BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM VAZHUTHACAUD, THIRUVANANTHAPURAM. PRESENT SRI. G. SIVAPRASAD : PRESIDENT SMT. BEENAKUMARI. A : MEMBER SMT. S.K.SREELA : MEMBER C.C. No. 248/2008 Filed on 20.10.2008 Dated : 16.02.2009 Complainant:
Anil. S.K, Elangam, GNRA-B-20, Kudappanakunnu P.O, Thiruvananthapuram – 43.
Opposite parties:
Minnux Mobile, Kairali Complex, Thakaraparambu, Thiruvananthapuram.
Redington India Ltd., T.C 15/1805(2), First Floor, Mahesh Estates, Thiruvananthapuram.
This O.P having been heard on 12.01.2009, the Forum on 16.02.2009 delivered the following: ORDER SMT. S.K.SREELA: MEMBER
The facts leading to the filing of the complaint are as follows: The complainant who had purchased the mobile from the 1st opposite party had entrusted the same on 06.03.2008 with the 2nd opposite party for repairing as the microphone had some trouble. It was returned after 18 days, but the complaint persisted. Thereafter the complainant had entrusted the phone with the 2nd opposite party several times and each time it was returned without curing the defects. The complainant who is a doctor by profession had to suffer hardships due to the defects in the phone. According to the complainant, the main cause for the trouble is due to inbuilt internal mechanical problems. Hence this complaint for replacement of the defective phone with a new one or for refund of the price along with compensation and costs.
The opposite parties did not appear before the Forum or file their version, hence they were set exparte. Complainant has filed affidavit and marked Exts. P1 to P4. Complainant has not been cross examined and hence his affidavit stands unchallenged. The defective mobile phone and its accessories have been marked as MO1.
The points that would arise for consideration are:- Whether the phone supplied to the complainant is defective? Whether there is deficiency in service on the part of the opposite parties? Whether the complainant is entitled for any of the reliefs claimed?
Points (i) to (iii):- The complainant alleges that the mobile phone purchased by him from the 1st opposite party became defective and though it was entrusted for repairs with the 2nd opposite party the defects still persist. Complainant has produced Ext. P1 to prove the purchase of MO1. The IMEI No. as per Ext. P1 and the IMEI No. mentioned in Exts. P2 and P3 are the same, which go to prove that the phone purchased as per Ext. P1 has been entrusted with the 2nd opposite party for repairing. Exts. P2 and P3 evidences that the complainant had entrusted one Motorola L7 phone bearing IMEI No. 35941100059 2606 for repairing to the 2nd opposite party. This IMEI No. tallies with the one mentioned in Ext. P1. The complainant has pleaded that the defects are still there. Ext. P4 proves that the complainant had informed the 2nd opposite party with regard to the persistence of the defects. The opposite parties have never cared to contest the case, nor have they filed any version. The records on file reveal that the phone was not functioning properly well within the period of warranty itself. The averments produced on behalf of the complainant prove that the phone became defective during the period of warranty. The complainant had approached the 2nd opposite party for repairing the MO1. The failure of the 2nd opposite party in not attending to the repairs properly inspite of repeated complaints by the complainant is a gross deficiency in service in the manner and nature of performance on the part of the 2nd opposite party resulting loss to the complainant. It was the responsibility of the 2nd opposite party to rectify the defects in time. The allegations in the complaint are not challenged by the opposite party. The deposition of the complainant stands uncontroverted as none appeared and contested for the opposite party despite service of notice. Moreover, when the opposite party has not contested the case or even cared to appear before this Forum to deny the allegations levelled against them, there is no necessity of following the procedure laid down in Sec. 13(1) of the Act. The fact that the 2nd opposite party has failed to provide proper service has been proved conclusively by the complainant. The very fact that the mobile phone developed defects within the warranty period and had to be taken several times to the 2nd opposite party is enough to hold that the mobile phone had defects. As per Ext. P1, execution of mobile warranty is the responsibility of mobile authorized service centres and accordingly the 2nd opposite party has failed to fulfil their obligations under the warranty. The fact that the complainant has suffered due to defective phone has been established. Hence the 2nd opposite party is found liable to compensate the complainant.
As per the terms and conditions printed in Ext. P1, it has been stipulated that 'goods once sold will not be taken back'. This itself is a violation of the Government Order. As per rules, bills should not carry such conditions. Hence we direct the 1st opposite party not to issue bills hereinafter carrying the condition “Goods once sold will not be taken back”. In the light of the above discussions it is found that the mobile phone has become defective during warranty period and the failure of the 2nd opposite party in not attending to the repair and after sales service in time inspite of various complaints by the complainant is a gross deficiency in service in the manner and nature of performance on the part of the 2nd opposite party resulting loss to the complainant. The complainant is found entitled for either replacement of the mobile phone or refund of the sale price paid. Obviously, the improper functioning of the phone would have caused loss to the complainant, it is practically impossible to bring out in evidence the actual monetary loss, inconvenience and mental sufferings caused to the complainant. Considering the facts and circumstances of the case, we find that an amount of Rs. 2500/- would be reasonable to compensate the same. The complainant is also found entitled for an amount of Rs. 500/- towards costs of the proceedings.
In the result, the 2nd opposite party shall replace the defective MO1 mobile phone with a defect free same model, new mobile within a period of one month failing which the 2nd opposite party shall refund Rs. 6,800/- (Rupees six thousand eight hundred only) with 9% interest from the date of order to the complainant. The opposite parties shall jointly and severally pay to the complainant an amount of Rs. 3,000/-(Rupees three thousand only) towards compensation and costs. On compliance of the above order, the 2nd opposite party shall take back the MO1 from the Forum.
A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.
Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the day of 16th February 2009.
S.K.SREELA : MEMBER
G. SIVAPRASAD : PRESIDENT
BEENAKUMARI. A : MEMBER
C.C. No. 248/2008 APPENDIX I COMPLAINANT'S WITNESS : NIL II COMPLAINANT'S DOCUMENTS :
P1 - Photocopy of cash/credit bill dated 09.05.2007 for Rs. 6800/- issued by the 1st opposite party. P2 - Photocopy of customer receipt issued by the 2nd opposite party. P3 - Photocopy of service call report issued by the 2nd opposite party. P4 - Photocopy of letter dated 24.06.2008 issued by the complainant to the 2nd opposite party.
III OPPOSITE PARTY'S WITNESS : NIL IV OPPOSITE PARTY'S DOCUMENTS : NIL
PRESIDENT
......................Smt. Beena Kumari. A
......................Smt. S.K.Sreela
......................Sri G. Sivaprasad | | 
