Tamil Nadu

South Chennai

57/2010

V.Ravishankar - Complainant(s)

Versus

Motorola India Limited - Opp.Party(s)

J.Pazhani Karthik

23 Apr 2018

ORDER

                                                                        Date of Filing  : 24.12.2009

                                                                          Date of Order : 23.04.2018

 

DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, CHENNAI (SOUTH)

@ 2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai – 3.

PRESENT: THIRU. M. MONY, B.Sc., L.L.B, M.L.,                    : PRESIDENT

                 TMT. K. AMALA, M.A., L.L.B.                               :  MEMBER-I

 

C.C. No.57 /2010

DATED THIS MONDAY THE 23^rd DAY OF APRIL 2018

                    

1. V. Ravishankar,

S/o. Mr. K. Venkateswaran,

No.12, I Cross Street,

Kamakshi Amman Nagar,

Mangadu,

Chennai – 602 101.

 

2. Balachandar,

No.29, Sippay Line,

Karayanchavadi,

Poonamallee,

Chennai – 600 056.                                                   .. Complainants.                                                           ..Vs..

 

1. Motorola India Limited,

Represented by its Manager,

Motorola Excellence Centre,

No.415/2, Mehrauli,

Gurgaon Road, Sector 14,

Gurgaon – 122 001.

   

2. Redington India Pvt. Ltd.,

Rep. by its Manager,

No.550/136, Hallmark Tower,

Alwarpet,

Chennai – 600 018.

 

3. Univercell Telecommunications India Pvt. Ltd.,

Rep. by its Manager,

No.281, TTK Road,

Alwarpet, Opp. to More,

Chennai – 600 018.                                         ..  Opposite parties.

          

Counsel for complainant                 :  M/s. J. Pazhani Karthik &

                                                            another

Counsel for 1 & 3^rd Opposite party :  Exparte

For 3^rd Opposite party                     :  Party in person

 

ORDER

THIRU. M. MONY, PRESIDENT

       This complaint has been filed by the complainant against the opposite party under section 12 of the Consumer Protection Act, 1986 seeking replacement of a new mobile for the value of Rs.10,903/- having paid by the 1^st complainant towards purchase of the defective mobile phone and interest thereon at the rate of 12% per annum for a period of 1 year and 6 months, to pay a sum of Rs.50,000/- towards compensation for mental agony, loss of wages and physical sufferings suffered by the complainant and to pay the  cost of complaint.

1. The averments of the complaint in brief are as follows:

                The complainant has purchased a Motorola mobile phone model Moto Roker Z6 bearing IMEI no.355556010297333 for a sum of Rs.9240/- on 06.02.2008.  The complainant submits that the 1^st opposite party through advertisements and through the 3^rd opposite party had recommended and assured the best performance of the said mobile phone.    The 3^rd opposite party also informed the complainant that the 1^st opposite party will give replacement, if there are manufacturing defect in the mobile phone.   The complainant submits that from the very inception of purchase of the mobile phone, there are many manufacturing defects like camera operations, keypad operations, battery back up etc within one week of purchase.  The mobile phone has certain manufacturing defect.  Hence the complainant approached the 3^rd opposite party for due replacement.  The 3^rd opposite party refused to replace the mobile phone and directed the complaint to approach the 2^nd opposite party for repair and rectification of defects, who is an authorized service agents.  The 2^nd opposite party, on the instruction of 3^rd opposite party received and retained the mobile phone for repair on repeated occasions.  Further the complainant submits that at long last, on 04.05.2009, within the period of 3 months from the date of last repair the mobile phone gave some problems and was taken to the 2^nd opposite party for repair.  The 2^nd opposite party refused to repair the mobile phone and claimed huge amount towards cost of repair alleging that the warranty period expires which itself establishes the deficiency in service and unfair trade practice.   Hence the complainant issued legal notice dated:21.07.2009 for which, the opposite party has not sent any reply.  Hence the complaint is filed.

2.     Inspite of receipt of notice, the 1 & 3^rd opposite parties did not appear before this Forum and therefore the 1 & 3^rd opposite parties were set exparte.  

3.      The brief averments in the written version filed by the 2^nd  opposite party is as follows:

The 2^nd opposite party specifically denies each and every allegation made in the complaint and puts the complainant to strict proof of the same.   The 2^nd opposite party is an authorized service provider for the mobile handsets manufactured by Motorola and carrying on repair services during the warranty period as per the terms and conditions imposed on it by the manufacturer, without receiving any consideration from the customers.   The 2^nd opposite party submits that this complaint is not maintainable; either in law or on facts  because the 2^nd complainant is the actual purchaser and the 1^st complainant has no locus standi to file this case.   Further the 2^nd opposite party states that they have performed service at all the occasions, done replacement whenever necessary to the satisfaction of the complainants.  Further the 2^nd opposite party submits that in May 2009, the complainant brought the mobile phone with a complaint of “camera automatically switching and keyboard auto selection problem”, after checking and ascertaining the manufacturer website and informed that the warranty expired and claimed repair charges.  The 2^nd opposite party submits that from the very inception, the defects found in the mobile phone was time to time repaired.  Further the 2^nd opposite party submits that the service engineer gave an estimation of Rs.3,000/- + applicable taxes towards repair charges and after taking 2^nd complainant’s oral approval for the same.  Instead the 2^nd complainant had issued a notice dated:21.07.2009 and the 2^nd opposite party had again contacted the 2^nd complainant and requested him to collect the handset after payment of the repair charges.  But the 2^nd complainant had failed to collect the same for reasons known only to him.  The complaint against the opposite parties is frivolous, vexatious and the same is liable to be dismissed with costs.

4.   In order to prove the averments of the complaint, the complainants has filed proof affidavit as their evidence and documents Ex.A1 to Ex.A12 marked.  Proof affidavit of the 2^nd opposite party filed and no documents marked on the side of the  opposite parties.

5.      The point for consideration is:

1. Whether the complainants are entitled to replace the mobile as prayed for? Alternatively, whether the complainants are entitled to sum of Rs.10,903/- with interest as prayed for ?

2. Whether the complainants are entitled to a compensation of Rs.50,000/- with cost as prayed for?

6.      On point:-

Both parties filed their respective written arguments.   Perused the records namely complaint, written version, proof affidavits, documents etc.  Heard the opposite party’s Counsel also. The complainant pleaded and contended that they had purchased a Motorola mobile phone model Moto Roker Z6 bearing IMEI no.355556010297333 for a sum of Rs.9240/- on 06.02.2008 as per Ex.A1 is admitted. 

7.     Further the complainants pleaded and contended that the 1^st opposite party through advertisements and through the 3^rd opposite party assured the best performance of the said mobile phone.  But the 1 & 3^rd Opposite parties remained exparte in this case.  The 3^rd opposite party also informed the complainant that the 1^st opposite party will give replacement, if there are manufacturing defect in the mobile phone.  Further the complainants contended that from the very inception of the purchase of the mobile phone, there are many manufacturing defects in camera operations, keypad operations, battery back up etc.  Within one week of purchase, the mobile phone has certain manufacturing defect.  Hence the complainants approached the 3^rd opposite party for due replacement.  The 3^rd opposite party refused to replace the mobile phone and directed the complainants to approach the 2^nd opposite party for repair and rectification of defects, who is an authorized service agents.  The 2^nd opposite party on the instruction of 3^rd opposite party received and retained the mobile phone for repair on repeated occasions as per Ex.A4 to Ex.A8 proves that the mobile phone was having basic defect and created frequent problems in using. 

8.     Further the complainant contended that at long last, on 04.05.2009, within the period of 3 months from the date of last repair the mobile phone gave some problems and was taken to the 2^nd opposite party for repair.  The 2^nd opposite party refused to repair the mobile phone and claimed huge amount  towards cost of repair alleging that the warranty period expired  establish the deficiency in service and unfair trade practice.   But no scrape of paper has been produced before this Forum as evidence to show the nature of warranty.  In Ex.A1, Tax Invoice it reads as follows:

NOTE: “Mobile Handsets & chargers are warranted for a period defined by the respective manufacturers against defect in material & workmanship.  Univercell is not giving the warranty and does not hold out any warranty of products sold.  Univercell will not be responsible for any defective / deficient or otherwise unsatisfactory products.  Any such defective or deficient goods has to be repaired only by Authorised Service Centre of the Equipment manufacturer.  All the terms and conditions of Univercell apply.  Subject to Chennai Jurisdiction.  Goods once sold cannot be Returned or Exchanged” and there is no proof for the nature of warranty. Hence the complainant issued legal notice as per Ex.A9, for which, the opposite party has not sent any reply.  Hence the complainant is constrained to file this case for replacement of mobile phone alternatively, to pay a sum of Rs.9,240/- with interest and compensation.  The learned Counsel for the 2^nd opposite  party contended that, this opposite party is an authorized service provider for the mobile handsets manufactured by Motorola and carrying on repair services during the warranty period as per the terms and conditions imposed on it by the manufacturer  without receiving any consideration from the customers.  But the opposite party has not produced any warranty for the impugned mobile phone purchased by the complainant. 

9.     Further learned Counsel for the 2^nd opposite party contended that this complaint is not maintainable; either in law or on facts.  Because the 2^nd complainant is the actual purchaser and the 1^st complainant has no loco standi to file this case.  But on a careful perusal of the complaint, it is seen that the both the complainants are duly signed in this complaint and filed in this Forum.  Further the contention of the 2^nd opposite party is that they have performed service at all occasions, done replacement whenever necessary to the satisfaction of the complainant proves that from the very inception of the purchase, there are defects in the mobile phone and was one way or other rectified by the 2^nd opposite party is evident from  Ex.A4 to Ex.A8.  Further the contention of 2^nd opposite party is that in May 2009, the complainant brought the mobile phone with a complaint of “camera automatically switching and keyboard auto selection problem” as per Ex.A8.  This opposite party after checking and ascertaining the manufacturer website and informed that the warranty expired and claimed repair charges.  But from the conduct of the opposite party and from the mobile phone it is seen that from the very inception, there are different types of defects found in the mobile phone was time to time repaired.  Hence the allegation of expiry of warranty cannot arise and it shall automatically be extended.

10.    Further the contention of the 2^nd opposite party is that the mobile phone is ready for delivery after due repair and the complainant has to pay a sum of Rs.3000/- including taxes and take delivery of the same. But no document including  service details and job card filed before this Forum, proves the deficiency in service on the part of the opposite parties.  Considering the facts and circumstances of the case this Forum is of the considered view that,  the opposite parties shall replace the complaint mentioned mobile with a new one within one month, failing which, to pay a sum of Rs.9,240/- being the cost price of the mobile and to pay compensation of Rs.5,000/- with cost of Rs.5,000/-.

In the result, this complaint is allowed in part.  The  opposite parties 1 to 3 are jointly and severally directed to replace the Model MOTO ROKER Z6  mobile phone with a brand new one within one month, failing which, to pay a sum of Rs.9,240/- (Rupees nine thousand two hundred and forty only) being the cost price of the said mobile and to pay a sum of Rs.5,000/- (Rupees five thousand only) towards compensation for mental agony with cost of Rs.5,000/-  (Rupees Five thousand only) to the complainants.

The aboveamounts shall be payable within six weeks from the date of receipt of the copy of this order, failing which, the said amounts shall carry interest at the rate of 9% p.a to till the date of payment.

Dictated  by the President to the Steno-typist, taken down, transcribed and computerized by her, corrected by the President and pronounced by us in the open Forum on this the 23^rd day of April 2018. 

 

MEMBER –I                                                                       PRESIDENT

COMPLAINANT SIDE DOCUMENTS:

Ex.A1	06.02.2008	Copy of Invoice issued by the 3rd opposite party
Ex.A2	20.02.2008	Copy of Delivery challan
Ex.A3	28.02.2008	Copy of Delivery challan
Ex.A4	18.06.2008	Copy of Delivery challan
Ex.A5	17.09.2008	Copy of Delivery challan
Ex.A6	11.12.2008	Copy of Delivery challan
Ex.A7	31.01.2009	Copy of Customer receipt
Ex.A8	04.05.2009	Copy of Customer receipt
Ex.A9	21.07.2009	Copy of Legal Notice
Ex.A10	21.07.2009	Copy of Postal receipt
Ex.A11	22.07.2009	Copy of Acknowledgement card
Ex.A12	22.07.2009	Copy of Acknowledgement card

 

2^nd OPPOSITE  PARTY SIDE DOCUMENTS:  NIL

 

MEMBER –I                                                                       PRESIDENT