also submitted that there is no relationship between 1st opposite party and them and that opposite party No.1 is neither the authorized dealer nor distributor and they have nothing to do with the alleged transaction and therefore the District Forum ought to have dismissed the complaint against the appellant. They further contended that even as per Exhibits i.e. job sheet etc. the set was not handled properly and that liquid damage is not covered under the warranty and therefore the complainant is not entitled for replacement of the set and prayed to allow the appeal.
We have perused the material on record. The facts not in dispute are that the complainant purchased a Nokia 3310 Handset bearing for Rs.3,500/- on 18-4-2004 and on 21-6-2004 she brought the phone to opposite party No.1 at 2.30 p.m with a problem of automatically switching off problem and also non ringing of the phone and that she could not switch the power of the phone. It is the complainant’s case that it is a software problem and is covered under the conditions of warranty and since it is a defective set, opposite party No.1 is liable to provide a new set. It is the case of dealer, who is also opposite party No.1 damage to the problem was not covered under warranty conditions for the purpose of replacement. The complainant had not taken proper caution and care an the defect is due to liquid damage for which there is no warranty. It is the case of appellant/opposite party No.2 that there is no privity of contract between the complainant and appellant and that the set was not handled properly and ‘liquid damage’ is not covered under warranty and therefore, there is no deficiency of service on their behalf.
We observe from the record that the hand set was purchased on 18-4-2004 and within two months i.e. on 21-6-2004 the complainant had handed over the set to the dealer, opposite party No.1. The job card No.334, Ex.A7 is dated 21-6-2004 which clearly states that there is a sudden drop and there is ring tone power problem. We also perused Ex.A9, which is also dated 21-6-2004 with job sheet No.334 the only difference being that in action taken it is written found liquid damage and is not covered under warranty. The contention of opposite parties if it is liquid damage, it is not covered under warranty and the complainant has to pay for the parts has not been supported by any quotation or statement specifying the parts to be replaced or repaired together with the amounts that may be charged. Oppostie party No.2 in their counter relied on clause 7 of the limited warranty document and drew our attention to the said clause as follows:
Clause 7(a) of the said limited liability is reproduced below:
“The Consumer shall have no coverage or benefits under
this limited warranty if any of the following conditions is
applicable:
a) The Product has been subject to: abnormal use, abnormal
condition, improper storage, exposure to moisture or dampness
exposure to excessive
