DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT : Sri. P.C. PAULACHEN, M.Com, LLB        : PRESIDENT

                  Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

                  Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

           Tuesday the 4th    day of January 2022

                     C.C. 114/2016

Complainant

  Sreekumar.A.K.

  Sreeragam (Ho)  

  Kakkur P.O., Nanminda

  Kozhikode – 673 613

Opposite Parties

1. Lenovo (India) Pvt Ltd

Ferna Icon, Level 2, Doddenakundi Village

Marathahalli Hobli, Bangaloru – 560 037.

(By Adv.Sri. P. Rajeev and Adv.Sri Nair Ajay Krishnan)

2. WS Retail Service Pvt Limited

No.42/1 and 43, Kacherakanhalli,

Hoskotte Taluk, Bangaloru

Karnataka – 560 067.

(By Adv.Sri. K.S. Vivek)

3. Fortuner Service

Merryland Square, Thiruthiad Road

Near Baby Memorial Hospital

Calicut – 673 004.

4. Fortune Service

Merryland Square

Thiruthiad Road, Calicut

5. E Mart Logistic

22/108 Flip Kart House

Gandhi Road, Vellayil

Calicut – 7.

6. Instakart Service Pvt Ltd

Zainab Rahman Arcade

Near Regal Bakery

Gandhi Road, Vellayil

ORDER

By Sri. V. BALAKRISHNAN – MEMBER

        This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.

        2. The case of the complainant, in brief, is as follows:

           On 25/12/2015  complainant  purchased  a Lenova P1 ma 40 mobile phone worth Rs.7,999/- from  online e-commerce site Flipcart through the online account of his friend Sri.Santhoshkumar.  On 09/02/2016 the mic of hand set was damaged  somehow and the complainant felt difficulties in receiving the calls.  He approached the 3^rd opposite party, which is the  authorised service centre. But they declined to accept the phone stating that it was a common mic problem found in Lenovo and that they would intimate company  and inform him once the parts were received from the company. No further information was received from the service centre in spite of contacting them repeatedly. The complainant purchased the same model phone  earlier in December 2015 and within one week its  speaker got damaged  and the company replaced the phone with the above said PI ma 40 Model  on 25/12/2015. The newly supplied mobile phone is defective  as stated earlier due to mic failure. It is a serious omission of consumer service from the part of opposite  parties hence the complaint seeking compensation  of Rs.25,000/- for the monetary loss  and hardship suffered by  him  including waste of time.

3. The first, second and third opposite parties alone filed version.

4. According to the first opposite party, the complaint is devoid of merits. The handset was produced by the complainant in the service centre on 11/02/2016. The mic of phone was replaced and the complaint was closed on 05/03/2016. The reason for the delay for returning the device  was due to the fact that the parts were to be  obtained from the company. There was no deficiency of service  on their part and no compensation is payable to the complainant.   

5. The contention of the second opposite party is that  the product was manufactured by the first opposite party and it carries the   warranty. The complaint should have been made only against the manufacturer or service centre  since  the complaint is  in relation to the defect in the product and its after sales services.  There is no cause of action against the second opposite party and there was no deficiency of service on their part.  Hence the complaint is only to be dismissed.

6. The 3^rd opposite party has contended in the version that the complainant is not a consumer. The actual purchaser is one Santhoshkumar. T. It is true that  the complainant approached the 3^rd opposite party on 11/02/2016  with complaints regarding the mic. It is true that  the mic was not functioning  and hence he informed the complainant that the parts has to be obtained by placing order. The mobile handset was returned to him for that reason. Thereafter the complainant did not approach them and there was no deficiency of service or unfair trade practice on their part. With the above contentions, the 3^rd opposite party prays for dismissal of the complaint.

7.  The points that arise for the determination of the case are:

    (1) Whether the complainant is a consumer or not?

            (2) Whether there was any deficiency of service  on the part of

             opposite parties, as alleged.

           (3) Reliefs and costs.

        8. Evidence in this case consists of oral evidence PW1 and Ext.A1 and A2 on the side of the complainant. No evidence was let in by the opposite  parties.

9. Heard both sides.

10. Point No.1 :  The third opposite party has taken a contention that the complainant herein is not a consumer as defined under section 2(1) (d) of the Consumer Protection Act, 1986.

11.  According to the complainant, he purchased the mobile phone through the account of his friend  Sri. Santhoshkumar. When examined as PW1 before this commission, PW1 has reiterated and reaffirmed  that it was he who  purchased the device through the account of Sri. Santhoshkumar . The said Santhoshkumar was examined as PW2.  PW2 has deposed that  he purchased the phone and gifted the same to PW1.  However, it is not in dispute that the phone is being used by none other than PW1. He is a user of the device with approval of PW2. Being a person using the disputed device with the approval of the person who bought it, the complainant is definitely a consumer within the meaning of section 2(1) (d) of the Consumer Protection   Act, 1986, and the complaint is maintainable.

12. Point No.2 :  The first phone was purchased earlier in December 2015. Within a week, its speaker became defective  and the company replaced the phone with the disputed phone on 25/12/2015. The replaced phone also became defective since the mic got damaged and the  complainant approached the 3^rd opposite party on  11/02/2016 for rectifying the defects. The 3^rd opposite party, which is the service centre, expressed their helplessness to redress the grievance of the complainant for the reason that  it was a common mic problem found in Lenovo and the parts were not readily available and that he would be informed as and when parts were received from the  company. PW1 has categorically deposed before this commission that thereafter nothing was heard from the 3^rd opposite party and no positive action was taken to redress his grievance. There is absolutely no reason to disbelieve PW1 in this regard. The 3^rd opposite party has admitted in the version that the device had such a complaint as alleged  by PW1 and the parts were not readily available. Thus there is admission of the 3^rd opposite party regarding the defective mic in the  handset and the non-availability of parts.

13. A contention is taken by the  1^st opposite party that the defect was rectified by the service centre. But the 3^rd opposite party did not adduce any evidence  or produce any document to show the genuineness of the their contention. Moreover,  there is the clear admission of the 3^rd opposite party which lends support  to the case of the complainant. So we have no hesitation to hold that   the contention taken by the 1st opposite party is without any basis.

14. As already stated, the first device purchased was defective and it was replaced  with another one.  But the replaced device also became faulty within a couple of weeks  thus depriving the consumer of the facility to use the mobile phone. Even though he approached the authorised service centre, his grievance was not redressed for the reason that the parts were not available. It goes without saying that it  is the duty of the manufacturer to make available the parts. There was gross deficiency  of service on the part of  the 1^st, 2^nd and 3^rd opposite parties. Their negligence and deficiency of service has resulted in  grave mental agony and  hardship to the complainant  and he was not able to  use the mobile phone  from 11/02/2016. The complainant is entitled to be compensated adequately. The compensation claimed is Rs.25,000/- and according to us it is a bit excessive.  Considering the entire facts and circumstances of the case, we are of the view that a sum of Rs.8,000/- will be reasonable compensation in this case.

  15. Point No.3 : In light of the finding of above points, the complaint is disposed of as follows:

a) CC 114/2016 is allowed in part.

b) The opposite parties 1 to 3  are directed to pay a sum of Rs.8,000/-  (Rupees Eight thousand only) as compensation to the  complainant for the loss, hardship and mental agony  suffered.

d) The payment as aforestated shall be made within 30 days of the receipt of the copy of this order.

    Pronounced in  open Commission  on this the  4^th day January    2022.

Date of Filing: 02/08/2016.

           Sd/-                  Sd/-                         Sd/-

      PRESIDENT                   MEMBER                    MEMBER

APPENDIX

Exhibits for the Complainant :

Ext. A1 –  Copy of retail tax invoice

Ext. A2 –  Copy of bill of Fortune service

  Exhibits for the Opposite Parties

• Nil -

Commission Exhibits

• Nil -

Witnesses for the Complainant

PW1 –  Sreekumar.A.K. (Complainant)

PW2 – Santhoshkumar.T – ASI, City Traffic Police Station

Witnesses for the opposite parties

 Nil -  

     Sd/-              Sd/-                           Sd/-

PRESIDENT         MEMBER            MEMBER

                                                   Forwarded/By Order

                                                  Senior Superintendent