By  Sri.P.K,.Sasi, President

          The case of the complainant is that he had purchased a Microsoft Lumia mobile handset by online payment on 21/7/2015 through 2^nd opposite party.  The mobile phone handset stopped  functioning all on a sudden and it was handed over to the 1^st opposite party, who is the authorized service centre of the manufacturer of the phone, on 5/7/16 during the warranty period.  He was told by the 1^st opposite party that it has to be sent to the manufacturing company for service.  After one month on repeated enquiry the  phone was returned to the complainant saying that the defects are rectified.  On examination of the phone it was found by the complainant that the phone was not working.  Again it was handed over to the service centre and it took about one month to get back after repairing.  At that time he was told by the service centre that the battery of the handset is spoiled.  When it was entrusted with the opposite party the battery of the handset was in good condition.  Then the battery was changed by paying Rs.2,200/-.  Again it was found that the battery was not getting completely charged.  The charging of the battery will cut off at 80%.  Again the complaint was submitted before the 1^st opposite party and he was told that the board of the phone is damaged and it  cannot be rectified since the warranty is over.  The handset is with the 1^st opposite party and they have not returned the handset so far.  According to the complainant the handset was having some severe manufacturing defect and the 1^st opposite party did not provide the warranty benefit by replacing the phone with a new one to the complainant.  Hence this complaint is filed for getting compensation.

          2. Being noticed on the complaint, 1^st and 2^nd opposite parties appeared through counsel and filed detailed version.  Whereas as the 3^rd opposite party even after accepting the notice, neither appeared before the Forum nor submitted any version.  Hence the 3^rd opposite party set exparte.  In the version filed by the 1^st opposite party, it is stated that they are only a  franchisee for phone servicing of the 3^rd opposite party.  The complaint regarding the manufacturing and replacing of the product are not a matter concerned with the 1^st opposite party.  It has to be done by the manufacturer.  The 1^st opposite party admitted that the complainant has entrusted the phone for repairing on 5/7/16.  They also admitted that the handset was sent to the 3^rd opposite party for servicing and that was returned to the complainant after servicing.  They denied the allegation that the complainant entrusted the phone again since the complaints are not rectified.  On 27/9/16 again the complainant submitted the phone with complaints.  But there was no warranty during that time.  Hence the 1^st opposite party denied  free servicing.  Free service can be provided only in the warranty period.  After that paid services can be done by the 1^st opposite party.  No single paise was collected from the complainant by the 1^st opposite party.  The 1^st opposite party further contended that since the manufacturer is not made a party, the complaint is bad for non joinder of necessary parties.  The 1^st opposite party further submitted that by submitting false allegations, the complainant is made an attempt to get a new handset after the warranty period.  They prayed for the dismissal of the complaint with cost.

          3. The 2^nd opposite party in their detailed version submitted that they are only an online  reseller  registered on  the website Flipkart.com.  The product sold by the 2^nd opposite arty carries  manufacturer’s warranty against manufacturing defect subject to the terms and conditions determined by them only.  No warranty is provided by the 2^nd opposite party.  The product was delivered to the complainant in a sealed b ox  condition as it was received from the manufacturer.  The 2^nd opposite party does not having the facility or technical knowledge to ascertain if the alleged defects in the product are due to inherent manufacturing defects or   arosed due to customer abuse.  Since the 2^nd opposite party has delivered the product in sealed box and within the time specified in the order  and hence there has not been any deficiency in service happened on the part of 2^nd opposite party, they prayed for the dismissal of the complaint with cost.

          4. Then the case was posted for evidence and the points for consideration are that :

1) Whether there was any deficiency in service happened on the part of any opposite parties ?

2) If so what costs and reliefs ?

          5. From the side of complainant he has appeared before the Forum and submitted proof affidavit, in which he has affirmed and explained all the averments stated in the complaint in detail.  He has also produced 8 documents which are marked as Exts.P1 to P8.  Ext.P1 is copy of retail invoice, Ext.P2 is copy of collection slip issued by 1^st opposite party dated 5/7/16, Ext.P3 is slip given by 1^st opposite party dated 31/7/16, Ext.P4 is order details, Ext.P5 is copy of updates sent, Ext.P6 is copy of retail invoice dated 29/1/16, Ext.P7 is copy retail  invoice dated26/9/16 and Ext,P8 is copy of collection  slip dated 27/9/16.  From the side of contesting opposite parties, the 2^nd opposite party alone filed counter proof affidavit by their authorized person.  No documents produced from the side of 2^nd opposite party.  The 1^st opposite party  produced copy of collection slip dated 27/9/16.  But it is not marked since same document already produced and marked from the side of complainant.  The 2^nd opposite party also filed argument note and we heard the complainant, 1^st opposite party and the counsel for the 2^nd opposite party. 

          6.According  to the complainant the 1^st opposite party has denied the warranty benefit, which caused monetary loss as well as severe mental agony to the complainant.  But 1^st  opposite party contended that they have provided all the free services within the warranty period and the complainant produced  the phone with complaints after the warranty period, which cannot be serviced with free of cost.  That was intimated to the complainant.  But he was not amenable  either to pay the service cost or to take back the handset from the 1^st opposite party. 

          7. According to the complainant he has purchased the phone on 21/7/15.   But the phone showed complaint only on 5/7/16.  Regarding the warranty period neither any documents produced nor anything stated in the complaint.  The phone showed complaints almost only after one year use.  The manufacturer is already impleaded as 3^rd opposite party in the complaint and set exparte.  Here the burden is upon the complainant to prove before the Forum that there was manufacturing defect to the handset and that was not rectified by the manufacturer through their authorized service centre during the warranty period.  The Ext.P2 is        dated 5/7/16 within the warranty period as stated on it.  Whereas Ext.P8 dated 27/9/16 is out of warranty as stated on it.  It would go to show that the complainant entrusted the phone on the second time only after the alleged warranty period.  The Exts.P6 and P7 retail invoices  of purchase of battery is also after the warranty period.  There is no evidence adduced from the side of complainant to show that the complaint submitted as per Ext.P2 was not completely  rectified and the complaints were existed with the phone.  The disputed phone is with the 1^st opposite party.  They could have produced the phone before the Forum.  That was not done by the 1^st opposite party.

          8. Considering all these points discussed hereinabove, we are of the opinion that the complainant could not prove before the Forum that the mobile phone was having manufacturing defect and that was not rectified within the warranty period by the opposite party.  The 2^nd opposite party is only a online dealer and there is no  specific prayer against  the 2^nd opposite party in the complaint.  It is true that the handset is with the 1^st opposite party which is neither handed over to the complainant nor produced before the Forum.

          9. In the result we allow this complaint in part and the 1^st opposite party is directed to return the phone to the complainant or to pay Rs.5,000/- (Rupees Five thousand only) as cost of the phone to the complainant within one month from receiving copy of this order.

          Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum this the 28^th  day  of September   2017.