BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Dated this the 21^st day of June 2018

Filed on : 28-03-2017

PRESENT:

Shri. Cherian K. Kuriakose, President.

Shri. Sheen Jose, Member.

Smt. Beena Kumari V.K. Member.

CC.No.117/2017

Between

Josna Jose, : Complainant

D/o. Jose Mathew, (party-in-person)

Private employment,

“Kunnathoor” Karthikapuram P.O.,

Alakkode, Kannur,

Presently res. at

Kerala State Housing Board

Working Women's Hostel,

Kakkanad.

And

1. M/s. Micromax Informatics : Opposite party

Pvt. Ltd., 90B, Sector 18,

Gurgaon, Haryana -122 015,

Rep by its Managing Director.

2. M/s. AARJAY Associates, (2^nd o.p by Adv. Ramu P.S.)

35/1454, 1^st Floor,

Kochaneth Building,

Banerji road, Janatha Junction,

Palarivattom, Cochin-682 025,

rep. by its Authorised representative.

O R D E R

Cherian K. Kuriakose, President.

1. Complainant’s case

2. The complainant received a mobile phone manufactured by the 1^st opposite party as a birthday gift during January 2016, the phone which was costing Rs. 4,749/- was purchased on 13-02-2016 . The complainant was using the phone carefully. During the warranty period the mobile phone stared defects and it was entrusted to the 2^nd opposite party M/s. RJAY Associates, within the warranty period. When the complainant went to collect the repaired phone, the 2^nd opposite party informed her that the phone had major defects and wanted time to look into the said defects or to seek option for replacement of the same in consultation with the 1^st opposite party. Despite frequent contact with the 2^nd opposite party on various occasions the phone was neither returned to the complainant nor was replaced. On 8^th March when the complainant visited to the 2^nd opposite party she was handed over with another mobile phone of higher version. When the complainant verified phone after reaching home she found that the replaced mobile phone was a used one. The services rendered by the opposite party is defective . The complainant seeks replacement of the phone with brand new one and to direct the opposite party to pay Rs. 3,000/- by way of compensation and costs of the proceedings.

3. Notices were issued to both opposite parties and both of them appeared. However, only the 2^nd opposite party filed version.

4. The 2^nd opposite party in its version contended inter-alia that the complainant is not a consumer and that she had suppressed material facts and further that there was no deficiency in service on their part.

5. The following issues were settled for consideration.

i. Whether the complainant has proved that whether there was any deficiency in service on the part of the opposite parties as alleged in the complaint?

ii. Reliefs and costs

6. The evidence in this case consists of the documents which are marked as Ests. A1 to A3 on the side of the complainant. The opposite parties did not adduce any evidence.

7. Issue No. i. Out of the 3 documents produced by the complainant Exbt. A1 is retail invoice dated 13-02-2016 for having purchased a micromax canvas spark Q 318, 8 GB electronic equipment issued in the name of one Jerin Mathew, Varikkamakkal house Manakkadavu P.O., Alakkode in Kannoor District. Exbt. A1 invoice would go to show that it was Shri. Jerin Mathew, who purchased the phone from one Ms. Vikalp Ventures -BIJ, New Delhi. The complainant has not made the purchaser or seller of the phone in the part array. After using the phone for about 11 months, the complainant is seem to have entrusted a Micromax mobile phone to the 2^nd opposite party. It is seen that as per Exbt. A1 the IMEI number of the phone was xxxx9370 and it is the very same phone which was entrusted to the 2^nd opposite party on 05-01-2017 under repair warranty on a complaint that the power does not switch off. Exbt. A2 is an uncertified photo copy of the job sheet dated 05-01-2017 . Exbt. A3 would go to show that another mobile phone costing Rs. 9,678/- was given to the complainant as a substitute for the original phone. The complainant did not produce the phone given to her as a substitute before the Forum. On going through Exbts. A1 to A3 which are only available evidence in this case, we find that the complainant has not proved that she was the original purchaser of the phone from the 1^st opposite party. To become a ‘consumer’ the complainant will have to be the purchaser of the article. The complainant did not make the original purchaser as a party to the complaint. She also could not prove that there was any sort of deficiency on the part of the opposite party. The complaint is therefore found to be ill-founded and consequently liable to be dismissed. Issue is found against the complainant.

8. Issue No. ii. Having found issue No. i against the complainant we find that the complaint is liable to be dismissed and is accordingly dismissed.

Pronounced in the open Forum on this the 21^st day of June 2018

Sd/-

Cherian K. Kuriakose, President.

Sd/-

Sheen Jose, Member.

Sd/-

Beena Kumari V.K., Member.

Forwarded/By Order,

Senior Superintendent.

Appendix

Complainant's Exhibits

Exbt. A1 : Retail invoice dt. 13-02-2016

A2 : Copy of job sheet dt. 05-01-2017

A3 : Copy of customer despatch list

Opposite party's exhibits: : Nil

Copy of order despatched on :

By Post: By Hand: