BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

            Dated this the 23^rd day of August 2017

                                                                                       Filed on: 17.02.2017

          PRESENT:

Shri. Sheen Jose,                                                            Member.

Smt. Beena Kumari V.K.                                                  Member.

                        C.C.No. 80/2017

                                 Between

                                               O R D E R

Sheen Jose, Member

1.  The case of the complainant is as follows:

The complainant is a software Engineer by profession and he had purchased a mobile phone Microsoft Lumia 950XL DS/RM-1116 from the 3^rd opposite party on 18.12.2015 at a price of Rs.47,000/- which was manufactured by the 1^st opposite party.  The 2^nd opposite party is the authorized service centre of the 1^st opposite party.  After the date of its purchase, the mobile phone showed many complaints, including the issue relating to the software problem.  Subsequently, the handset has become useless and the complainant had suffered a lot of inconvenience due to its various defects.  The complainant had approached the 2^nd opposite party several times for rectifying the defects of the disputed gadget ie., on 16.01.2016 and 09.05.2016 respectively, which is clearly evident from the job sheet No.412465550/160106/61 and 412465550/ 160509/04.  Again, the mobile phone became defunct on August 2016 and due to this reason, the complainant was not able to make or receive any calls.  The complainant approached the 2^nd opposite party to rectify the defects of the mobile handset.   The complainant had obtained phone back from the 2^nd opposite party and during that time the phone was working.  But a couple of hours later on the same day, the phone showed further complaint of ‘switching off automatically’.  The complainant again approached the 2^nd opposite party on the same day and the 2^nd opposite party give him back the old job sheet.  Thereafter nothing was heard from the 2^nd opposite party.  Thereafter the complainant was forced to buy a new phone.  The 2^nd opposite party issued a new job sheet dated 09.09.2016.  Despite having waited for more than 2 months there was no response from the 2^nd opposite party.  After repeated requests, the complainant was informed that the phone was sent to the opposite party for necessary replacements.  The complainant sent an e-mail to the 1^st opposite party and asked them to expedite the process.  There was no response to the e-mail.  Till date the complainant had not received the phone back and there was deficiency in service and unfair trade practice happened on side of the opposite parties.  Thus the complainant is before us seeking direction against the opposite parties to refund an amount of Rs,47,000/- with 18% interest p.a. from 18.12.2015, the date of purchase till realization and also seeking Rs.50,000/- towards compensation and Rs.15,000/- towards costs of the proceedings.  Hence this complaint.

2)       Despite service of notice from this Forum the 1^st, 2^nd and 3^rd opposite parties opted not to contest the matter for their own reasons.  Ex-parte proof of affidavit has been filed by the complainant.  Exbt. A1 to A6 were marked on his side.  Heard the learned Counsel for the complainant.

3)       Issues came up for considerations are as follows:

1.  Whether the complainant has proved any deficiency in service or unfair trade on the part of the opposite parties?

2.  Whether the complainant is entitled to get refund an amount of Rs.47,000/- which is price of the  disputed handset along with 18% interest from the opposite parties?

3.  Whether the opposite parties are liable to pay compensation and costs of the proceedings to the complainant?

4)       Issue Nos. (i) and (ii)

          Exbt. A1 retail invoice shows that the complainant had purchased the disputed mobile handset from the 3^rd opposite party on 18.12.2015 at price of Rs.47,000/- which was manufactured by the 1^st opposite party.  According to the complainant, the mobile handset showed some defects right from the beginning of its purchase.  The complainant was not able to use the mobile phone due to its inherent defects.  Immediately he had approached the 2^nd opposite party who is the authorized service centre of the 1^st opposite party the manufacturer to rectify the defect.  The complainant had entrusted the mobile handset with the 2^nd opposite party on 06.01.2016 and 09.05.2016 having job sheet No.41246550/160106/61 and 41246550/160509/04 respectively.  The 2^nd opposite party rectified the defects and returned the mobile handset to the complainant.  At the time of handing over the mobile handset, the 2^nd opposite party took back the above said job sheets from the complainant.  Exbt. A2 job sheets dated 16.08.2016 issued by the 2^nd opposite party shows that the complainant in the job sheet described by the 2^nd opposite party as flight mode and Wi Fi is not working.  According to the complainant after a month later, he was informed that the phone was repaired.  But couple of hours later, on receiving the phone, the same was showed further complaints of switching off automatically.  Again he submitted the mobile phone to the 2^nd opposite party on the very same day and they issued Exbt. B3 job sheet dated 09.09.2016 to the complainant.  But, the 2^nd opposite party failed to rectify the defect of the disputed mobile handset and delivered it to him.  Due to the non-availability of the mobile hand set the complainant had compelled to purchase a new phone.  The complainant again and again approached the 2^nd opposite party to return the gadget.  At last, the 2^nd opposite party orally informed the complainant that the phone sent to the 1^st opposite party for necessary replacement.  The complainant contacted the 1^st opposite party, through e-mail, but they did not respond to the complainant or did they take any steps either to rectify the defects of the disputed gadget or to replace it.  Exbt. A4 and A5 e-mail communications between the complainant and the 1^st opposite party clearly showed deficient service of the 1^st opposite party.  Exbt. A6 terms of warranty issued by the 1^st opposite party as available from their website shows that 1 year warranty was provided to the disputed gadget.

5)       In this case, the complainant purchased disputed mobile handset from the 2^nd opposite party dealer on 18.05.2015.  According to the complainant, the same has become defunct on 06.01.2016 ie., within 1 month from the date of its purchase.  The mobile phone showed many complaints and subsequently the same was of no use to the complainant.  On going through the Exhibits the mobile handset repeatedly showed defects and the complainant entrusted the same to the 2^nd opposite party on different occasions.  As per the Exbts. A2, A3 and proof affidavit filed by the complainant proves that the handset was entrusted to the 2^nd opposite party on 09.05.2016, 16.08.2016 and 09.09.2016 for curing the defects.  The opposite parties 1 and 2 miserably failed either to rectify the defects or to replace the disputed mobile handset to the complainant.  It is to be noted that till date the complainant has not received the mobile handset back for which he had paid a handsome amount of Rs.47,000/-.   Due to the non-availability of handset he was compelled to purchase a new one.  In the instant case there is deficiency in service happened on the side of the 1^st and 2^nd opposite parties, since the 1^st and 2^nd opposite parties denied their quality service to the complainant.  We are of the opinion that the 1^st and 2^nd opposite parties could not compensate their deficient service to the complainant.  The complainant was denied the facility of the mobile handset for long time and he was later forced to purchase another one.  Therefore, we find that the complainant is entitled to get refund of the price of the disputed mobile handset from the 1^st and 2^nd opposite parties.

6)       Issue No. (iii)

          We find that the issue Nos. (i) and (ii) are decided in favour of the complainant and the complainant has proved deficiency in service on the part of both 1^st and 2^nd opposite parties.  Naturally, the complainant had suffered a lot of inconvenience, financial loss, mental agony etc due to the above mentioned deficient service offered by the 1^st and 2^nd opposite parties which calls for compensation and costs of the proceedings.  We award an amount of Rs.5,000/- towards compensation and Rs.3000/- towards costs of the proceedings to the complainant.

7)       In the result, we partly allow the complaint and direct as follows:

1.    The 1^st and 2^nd opposite parties shall refund the price of the disputed gadget of Rs.47,000/- to the complainant.

2.       The 1^st and 2^nd opposite parties shall pay Rs.5000/- towards compensation for the mental agony suffered by the complainant and Rs.3000/- towards cost of the proceedings to the complainant.

3.       The liability of the 1^st and 2^nd opposite parties shall be joint and several.

The opposite parties are jointly and severally liable to pay the above amounts within 30 days from the date of service of a copy of this order, failing which the above amounts shall carry 12 interest p.a. from the 31^st day of the receipt of this order.

Pronounced in the open Forum on this the 23^rd day of August 2017.

                                                        Sd/-Sheen Jose, Member

   Sd/-Beena Kumari V.K., Member

Forwarded By Order

Senior Superintendent

By Post       ::

By Hand      ::

              APPENDIX

Complainant’s Exhibits:

Opposite party’s Exhibits:         Nil

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