OF 2008 AGAINST C.C.NO.121 OF 2007 DISTRICT CONSUMER FORUM ANANTAPUR

Between

K.Amjad Basha S/o late K.Dastagiri Saheb
Aged about 50 years, Indian, Occ; Advocate
D.No.13-1-681, Revenue Colony, Anantapur

                                                                Appellant/complainant

        A N D

N.Naveen Kumar
Proprietor NSM Electronics
D.No.13/78, Giriyappa Complex,
Opp. Vijaya Eye Clinic, Beside
Police Welfare Complex, Kalamalangar
Anantapur.

                                                                Respondent/opposite party

Counsel for the Appellant             Sri V.Gourisankara Rao

Counsel for the Respondent          Sri N.Harikrishna

 QUORUM:          

 SRI SYED ABDULLAH, HON’BLE MEMBER

&

                            SRI R.LAKSHMINARSIMHA RAO, HON’BLE MEMBER

                                TUESDAY THE SIXTEENTH DAY OF NOVEMBER

                                            TWO THOUSAND TEN

Oral Order ( As per R.Lakshminarsimha Rao, Member)
                                      ***

1.     The complainant is the appellant.  He has filed the appeal challenging the order of the District forum.  The appellant has filed the complaint stating that the respondent did neither repair nor return his mobile phone even after collecting `1000/- towards repair charges. 

2.     The respondent has resisted the claim contending that he had not promised the complainant to make the mobile phone a new piece and that he has advised the appellant to go for a new piece since the prices of mobile phones were drastically coming down instead of getting the mobile phone repaired. 

3.     The complainant filed his affidavit and documents Exs.A1 to 9.  The opposite party has filed his affidavit and got marked Ex.B1.

4.     The District Forum has dismissed the complaint on the premise that the complainant has not proved any deficiency in service in regard to repair of the mobile phone by the opposite party.

5.     Being aggrieved by the order of the district forum the complainant has filed the appeal contending that the opposite party has not informed him prior to the issue of notice dated 4.10.2007 about the damage and replacement of ICs and that the opposite party failed to repair the mobile phone of the complainant. 

6.     The point for consideration is whether the impugned order suffers from misappreciation of fact or law?

7.     The complainant had handed over his mobile phone Nokia N70 on 20.9.2007 to the opposite party to rectify the display problem.  The mobile set was purchased for a consideration of `14,000/- at Thobar Kingdom of Saudi Arabia on 7.1.2007 on a warranty provided for a period of five years from the date of purchase.  The opposite party collected an amount of `1,000/- as advance for the purpose of repairs of the mobile phone and broke open the seal of the handset in the presence of the complainant.  Thereafter, the circumstances obtained leading to the filing of complaint before the District Forum goes to show that the complainant made a statement that the opposite party postponed to return the handset which resulted the issuing of notice dated 4.10.2007 for which the opposite party issued reply and thereafter the complainant has got another notice dated 9.10.2007 issued to the opposite party.  The contention of the complainant is that the opposite party had broke open the seal of the handset leading to the deprivation of his privilege from replacement of spare parts free of charge offered by the manufacturer of the phone. 

8.     The opposite party has opened the seal of the phone in the presence of the complainant and replaced the display module. The parties had exchanged allegations against one another in the shape of legal notice and reply notice prior to the stage of carrying on the matter to the District Forum.  The complainant has contended that the opposite party had not informed him about replacement of ICs for a long time and consequently he was compelled to issue registered notice for the second time on 9.10.2007 whereas the opposite party has contended that at the time of inspection of the phone in the presence of the complainant on 20.9.2007 he has informed the complainant of the spare parts i.e., ICs to be replaced besides the replacement of display module.  Reply notice dated 6.10.2007 supports the contenton of the opposite party that he had issued an estimate for `4500/- for replacing of the display module and ICs besides the service charges.  The contents of the reply notice would also support that the complainant was requested to pay Rs.1000/- advance out of the amount of Rs.4500/- demanded by the opposite party for replacement of the spare parts and service charges. 

9.     The contention of the complainant that he was deprived of the privilege of replacement of spare parts free of charge on account of breaking open of the seal by the opposite party despite his request to the opposite party that the breaking open of the seal would deprive him of the benefits conferred by the warranty, has no legs to stand owing to the revelation made by the statement of the complainant in his affidavit as also the pleadings in the complaint that the opposite party had break opened the seal of the mobile phone in his presence in order to look into the difficulty posing parts and for the necessary action. Having consciously permitted the opposite party to break open the seal of the hand set,  it is not left open to the complainant to contend that the opposite party by breaking open of the seal of the mobile phone has deprived him of the benefits of the warranty furnished by the manufacturer of the phone.

10.    The notices got issued by the complainant on both occasion i.e., 4.10.2007 and 9.10.2007 would not in any manner support his case much less the delay alleged to have been caused for return of the phone to him.  The complainant had paid `1000/- out of `4500/- to the opposite party on 20.9.2007 and agreed to pay the balance amount which ultimately was not paid nor the complainant visited the shop of the opposite party despite the reply notice dated 6.10.2007 wherein he was requested to pay Rs.4500/- or take back the mobile phone along with the amount paid by him. 

11.    In the circumstances of the case and taking into consideration of the offer extended by the opposite party and the relief prayed for by the complainant, we are inclined to allow the complaint directing the opposite party to repair the mobile phone on receipt of an amount of Rs.3,500/- from the complainant.

12.    In the result the appeal is allowed.  The order 31.1.2008 of the District forum is set aside.  The complaint is allowed directing the opposite party to repair the mobile phone within one week from the date of receipt of an amount of Rs.3500/- from the complainant.  No costs.

                                                                                MEMBER

                                                                                MEMBER
                                                                            Dt.16.11.2010

KMK*