COMPLAINT FILED: 28.04.2008<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> 16th AUGUST 2008<br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT<br /> SRI. SYED USMAN RAZVI MEMBER <br /> SMT. M. YASHODHAMMA MEMBER <br /> <br /> <br /> COMPLAINT NO. 1039/2008<br /> <br /> <br /> COMPLAINANT Balaji. K.S.,<br /> S/o. K.G. Subhash,<br /> Aged about 20 years,<br /> R/at No. 7, II Cross,<br /> Lalabhagh Siddapura,<br /> I Block, Jayanagar,<br /> Bangalore – 560 010.<br /> <br /> <br /> Advocate (A. Lourdu Mariyappa)<br /> <br /> <br /> V/s.<br /> <br /> <br /> OPPOSITE PARTIES 1. Nokia India Pvt. Ltd.,<br /> 2nd Floor, Commercial Plaza,<br /> Radisson Hotel, NH-8,<br /> Mahipalpur,<br /> New Delhi – 37,<br /> Represented by its Manager.<br /> <br /> <br /> 2. The Manager,<br /> Big Bazaar,<br /> Division of Pantaloon Retail (Retail) Ltd.,<br /> No. 45/1, Marenahalli Village,<br /> J.P. Road, II Phase,<br /> Bangalore – 69.<br /> <br /> <br /> Advocate (C.K. Dharaneeswaran)<br /> <br /> <br /> <br /> 3. Magnum Fashion,<br /> No. 7, 11th Main, III Block,<br /> Jayanagar East,<br /> Bangalore – 11.<br /> Represented by its Manager.<br /> <br /> <br /> O R D E R<br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant to direct the Opposite Party (herein after called as O.P) to refund the cost of the mobile handset and pay a compensation of Rs.50,000/- and for such other reliefs on an allegations of deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> Complainant purchased a mobile Nokia N-73 ME on 15.10.2007 from OP.2 big bazaar manufactured by OP.1, OP.3 is the authorized service centre for Nokia products. Complainant paid Rs.15,000/- towards the cost of the said mobile handset, took delivery of the same. Within a span of 9 days that is on 26.10.2007 he noticed several defects in the said handset, there is an enhancement connectivity, alert ringing issue, keys do not work, loudspeaker is not working properly, etc. Immediately he took the said instrument to OP.2. At the instance of OP.2 he took it to OP.3 the authorized service centre. OP.3 received the said handset issued the job sheet, attended to some defects, but it was not satisfactory, the problem was not detected and cured. Not once but thrice he gave the said handset to OP.3 with one or other complaint, but the result is one and the same. Being fed up with the hostile attitude of the OP.3 he left the cell phone at OP.3. His requests to OP.1, 2 and 3 to replace the defective handset or refund the cost, went in futile. Complainant felt that there is an inherent manufacturing defect in the handset, that is why he caused the legal notice to OP’s. Again there was no response. For no fault of his, he was made to suffer both mental agony and financial loss. Under the circumstances he is advised to file this complaint and sought for the relief accordingly.<br /> <br /> 2. Though OP.1 appeared through the Advocate, failed to file the version. OP.3 served with a notice, remained absent, hence placed ex-parte. Only OP.2 contested the matter by filing the version. The defence set out by the OP in a nutshell is that. OP.2 is not obliged to extend any service after the sale, it is only an outlet which is selling the product manufactured by OP.1. OP.3 is the authorized service centre. If there is any defect in the said handset complainant has to redress his grievance against OP.1 and 3. To satisfy the customer OP.2 is ready to exchange the defective product, but as it is there is no proof that the handset delivered to the complainant by them is having any inherent manufacturing defect. In addition to that complainant never approached the OP.2 either for replacement or for any other relief. No such deficiency in service lies on the part of OP.2. On the plain reading of the complaint, there is no specific allegation of deficiency in service against OP.2. Hence OP.2 is not liable either to replace the set or refund the cost of the set. Among these grounds, OP prayed for the dismissal of the complaint.<br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced the documents. OP.2 has also filed the affidavit evidence. OP.1 and 3 did not participate in the proceedings. Then the arguments were heard.<br /> <br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has proved <br /> the deficiency in service on the part of the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the reliefs now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Affirmative in part<br /> Point No.2:- Affirmative in part<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 6. At the outset it is not at dispute that the complainant purchased one Nokia N-73 ME model mobile on 15.10.2007 from OP.2 big bazaar for the total cost of Rs.15,000/-. A document to that effect is produced. It is also not at dispute that the said handset is manufactured by OP.1 and OP.3 is the authorized Nokia service centre. Now it is the grievance of the complainant that within a span of 9 days from the date of taking of delivery of the said goods from OP.2 he noticed several problems with the handset like that of enhancement connectivity, alert ringing issue, keys do not working properly, loudspeaker problem, etc. It appears complainant approached OP.2 with the said complaints. Then as per the direction of the OP.2 complainant approached OP.3 the service centre.<br /> <br /> 7. It is contended by the complainant that he handed over the said handset to OP.3 not once but thrice alleging the inherent manufacturing defect with certain parts of the said handset. OP.3 having accepted the said handset issued the job card. The documents to that effect are produced. With all that OP.3 is unable to detect the defect and cure the same. The said defects have occurred within the warranty period. Complainant is unable to use the said handset for the purpose for which he purchased it. Having not satisfied with the service provided by OP.3 he ultimately left the said handset with OP.3. This fact is not denied. The evidence of the complainant appears to be very much natural, cogent and consistent. There is nothing to discard his sworn testimony. It is the quality of evidence that is more important than that of the quantity. The non-appearance and non-participation of OP.1 and 3 in this case leads us to draw an inference that they admit all the allegations made by the complainant in toto.<br /> <br /> 8. Though complainant invested his hard earned money, he is unable to reap the fruits of his investments, naturally he must have suffered both mental agony and financial loss. Of course OP.2 is the big bazaar who sold the said handset to the complainant for a valid consideration. As it is no after sale service will be provided by OP.2, so it rightly directed the complainant to approach OP.1 or 3 to set right his grievance if any. Though OP.2 has contended that there is no proof of manufacturing defect in the product, which have occurred within the warranty period, we do not find force in the said contention because within a span of 10 days complainant noticed the defects and repeatedly he took the handset to OP.3 not once but trice. The job card shows about the defect in the said product and that part of evidence of the complainant is not denied either by OP.1 or 3. <br /> <br /> 9. Under such circumstances prima-facie there is a proof that there is a defect in the said product, that too within a warranty period. Of course OP.2 being the retailer cannot be fixed with the said liability. In our opinion OP.1 and 3 are jointly and severally liable for the replacement of the said handset, which has got inherent manufacturing defect within a reasonable time to the complainant. If OP.1 and 3 are so advised, they can agitate their rights against OP.2 with regard to the cost of the said instrument. The allegations against OP.2 appears to be not sound. We are of the view that the complainant is able to prove the deficiency in service against OP.1 and 3. Accordingly we answer point nos.1 and 2 and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is allowed in part. OP.1 and 3 are jointly and severally directed to replace the Nokia handset N-73 ME IMEI No. 356406017455147 with a brand new defect free handset of the same model, if that model is not available in the market the mobile which complainant prefers to receive towards the cost which he has already paid. This order is to be complied within 4 weeks from the date of its communication. The complaint against OP.2 is dismissed. In view of the nature of dispute no order as to costs.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 16th day of August 2008.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />