O R D E R

Smt. Sheela Jacob (Member-II) :

                    The complainant has filed this complaint against the opposite parties for getting a relief from the Forum.

                  2. The case of the complainant in brief is as follows:   The complainant purchased Sony Mobile company Xperia C3 model mobile phone from the 1^st opposite party on 26.11.2014 by paying Rs.20,990/-.  The 1^st opposite party had issued the cash bill and user’s manual offering one year warranty to the complainant.  The complainant has took insurance also from the 1^st opposite party by paying an additional amount of Rs. 1,749/-.  After 3 days said phone became defective.  The matter was intimated to the 1^st opposite party on 09.12.2014.  As per the directions of the 1^st opposite party, the complainant came to the service center of the 2^nd opposite party and showed the phone for repair.  The complaints are no clarity for the pictures captured with the mobile camera, phone is getting hanged, overheating net work complaint etc.  The defects were cured by updating the software.  But after two months, the said mobile phone again became defective.  The matter was intimated to the service center of the 2^nd opposite party on 09.02.2015.  He replaced the main camera and updated software.  But the complainant’s complaint was not rectified.  This matter was intimated to the service centre of the Sony customer service center at Kottayam and Thiruvalla- Thukalassery  Madona Care Service Center also.  They had given direction to the customer executives.  But the complainant’s complaint was not rectified.  The phone was not in working condition even after its rectification.  In these circumstances the complainant requested the 1^st opposite party for the replacement of the mobile phone.  But he had not taken any possible steps to redress the grievance of the complainant so far.  The complaint of the mobile phone was occurred during the warranty period.  The refusal on the part of the opposite parties to repair the mobile phone during the warranty period is a clear deficiency in service and the opposite parties are liable to the complainant for the same.  Hence this complaint for an order, directing the opposite party to refund the price of the mobile phone Rs.20,990/- and insurance amount of Rs.1,749/- along with compensation of Rs.25,000/- and Rs.15,000/- as cost of this proceedings.

           3.  In this case 1^st opposite party and additional 3^rd opposite parties are exparte. 

                    4.  2^nd opposite party entered appearance and filed version with the following contentions.  The 2^nd opposite party admitted the sale of the mobile phone to the complainant.   It is also admitted that they received a complaint from the complainant regarding the defect of the mobile phone.  The opposite party had returned the mobile phone in perfect working condition after all necessary services. On 09.02.2015, again the complainant approached him complaining the same defect in his phone that “Back camera not clear”.  The complainant had taken mobile insurance so the 2^nd opposite party replaced the main camera of the handset and returned with perfect working condition.  Thereafter the complainant never made complaint to the 2^nd opposite party.  The 2^nd opposite party performed his duty with utmost good faith and care.  The 2^nd opposite party has not committed any deficiency in services or unfair trade practice with the above contentions.  2^nd opposite party prays for the dismissal of the complaint.

                    5. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?

                   6.  The evidence of the complainant consists of the oral depositions of PW1.  Exts. A1 to A6 and Ext.C1 marked.  After closure of evidence, both sides were heard.

                   7. The point:-  The complainant’s allegation is that the mobile phone manufactured by the 3^rd opposite party purchased by him from the 1^st opposite party became defective within the warranty period.   The complaint is relating to lack of clarity of mobile pictures over heating etc.  The mobile phone was repaired by the 2^nd opposite party.  But subsequently the same complaint arose on several times.  However they have not rectified the defects of the mobile phone.  The above said acts of the opposite party is a clear deficiency in service and hence opposite parties are liable to the complaint.

                   8. In order to prove the case of the complainant, complainant adduced oral evidence as PW1 and 6 documents were produced which are marked as Exts.A1 to A6 and Ext.C1.  Ext.A1 is the bill dated 26.11.2014  issued by the 1^st opposite party in the name of the complainant for Rs. 20,990/- in respect of the mobile phone in question.  Ext.A2 is the copy of the insurance certificate issued by the New India Assurance Company Ltd.  Ext.A3 is the retail invoice bill dated 09.12.2014.  Ext.A4 is the retail invoice bill dated 09.02.2015.  Ext.A5 is the warranty card issued by the 1^st opposite party offering one year warranty.  Ext.A6 is the paper publication against the additional 3^rd opposite party.    Ext.C1 is the commission report.

                  9.  On the other hand the contention of the 2^nd opposite party is that the mobile phone in question had no manufacturing defects and the complaints of the phone reported by the complainant were properly repaired and replaced the main camera of the hand set.  They have not committed any deficiency in service as alleged by the complainant.

                  10. Though 2^nd opposite party have raised such contentions, they have not adduced any oral or documentary evidence in their favour, but they have cross examined PW1.

                 11.  On the basis of the contentions and arguments of the parties, we have perused the entire materials on record and found that the complainant purchased a mobile phone from the 1^st opposite party for Rs. 20,990/- on 26.11.2014 with warranty for one year and it became defective on the 3^rd day of its purchase itself.  It was not rectified by the opposite party in spite of the validity of the warranty.  But according to the contesting 2^nd opposite party, the reported complaints were properly rectified by them.  Though the contesting opposite party raised certain contention in their favour, they have not adduced any cogent evidence for supporting their contentions.  But in the cross examination of PW1 deposed that, “രണ്ടാം എതൃകക്ഷിയിൽനിന്ന് എനിയ്ക്ക് service deficiency ഉണ്ടായിട്ടില്ല  . രണ്ടാം എതൃകക്ഷിക്കെതിരെ എനിക്ക് ആക്ഷേപം ഇല്ല. രണ്ടാം എതൃകക്ഷി repair centre ആയതിനാൽ കക്ഷി ചേർത്തിട്ടുള്ളതാണ്.”  The 1^st and 3^rd opposite parties are exparte and there is no reason to disbelieve the allegations of the complainant, the complainant’s allegation stands proved against 1^st and 3^rd opposite party as unchallenged.  Therefore, we find that opposite parties 1 and 3 have committed deficiency in service to the complainant and they are liable to the complainant for the same.  Hence this complaint is allowable against the 1^st and 3^rd opposite parties.

                    12. In this case, an expert commissioner was appointed to check the mobile phone in question.  The commissioner report is marked as Ext.C1.  In the Ext.C1 commission report the commissioner reported that the defect of the set is manufacturing defect and it is not repairable.

                   13. In the result, this complaint is allowed, there by the 1^st and 3^rd opposite parties are directed to replace the mobile phone with a new phone of the same brand along with insurance amount of Rs.1749/- (Rupees One Thousand seven hundred and forty nine only) compensation of Rs.10,000/-(Rupees Ten Thousand only) and cost of Rs. 3,000/- (Rupees Three Thousand only) within 15 days from the date of receipt of this order, failing which the complainant is allowed to realize Rs.20,990/- (Rupees Twenty Thousand Nine hundred and ninety only) and insurance amount Rs.1,749/- (Rupees One Thousand seven hundred and forty nine only) along with compensation and cost ordered here in above with 10% interest per annum from today till the realization of the whole amount.

         Declared in the Open Forum on this the 29^th day of February, 2016.

                                                                                           (Sd/-)

        Sheela Jacob,

        (Member – II)

Sri. P. Satheesh Chandran Nair,   (President)       :    (Sd/-)

Smt. K.P. Padmasree, (Member – I)                      :    (Sd/-)

Appendix:

Witness examined on the side of the complainant:

PW1  :  Noble V. Abraham

Exhibits marked on the side of the complainant:

A1  :  Bill dated 26.11.2014 for Rs.20,990/- issued by the 1^st opposite party

         in the name of the complainant

A2 :   Insurance certificate issued by the New India Assurance Company Ltd. 

A3 :   Photocopy of retail invoice bill dated 09.12.2014 issued by the

         2^nd opposite party in the name of the complainant. 

A4 :   Photocopy of retail invoice bill dated 09.02.2015 issued by the

         2^nd opposite party in the name of the complainant. 

A5 :   Warranty card issued by the 1^st opposite party offering

          one year warranty. 

A6 :   Paper publication against the additional 3^rd opposite party. 

Witness examined on the side of the opposite parties:  Nil.

Exhibits marked on the side of the opposite parties:  Nil.

Court Witness:  Nil

Court Exhibits:

C1  :  Commission Report   

                                                                                              (By Order)

Copy to:- (1) Noble V.Abraham, Vellamkuzhiyil Veedu, Chellakkad,

                    Pazhavangadi Village, Ranni Taluk, Pathanamthitta Dist.                              (2)  The Proprietor, Mobile Planet, Chit Chat, Thiruvalla.

     (3)  The Manager, Madona Care Center, 26/170  Ramanchira,

           M.C Road, Thukalasseri, Thiruvalla.        

     (4) Sony India Pvt. Ltd, A-31, Mohan Co-operative Industrial Estate,

          Mathura Road, New Delhi – 110044 (India).

     (5) The Stock File.