By Sri. MOHAMED ISMAYIL.C.V, MEMBER
The averments in the complaint are in brief:-
1. On 24/12/2022, the complainant had purchased a mobile phone for Rs. 26,500/- from the third opposite party. On the day of purchase itself it was noticed that display of the phone had got hang. On the next day, the complainant had contacted the third opposite party and entrusted the phone for rectification work. Later it was handed over to the complainant after making an impression that the same was rectified properly. But defect was continued and phone was again entrusted to the third opposite party after 3 days of period. On the basis of instruction of third opposite party, the complainant had contacted the second opposite party for proper rectification work. But the complaint was not resolved. Meanwhile a blue colour was appeared on display screen and the same was spread over it. On 07/07/2023 the mobile phone had entrusted to the second opposite party following the instructions of third opposite party. But on 10/07/2023 the second opposite party handed over the phone to the complainant by made believe him that entire issues were resolved. On 11/07/2023 the complainant had again contacted the second opposite party for rectification. But they turned down. It is alleged that mobile phone purchased from third opposite party, manufactured by fourth opposite party, serviced by second opposite party is remained defective and no proper action was taken by them to resolve the defects. It is alleged by the complainant that the opposite parties are failed to rectify the defect permanently though the device was inspected for several time. So the complainant has been suffered mental agony, hardship, time loss and inconvenience due to the deficient acts of the opposite parties. Moreover the complainant had incurred expenses of Rs.10,000/- for travelling. Hence the complainant prayed for directions to the opposite parties to pay Rs. 1,10,000/- as compensation and to provide a defect free phone to the complainant.
2. On admission notices were issued to the opposite parties. The first opposite party received notice and appeared before the Commission and also submitted written version. The second opposite party received notice and acknowledgement card is returned showing receipt of notice. The third opposite party also received notice on 23/08/2023. But the second and third opposite parties did not appear and also failed to submit written versions. The notice to the fourth oppose party was issued on 11/12/2023. The fourth opposite party received notice and the acknowledgement card was returned back. But the fourth opposite party failed to submit written version with in the statutory time. Hence the opposite parties 2 to 4 are treated as exparte.
3. The first opposite party denied allegation of deficiency in service. The first opposite party is the manufacturer of the phone purchased by the complainant. It is contended that the complainant has suppressed material facts in the complaint and allegation of defect cannot be determined on the basis of averments made in the complaint. The complaint did not prove any manufacturing defect. The opposite party admitted purchase of mobile phone by the complainant, but disputed the averment that on the very day of purchase of the product, it had got hang. It is admitted by the opposite party that the complainant had availed extended warranty up to 18/09/2023 for Rs. 4,999/-. It is contended that the hand set purchased by the complainant suffered UTG Crack and stabled mark on the LCD and the same will not cover under warranty. There was no element of cheating or unfair trade practice from the side of the first opposite party and they are bound to act upon the terms and condition of warranty. According to the opposite party, as per terms and conditions of warranty they are not liable to pay any compensation as prayed in the complaint. The allegation of various complaints to the phone are false and no evidence is produced in that regard. It is stated in the version that on 21/11/2021 the complainant had approached to the second opposite party with a complaint of screen damage. On the basis of registration of complaint phone was inspected by the service engineer and found that the same was damaged due to impact/ mishandling on the part of the complainant. It is ascertained that damage was physical one by using the phone in a careless manner. So the second opposite party issued an estimate to repair the phone, but the complainant had turned down. The first opposite party stood for dismissal of the complaint.
4. The complainant and the first opposite party have submitted proof affidavits in lieu of evidence. The documents from the side of the complainant are marked as Ext. A1 to A7 documents. Ext.A1 document is the copy of sales invoice dated 24/12/2022 for Rs.26,500/-issued by the third opposite party to the complainant. Ext.A2 document is the copy of warranty receipt dated 07/07/2023. Ext.A3 document is the copy of photographs of mobile phone showing the damage sustained to hit. Ext.A4 document is the copy of screenshot of the whatsapp communication made between the complainant and the first opposite party. Ext.A5 document is the copy of estimate dated 15/07/2023 issued by second opposite party to the complainant. Ext.A6 document is the copy of specification downloaded from online cite of opposite party. Ext.A7 is a pen drive containing video of showing condition of the phone. The documents produced by the first opposite party are marked as Ext.B1 to Ext.B3. Ext.B1 document is the copy of power of attorney issued by the first opposite party in favour of Mr. Sandeep Sahijwani to conduct the case before this Commission. Ext.B2 series documents are copies of two photographs of the mobile phone to show physical damage. Ext.B3 document is the copy of warranty card containing its terms and conditions.
5. Heard the complainant and the first opposite party in detail. Other opposite parties are remained absent. The Commission examined all records on the file and considered following points to determine the finality of the matter:-
- Whether the acts of the opposite parties are amounted to deficiency in service against the complainant?
- Relief and cost?
6. Point No.(i)):-
The argument of the complainant is that the mobile phone purchased from the
third opposite party became unusable due to defect of display, but the opposite parties did not take any action to rectify that defect or replace with a new one. It is further argued that he had repeatedly contacted the opposite parties to rectify the defect but they were failed to make it in an usable condition. The complainant alleged manufacturing defect to the phone. According to the complainant, defect was detected on it from the very inception of purchase of the phone and he could not make use of the product in a proper manner.
7. On the other hand , the first opposite party argued that there was no manufacturing of the phone defect to the phone and defect was caused due to impact or mishandling of the phone on the part of the complainant. According to the first opposite party damage was physical one by using the phone in a careless manner. Hence these defects cannot be rectified under warranty. The opposite party has produced Ext.B2 series documents in support of their argument. Ext. B2 series documents are the photographs of the phone. It is further argued by first opposite party that they are not liable to make any rectification work as per terms and conditions of warranty. The opposite party produced terms and conditions of warranty and the same is marked as Ext. B3 document.
8. In the analysis of evidence, it is find that purchase of phone by the complainant is proved as per Ext.A1 document. Ext.A1 document would show that on 24/12/2022 the complainant had purchased a mobile phone from the third opposite party for Rs. 26,500/-. The first opposite party admitted that third opposite party is their authorised dealer and the second opposite party is the authorised service centre. The area of dispute is that whether the defect of the phone is caused due to manufacturing defect or careless handling or physical damage by the complainant. The very argument of the complainant is that right from the very beginning of purchase of phone it had suffered defect. It has come out in evidence that the complainant had repeatedly contacted the opposite parties but no rectification work was carried out under warranty. The complainant has produced Exts. A2, A3 and A7 documents to show the defects of the phone. Ext.A4 document produced by the complainant would show that he had made communication with the first opposite party with regard to defect of phone for many times. Ext.A4 document would show that the subject phone was affected with multiple issues and the same was not rebutted by the first opposite party. The first opposite party did not contend that the subject phone is in working condition. So the Commission find that the contention of physical damage and careless use of subject phone is baseless and without any proof. It has come out in the evidence that the defect of the phone was found at the very beginning stage. The Commission also consider the fact that the first opposite party has responded to the pleadings of the complainant without any basis. It is contended in the version that on 21/11/2021 the complainant had approached the service centre to rectify the damage of the screen. But as per Ext.A1 document the subject mobile phone was purchased on 24/12/2022 only. Moreover the Commission also find that Ext. B2 series documents would not reveal identity of the phone shown in it and the Commission cannot find that phone shown in Ext. B2 series documents and the phone purchased as per Ext. A1 document are one and the same. So the Commission find that the mobile phone purchased as per Ext.A1 document has become unusable and it had undergone repair work on many occasions but failed to rectify the defect permanently and the same can be treated as manufacturing defect. The Commission find that the first and second opposite parties are failed to rectify the defects of the phone. Moreover the Commission find that the demand of payment for rectification work as per Ext. A5 document is against the terms and conditions of warranty and the same is amounted to deficiency in service on the side of the first and second opposite parties. There is no evidence against the third and fourth opposite parties to prove the allegation of deficiency in service. Hence the third and fourth opposite parties are exonerated from liabilities.
9. Point No.(ii):-
The Commission find that the first and second opposite parties are liable to pay reasonable and adequate compensation to the complainant for the sufferings of mental agony and inconvenience caused due to the act of deficiency in service. The complainant had made hectic efforts to get repaired his phone from the opposite parties. But they failed to do so. So the Commission consider that the first and second opposite parties are liable to pay Rs. 15,000/- as compensation for the sufferings endured by the complainant due to the deficient acts of the opposite parties. The Commission also find that the first and second opposite parties are liable to pay Rs. 26,500/- as cost of the phone. Moreover, the first and second opposite parties are liable to pay Rs. 5000/- to the complainant as cost of the proceedings. In the light of the deliberations made above the Commission allow the complaint in the following manner:-
- The first and second opposite parties are directed to pay Rs.26,500/- (Rupees Twenty six thousand five hundred only) to the complainant as cost of the mobile phone.
- The first and second opposite parties are directed to pay Rs.15,000/-(Rupees Fifteen thousand only) to the complainant as compensation for the sufferings endured by the complainant due to deficient act.
- The first and second opposite parties are directed to pay Rs. 5,000/- (Rupees five thousand only) to the complainant as cost of proceedings.
The first and second opposite parties are shall comply this order within 30 days from the date of this order otherwise entire amount shall carry interest at the rate of 9% per annum from the date of this order till the date of realisation.
Dated this 30th day of October, 2024.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1 to A7
Ext.A1: Document is the copy of sales invoice dated 24/12/2022 for Rs.26,500/-
issued by the third opposite party to the complainant.
Ext.A2: Document is the copy of warranty receipt dated 07/07/2023.
Ext.A3: Document is the copy of photographs of mobile phone showing the damage
sustained to hit.
Ext.A4: Document is the copy of screenshot of the whatsapp communication made
between the complainant and the first opposite party.
Ext.A5: Document is the copy of estimate dated 15/07/2023 issued by second
opposite party to the complainant.
Ext.A6: Document is the copy of specification downloaded from online cite of
opposite party.
Ext. A7: Pen drive containing video showing the condition of the phone.
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Ext. B1 to B3
Ext.B1: Document is the copy of power of attorney issued by the first opposite
party in favour of Mr. Sandeep Sahijwani to conduct the case before this
Commission.
Ext.B2: Series documents are copies of two photographs of a mobile phone to show
physical damage.
Ext.B3: Document is the copy of warranty card containing its terms and conditions.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
