Date of Filing      : 05.04.2019

                                                                                                                 Date of Disposal: 13.07.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION

THIRUVALLUR

 

 BEFORE  TMT. Dr.S.M. LATHA MAHESWARI, M.A.,M.L, Ph.D (Law)                 .…. PRESIDENT

                 THIRU. J.JAYASHANKAR, B.A, B.L.                                                           ..… MEMBER-I

                 THIRU.P.MURUGAN,B.Com.                                                                      ....MEMBER-II

CC. No.22/2019

THIS WEDNESDAY, THE 13th DAY OF JULY 2022

 

Mr.Mahaveeramanigandaprabhu, 

S/o.Late S.P.Gajendiran,

No.1/63, Bajanai Koil Street,

Sivanvoyal Village & Post,

Thiruvallur Talum & District.                                                            ……Complainant.

 

                                                 //Vs//

1.The Managing Director,

    Lava International Limited,

    A-47, Sector-58,

    Noida-201301, Uttar Pradesh, India.

 

2.The proprietor,

    LAVA/XOLA:Vishwin Solutions,

    No.52, Shop No.S1, 2nd Floor,Tajaneelu Towers,

    Oragadam Road, Venkatapuram,

    Ambattur (Near Rakki Hospital), Chennai -53.

 

3.The Proprietor,

    R.R.Mobiles,

    No.173, C.T.H.Road,

   Avadi, Chennai -600 054, Thiruvallur District.                ..........Opposite parties. 

 

Counsel for the complainant                                          :   Mr.A.R.Poovannan, Advocate.

Counsel for the 1st opposite party                               :   Mr.S.Muthukumaravel, Advocate. 

Counsel for the 2nd&3rd Opposite parties                : exparte

                         

This complaint is coming before us on various dates and finally on 20.06.2022 in the presence of Mr.A.R.Poovannan counsel for the complainant and Mr.S.Muthukumaravel counsel for the 1st opposite party and 2nd & 3rd opposite parties remaining exparte and upon perusing the documents and evidences of both sides, this Commission delivered the following: 

ORDER

PRONOUNCED BY THIRU. J.JAYASHANKAR, MEMBER-I

 

This complaint has been filed by the complainant u/s 12 of the Consumer Protection Act, 1986 alleging deficiency in service against the opposite parties in selling defective mobile along with a direction to direct the opposite parties to exchange with a new LAVA Z70 BLACK mobile or to pay a sum of Rs.7050/- towards the cost of the mobile and to pay a sum of Rs.50,000/- towards damage and loss suffered by the complainant and to pay a sum of Rs.25,000/- as compensation for mental agony, hardship strain, inconvenience, caused to the complainant and to pay a sum of Rs.10,000/- towards cost of this proceedings. 

Summary of facts culminating into complaint:-

 

Present Complaint was filed for the reliefs mentioned above. The Complainant is a practising Advocate and for the purpose of contacting his client, mail communication and e-court service in connection with his profession decided to purchase a mobile Phone and on 15.6.2018 he purchased a LAVA Z70 BLACK mobile bearing Model No. LAVA  Z70 BLACK: IMEI Nos. 911592501324812 & 911592503267316: color: Black, Serial No.Z70418AA015001 from the Third Opposite Party which was manufactured by the first Opposite Party for a cost of Rs.7050/- and the same was covered by service warranty for one year from the date of purchase.  The said phone was working well for one week and later it started giving trouble and it had no sound and poor sound, disconnectivity of sound with other problems and sound cracking and then became unusable within the warranty period of one year. Therefore the complainant approached the authorised LAVA mobile service centre i.e. the second opposite party for repairs on 16.7.2018, 13.8.2018 and 2.2.2019 for which the second opposite party assured to rectify the problem within a day or two. Upon receiving the said phone the same issue was repeated. Further the second opposite party had simply format the mobile phone and returned without any repair by deleting all the data and contacts due to which the complainant was not able to attend his professional calls and personal calls without mobile in which the net connection was available due to which some clients were lost and caused lapse in schedule, financial problem due to manufacturing defect in the said mobile phone.  Further the complainant was facing complexity to plan and contacts persons despite of the gross deficiency in service and manufacturing defects in the said equipment. For the reasons aforesaid, the complainant called the first opposite party through phone and lodged a complaint against the said problem and the same was registered in complaint ref No: 350490 on 25.3.2019 for which the first opposite party promised to solve the problem shortly in 24 hours through phone. The complainant waited for a day but the first opposite party words also turned untrue. Further from the aforementioned facts it would be clear that the said device is defective and the said LAVA Z70 BLACK phone has failed to perform in keeping with the reasonable standards that are expected of similar phones. Thereafter there was no response from the first opposite party and the first opposite party acknowledged the complaint on 26.3.2018. The act of the opposite party is high handed, dereliction in duty and deficiency in their service. Therefore the complainant is constrained to file this complaint for damage and compensation. Thus aggrieved by the act of the opposite parties, the present complaint came to be filed before this commission.

 

Crux of Defence raised by the 1st  opposite party:

 The 1st opposite party filed a detailed version stating that there is no deficiency in service  as alleged in the complaint and the complaint is wholly misconceived, groundless and unsustainable in law and is liable to be dismissed and the same is not maintainable for want of proper cause of action as there is no deficiency in service on the part of the 1st opposite party and the present complaint is manifestly outside the purview of the consumer protection Act 1986 and in any event, the proceedings initiated by the complainant under the Act is null and void. The 1st opposite party had stated that the definition of complaint as defined under section 2(c),does not cover the claims arising under the present dispute. The sub-section lays down the grounds which must be satisfied to constitute a valid complaint. The definition is being reproduced herein below for the sake of clarity:

Complaint means any allegation in writing made by a complainant that 

An unfair trade practice or a restrictive trade practice has been adopted by any trader or service provider; 

the goods bought by him or agreed to be bought by him ; suffer from one or more defects;

the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in any respect;

a trader or service provider, as the case may be, has charged for the goods or for the service mentioned in the complaint a price in excess of the price

fixed by or under any law for the time being in force

displayed on the goods or any package containing such goods;

displayed on the price list exhibited by him or under any law for the time being in force;

agreed between the parties;

goods which will be hazardous to life and life safety when used or being offered for sale to the public,

in contravention of any standards relating to safety of such goods as required to be complied with, by or under any law for the time being in force;

if the trader could have known with due diligence that the goods so offered are unsafe to the public:

services which are hazardous or likely to be hazardous to life and safety  of the public when used, are being offered by the service provider which such person could have known with due diligence to be injurious to life and safety; 

The allegations of the complainant do not fall within the purview of the above definition as the product sold to the complainant did not suffer from any defect, but became non-functional due to complainant own negligence. Further the complainant failed to mention that the defect in the phone as there was no defect detected on the date when the complainant visited the opposite party service centre i.e. on 13.8.2018 and it was explained to the complainant  that there was no defect in the product and that it was functioning as it should and any further non-functioning /damage in the product is construed to have followed due to consumers own negligence and hence does not make the company liable for compensation or replacement. Further the opposite party offered to repair the phone free of cost since the product was under warranty, which was out rightly denied by the complainant. And the present complaint is an exaggeration beyond proportion considering the fact that the complainant himself was responsible for the damage of the product since it was on account of his own negligence that the product started exhibiting functioning defects and the present complaint is baseless and flagrant abuse of process of law to harass and blackmail the answering opposite parties and the complainant has no locus standi to initiate the present proceedings. Further the present complaint is frivolous and vexatious and liable to be dismissed under section 26 of the Act which reads as follows:  

Dismissal of frivolous or vexatious complaints-where a complaint instituted before the District forum, the state commission or as the case may be, the National Commission, is found to be frivolous or vexatious. It shall, for reasons to be recorded in writing, dismiss the complaint and make an order that the complainant shall pay to the opposite party such cost, not exceeding ten thousand rupees, as my be specified in the order

Thus submitting that the opposite parties had no liability to exchange with a brand new phone and compensation for the complainant and sought dismissal of the complaint.

On the side of complainant proof affidavit was filed and documents submitted marked as Ex.A1 to A5. On the side of 1st opposite party proof affidavit was filed but no documents were produced. The 2nd and 3rd opposite parties have not filed Vakalath and written version hence they were set exparte. 

Point for consideration:

1. Whether the complainant is successful in proving that the mobile purchased by him is with manufacturing defects?

 2. To what relief the complainant is entitled? 

Point:

On the side of the complainant following documents were filed in support of his allegations;

Purchase bill dated 15.06.2018 was marked as Ex.A1;

Manufacturing Details was marked as Ex.A2;

Complainants service the mobile and format the mobile by the 2nd opposite party.  Mobile login through Gmail was marked as Ex.A3;

Complaint number issued by the customer care through phone dated 26.03.2019 was marked as Ex.A4;

Warranty Certificate was marked as Ex.A5;

The pleadings and documents submitted by both parties were perused. The counsel for the complainant submitted that the said mobile phone was not working properly even after the same is given for repair. The second Opposite party had simply formatted the data in the mobile phone and returned it without any repair by deleting all the data and contacts due to which the complainant was not able to attend his professional calls and personal calls without mobile in which the net connection was available due to which some clients were lost and caused lapse in schedule, financial problem due to manufacturing defect in the said mobile phone. Further it is contended that the complainant has purchased the said mobile phone with proper bill marked as Exhibit -A1 by paying the amount of Rs.7050/- and the same was covered by service warranty which is marked as Exhibit -A5 and the same is for a period of one year from the date of purchase.  The said Mobile phone was working well for one week and later it started giving trouble and it had no sound and poor sound, disconnectivity of sound with other problems and sound cracking and then became unusable within the warranty period of one year. Further the complainant has given complaints on various dates as aforesaid and the problem was persisting even after attending of repair said to be done by the 2nd opposite party except formatting the phone which did not solve the problem as complained by the complainant.

The crux of the arguments advanced by the 1st opposite party is that there is no deficiency in service and the complaint is baseless and the products manufactured by the opposite parties were sold only after undergoing a strict quality control measures and no defective product is sold to the public and the same did not suffer from any inherent defect and the problem in the product occurred due to mishandling of the complainant. Further the mobile phone was functioning perfectly when it was brought to the service centre and it was returned to the complainant after thorough examination. Since the mobile phone is properly functioning there arises no necessity to replace the said mobile phone nor is the opposite parties liable to repay him the cost as the same is within the manufacturing standards and it is sold to the complainant after complete and thorough inspection. This apart the opposite party had offered to repair the said mobile phone free of cost under warranty multiple times. The 1st opposite party contended that the complainant having accepted the said mobile phone after repair without protest, the alleged mental Agony and harassment as stated in the complaint is merely an afterthought and all the allegations on deficiency in service is misconceived and untenable. Thus stating that the complainant is not liable for any damage or relief. Admittedly the phone is under warranty and opposite party has also contended that the said mobile phone was perfectly working. But the 1st opposite party has not filed any documentary proof or evidence to substantiate that the said mobile was properly working when the same was brought to the service station except a mere statement that the same was working properly after inspection and no protest has been made by the complainant at that point of time. The complainant has stated that the problem in the said mobile phone subsisted even after the inspection and it is a case of the complainant that the same problem as aforesaid was persisting and he could not able to use the phone as such and hence the complaint is been filed as the opposite parties have not rectified the problem. The 1st opposite party has not denied the fact that the complainant was repeatedly complaining about the problem in the said mobile phone and the same is under warranty. The opposite parties should have acted responsibly to sort the issue or to replace the said mobile phone sold by them. In such circumstances we have no other option but to arrive at a conclusion that the said mobile phone is under warranty and the opposite party cannot be negligent stating that there is no protest made by the complainant in the service station. The complainant had clearly stated that the same problem subsisted even after the repairs said to have been by the 2nd opposite party. Hence the Complainant cannot be blamed pointing out the reason that he has not made a protest at that point of time in the service station and the 1st opposite party cannot contend that the present complaint is baseless, frivolous and untenable. Thus we hold that since the mobile phone was under warranty it is the duty of the opposite parties to rectify the problem or to replace the mobile phone. This point is answered accordingly holding that the complainant has proved clear deficiency in service against the opposite parties and they are all jointly liable to make the loss good.

Point No.2:

When we come to the relief portion to be granted to the complainant it is admitted that as per doc No: A5 the mobile phone is under warranty and the complainant cannot be deprived of using the mobile with a new brand phone of the same model or in alternative to pay a sum of Rs.7050/- for the negligence and deficiency in service committed by the 1st, 2nd and 3rd opposite parties and hence we hold that they are liable to pay the said amount to the complainant. Further due to the deficiency in service they have committed, the complainant was put to mental agony and hardship for which we award a compensation of Rs.50,000/- to be paid to the complainant. We also order a cost of Rs.5,000/- towards litigation expenses.

In the result, the complaint is partly allowed and opposite Parties 1 to 3 are jointly and severally directed to

a) replace the defective mobile with a brand new LAVA Z70 BLACK mobile within four weeks from the date of receipt of copy of this order or in alternative to pay a sum of Rs.7050/- (Rupees seven thousand fifty only) within four weeks from the date of receipt of copy of this order; 

 b) pay a sum of Rs.5,000/- (Rupees five thousand only) towards compensation for mental agony caused to the complainant;

c)  pay a sum of Rs.5,000/- (Rupees five thousand only) towards litigation expenses to the complainant. 

d) The amount mentioned in clause (a) if not paid within four weeks an interest at the rate of 6% will be applicable.

Dictated by the Member-I to the steno-typist, transcribed and computerized by him, corrected by the Member-I and pronounced by us in the open Commission on this the 13th day of July 2022.

 

      -Sd-                                                  -Sd-                                                        -Sd- 

MEMBER-II                                      MEMBER I                                            PRESIDENT

 

List of document filed by the complainant:-

 

Ex.A1 15.06.2018 Mobile purchase bill. Xerox

Ex.A2 .................. Manufacture details. Xerox

Ex.A3 .............. Complainant service the mobile and format the moble by 2nd opposite party.  Mobile login through gmail. Xerox

Ex.A4 26.03.2019 Complaint number issued by customer care through phone.  Complaint reference No.350490. Xerox

Ex.A5 ............ Warranty certificate. Xerox

 

 

List of documents filed by the opposite party;

 

 

Nil

 

    -Sd-                                                            -Sd-                                             -Sd-                                                               

MEMBER-II                                            MEMBER I                                    PRESIDENT