By Sri. Mohamed Ismayil.C.V, Member
The grievance of the complainant is as follows:-
1. On 31/10/2021 the complainant purchased POCO X3 Pro (golden Bronze 123 GB) mobile phone through online from the first opposite party after paying Rs.16,999/- (Sixteen thousand nine hundred and ninety nine only ). But within a short span of time the mobile phone became defective as it turned off immediately and other options in the phone was not functioned properly. Even though the complainant contacted the service centre of the first opposite party, no action was taken to address the complaint. So the complainant directly went to the service centre and entrusted the phone for repair work. But it is informed that the repair work was not possible and offered replacement of a new phone having lesser money value. According to the complainant the subject phone was purchased for the education purpose of his younger brother. The opposite parties did not offer the replacement of mobile phone having same specification as of the subject phone. Subsequently the complainant contacted the opposite parties including service centre for many time, but they turned down to the lawful demand of the complainant . Due to the negligent act of the opposite parties the brother of the complainant could not properly attend classes resulting to suffer mental agony and hardship to them. The complainant also suffered financial loss . So the complainant prayed for a direction to the opposite parties to pay a compensation of Rs.1,00,000/- (Rupees one lakh only) to the complainant for the sufferings of mental agony, hardship and financial loss due to the deficiency in service committed by the opposite parties.
2. The complaint is admitted on file and issued notice to the opposite parties . The opposite parties appeared before the Commission . The first opposite party did not file version and so set exparte. The second opposite party appeared and filed version.
3. In the version , it is contended by the second opposite party that the complaint is not maintainable and denied the allegation of the complainant . It is stated in the version that the complainant has not chose to made the online company which served the phone as party to the proceedings. It is further stated that the mobile phone was sold by Health & Happiness private Ltd., Coimbatore . So the complaint is bad for non-joinder of necessary party. In the version, the opposite party stated that it function under the Companies Act 2013. It is admitted by the opposite party that the complainant had purchased the product on 04/10/2021 through online . The manufacturer provide warranty to its product and any action depends upon the terms and conditions of warranty. The subject phone is delivered without any defect to the complainant. According to the opposite party, the complainant has used the mobile phone for few months with no complaints. The allegation of non attendance of complaint by the opposite party is denied. After the examination of the mobile phone at service centre, it was ascertained that the product was damaged at the hands of the complainant. So the service centre of the opposite party requested to pay repair cost as physical damage is not covered under standard warranty terms and conditions applicable to the product . The opposite party averred that there is no deficiency in service on the part of the opposite party or there is no defect in the product as alleged by the complainant . Moreover the terms and conditions of warranty does not allowed the product replacement where the defect was caused due to customer induced , such as self-repair, exposure to water , damage caused by misuse of alteration , failure to comply with product manual. So the opposite party shall not cover the services or replacement under warranty if the damage to the goods bought is customer induced , even if it is contended that no deficiency of service can be attributed on the part of the opposite parties as physical damages are not covered under warranty terms and the same cannot , by any stretch of imagination be termed as manufacturing defect. The opposite party also stated that the service centre of the opposite party also duly advised to repair the product but the complainant was not ready to repair by paying the required charges. The opposite party also contended that the damages occurred to the product was not within the warranty period. The opposite party further averred that the complainant did not raise any issue with subject product for two months after purchase and has not produced any evidence admissible or otherwise to prove a manufacturing defect in the product. So the opposite party prayed for dismissal of the complaint with compensatory cost .
4. The complainant filed affidavit and produced documents. The documents produced by the complainant is marked as Ext. A1 to A3 document. Ext. A1 document is the copy of tax invoice dated 04/10/2021 issued by the Health and Happiness Private Limited, Coimbatore. Ext. A2 document is the copy of the service order dated 01/03/2022 issued by the service centre of the second opposite party. Ext. A3 document is the copy of service record dated 05/03/2022 issued by the service centre of opposite party to the complainant.The second opposite party not filed affidavit and documents. So there is no evidence on the part of the second opposite party .
5. The Commission heard the complainant and perused documents and affidavit. The points arisen for the consideration of the Commission are:-
1) Whether the opposite parties acted against the rights of the complainant and thereby committed deficiency in service?
2) If the opposite parties committed deficiency in service , then what will be the relief and cost of the proceedings. ?
6. Point No.1 and 2
The complainant averred that he purchased a mobile phone from the first opposite party manufactured by the second opposite party through online after paying consideration of Rs.16,999/-. The complainant produced copy of tax invoice dated 10/04/2021 issued by the seller named Health and Happiness Private Limited, Coimbatore. The copy of tax invoice is marked as Ext.A1 document. But unfortunately , the phone was defective one as it turned off and the options available for its for use was not functioned properly. According to the complainant the phone was purchased for the purpose of studying and attending classes of his younger brother. Then the complainant contacted the first opposite party for repair works. The complainant produced the copy of service order dated 01/03/2022 issued by the first opposite party and same is marked as Ext.A2 document . The complainant also produced copy of service record dated 05/03/2022 issued by the first opposite party and marked it as Ext. A3 document . Ext. A2 and Ext.3 documents clearly show that the complainant approached the opposite parties to rectify the defect.
7. The complainant stated in the affidavit that online platform flipkart was the service provider and there was no deficiency in service on their part. It is stated by the complainant that due to update of software as per the direction of the opposite parties, the mobile phone became defective. Moreover the complainant pleaded that the opposite parties were agreed to replace the defective phone with a new phone. But later they turned down. The opposite party did not replace or repaired the mobile phone so far and the subject phone is in the custody of the opposite parties till the date. There is no contra evidence availed in this case. Even though the second opposite party filed version denying the contention of the complainant , no evidence was adduced to support the averment in the version. So the Commission finds that the complainant succeeded in substantiating the contention made in the complaint. It can be concluded that the opposite parties committed deficiency in service towards the complainant. The Commission considers the prayer of the complainant by taking in to account about the nature of transaction took place between the parties. It has come out in evidence that the mobile phone was purchased for the use of attending classes for his younger brother. Due to defect of product the complainant suffered much mental agony and hardship. The complainant also suffered financial loss. The opposite parties did not take any steps to return the phone kept in the service centre so far. So the commission finds that the opposite parties are liable to refund the price of the mobile phone to the complainant and also liable to pay Rs.25,000/- as compensation for the sufferings of mental agony and hardship due to the negligent act of the opposite parties . Hence the complaint is allowed in the following manner.
- The opposite parties are directed to refund Rs.16,999/- (Rupees Sixteen thousand nine hundred ninety nine only) to the complainant as the price received for the subject mobile phone. .
- The opposite parties are directed to pay Rs.25,000/- (Rupees twenty five thousand only) as compensation to the complainant for the sufferings of mental agony , hardship due to the deficiency in service.
- The opposite parties are also directed to pay Rs.10,000/- (Rupees Ten thousand only ) to the complainant as the cost of the proceedings.
The opposite parties shall comply this order within one month from the date of receipt of copy of this order; otherwise the entire amount shall bear 9% of interest per annum from the date of order till realization
Dated this 24th day of April , 2023.
APPENDIX
Witness examined on the side of the complainant: Nil
Documents marked on the side of the complainant: Ext.A1 to A3
Ext.A1: Copy of tax invoice dated 04/10/2021 issued by the Health and Happiness
Private Limited, Coimbatore.
Ext.A2: Copy of the service order dated 01/03/2022 issued by the service center of the
second opposite party .
Ext A3: Copy of service record dated 05/03/2022 issued by the service center of
opposite party to the complainant.
Witness examined on the side of the opposite party: Nil
Documents marked on the side of the opposite party: Nil
