SMT.MOLYKUTTY MATHEW : MEMBER

        This is a complaint filed by the complainant U/S 35 of the Consumer Protection Act 2019  for an order directing  the OPs to take back the defective mobile phone and to pay the value of mobile phone Rs.21,499/- to the complainant along with Rs.50,000/- as  compensation for  mental agony caused to the complainant  and Rs.15,000/- as the cost  of the proceedings  for the deficiency in service and unfair trade practice on the part of OP’s.

The brief  of the complaint:

    The  complainant had purchased a smart phone worth Rs.21,499/- from 2^nd OP through an online platform dtd. 18/8/2020.  The complainant had purchased the mobile phone  only on believing  2^nd OP’s advertisement that Samsung M31S is of superior quality.  But the complainant started to using the  mobile phone from delivery date itself showing auto re starting issues and the complainant consulted 1^st OP and to rectify  the issues with the phone.  Then the 1^st OP informed the complainant that there is software issues and 1^st OP reinstalled the software.  Later the same issues persisted and  the complainant was not in a position to use the phone.  Thereafter 1^st OP directed the complainant that the issue can only be resolved by changing the motherboard of the  smart phone.  All this happened within 4 months from the purchase of the phone.  The motherboard of the complainant’s phone was replaced by 1^st OP.  The assurance  and  promise made by  2^nd OP that after replacement  such an issue will not persist and the motherboard wouldn’t have any further issues.  Then on 21/4/2022 the phones display became defective and the phone was out of warranty and the complainant was ready to pay for repair cost and  he paid Rs.4,818/-.  After the said repair the auto restart problem also arise and he again approached to 1^st OP.  Then the 1^st OP says that the phone is  out of warranty and the complainant must further pay for the repair costs.  The complainant submits that the 2^nd OP had sold the defective product  of inferior quality to complainant which is  continuous wants for repair.  Moreover, the complainant  is the General manager at a reputed star hotel in Kannur and was using the defective mobile phone for his personal and professional life.  The repeated reinstalling of software lead to loss of data in his phone every time which has seriously affected  his professional life.  The act of  OP’s  the complainant caused much mental agony and financial loss.  So there is deficiency of service and unfair trade practice on the part of OP’s.  Hence the complaint.

       After filing  the complaint notice issued to both OP’s.  1^st OP  received the notice and  not appeared before the commission  and not filed  version . The name of 1^st OP called  absent and set exparte. 2^nd OP  received the notice and  appeared before the commission  and  filed  his written  version.  2^nd OP contended that the complainant had not  arrayed the dealer of the product as a necessary party and this  case is bad for  non-joinder of necessary party.  Moreover, the manufacturer deny the liability of replacement/refund  of the  money as it is against the warranty conditions.  The product does  carry warranty only which  means product shall be  repaired free of cost  upto the  period of limited period from the date of  purchase.  The complainant has not contacted this OP at any point.  So there is no deficiency of service  on the part of 2^nd OP and  the complaint is liable to be dismissed.

         On the basis  of the rival contentions by the pleadings the  following  issues  were framed for consideration.

1. Whether there is  any deficiency of service   on the part of the opposite parties?
2. Whether the complainant is entitled for any relief?
3. Relief and cost.

     The evidence consists of the oral testimony of PW1 and  Exts. A1 to A5 were marked . On 2^nd OP’s side  no oral or documentary evidence produced. 

Issue No.1: 

      The  Complainant  adduced evidence before the commission by submitting  his chief affidavit in lieu of  his chief examination to the tune of the pleadings in the complaint and denying the  contentions in the version.  The complainant was cross examined as PW1 by  2^nd OP.   According to the complainant, as per Ext.A1 the  complainant had purchased M31s Samsung mobile phone for an amount of  Rs.21,499/- through online platform from 2^nd OP dtd.18/8/2020.  In Ext.A2 is the tax invoice of the computer generated document also.  After purchase of the mobile phone the  phone started showing auto restarting  issues.  Then the complainant informed  the matter to OP and  OP reinstalled the software.  But the phone continuing the same defects.  Then the complainant again approach  to 1^st OP dtd.2/12/2020.  As per Ext.A3 document the acknowledgment of service request  defect description noted as “device get stuck up then restart while using “ and the remarks noted as “data loss approved”.  So it is clear that after 2 months of purchase the product become defective.  Thereafter on 21/4/2022 the phone’s display became defective and the  complainant approach to 1^st OP and repaired the phone and he paid Rs.4818/- for the repair charge that showed in Ext.A4 document.  At that time the phone is out of  warranty and  he constrained to pay the cost of repair charge.  Thereafter the same problem contained in the phone and  the complainant again approached to 1^st OP on 24/5/2022 for the defect description  shown  as “auto restart while using” and the Ext.A5 shows the same.  According to the complainant in Exts.A3 to &A5 which clearly shows that the mobile phone  is showing  defects frequently within the delivery date itself as the product is having  manufacturing defect and the 2^nd OP is cheating the complainant by selling the product having manufacturing defect.  But the OP’s are not ready to  replace the mobile phone or refund  the value of  mobile  phone also.  So the complainant has not used the mobile phone smoothly after repair it is  due to some manufacturing defects.  In the evidence of PW1 before the commission stated that  “ chief affidavit 2^nd  page phone service ന് ഏല്പിച്ചപ്പോൾ 1ാം എതൃകക്ഷിയുടെ service ലെ പിഴവ് ആണെന്നു പറയുന്നത് ? ശരിയാണ്“. The act of  OP’s the complainant caused much mental agony and financial loss.  On  2^nd OP’s side except the version no other documents or evidence to prove their defense.  So there is  deficiency of service  and unfair trade practice on the part of  OP’s.  Hence the issue No.1 found in favour of the complainant and  answered accordingly.

Issue Nos.2&3:

        As discussed above the   2^nd OP is not ready to replace the mobile phone to the complainant.  The complainant produced Exts.A1 to A5 documents which clearly shows that the complainant had purchased the mobile phone worth Rs.21,499/- and  in the warranty period it becomes defective and not completely repaired by OP’s.  According to the complainant failure to replace the mobile phone the 2^nd  OP is directly bound to  redressal the grievance caused to the complainant.   Therefore we hold that the 2^nd opposite party is liable to refund the value of the mobile phone   for  an amount of Rs.21,499/- to the complainant along with  OPs 1&2 are jointly and severally liable to pay Rs.9000/- as compensation  for mental agony caused to the complainant  and Rs.4,000/- as litigation cost. Thus the issue No.2&3 are also accordingly answered. 

          In the result the complaint is allowed in part  directing the 2^nd  opposite party to refund  the value of  mobile phone for Rs.21,499/- to  the complainant and opposite parties 1&2 are jointly and severally liable to pay Rs.9,000/- as compensation  for mental agony caused to the complainant  and Rs.4,000/- as litigation cost  within  30 days of  receipt  of this order. In default the amount of Rs.21,499/- carries 12% interest per annum from the date of order till realization.  Failing which the  complainant is at liberty to  execute  the  order as  per the  provisions  of Consumer Protection Act 2019.  After the said proceedings the 2^nd opposite party is at liberty to take back the mobile phone from the complainant.

Exts:

A1&A2- Tax invoice dt.18/8/2020

A3&A5-Acknowledgment of service request

A4- Tax invoice dtd.21/2/22

PW1-Krishna Kumar .K.V

Sd/                                                         Sd/                                                     Sd/

PRESIDENT                                             MEMBER                                               MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR