SMT.MOLYKUTTY MATHEW : MEMBER

             This is  a  complaint filed  by the complainant under sec.12 of the Consumer Protection Act 1986 for an order directing  the  opposite parties   to replace a new phone or  to pay the value and to pay  compensation of  Rs.10,000/-  to the complainant for the deficiency of service on their part.

      The case of the complainant in brief:-

  The complainant had purchased  Asus mobile phone with serial  GBAXB7010416 NZZ

For an amount of Rs.9400/- on 21/1/2017 from 1^st OP.  1^st OP  has assured  12 months  warranty from 21/1/2017.  Thereafter the mobile phone become defective  very 2^nd week  from the date of purchase.  The speaker of the phone was not working and frequent breaks while  speaking over the phone to others.  On 2/6/2017 the complainant entrusted the phone  to 2^nd OP for repair.  But on 9/6/2017 after  inspection  the 2^nd OP returned the mobile phone to the complainant and stated that the sub board was replaced and it will not have any further complaint.  Then after one month  the phone became absolutely useless.  Then the complainant contacted  opposite parties 2&3 for rectification.  But 2^nd OP states that the  1^st OP ‘s brand names are manufactured by Asus  Technology and the  company may be impleaded.  Then the manufacturing company was impleaded as 3^rd OP on 13/3/2018.  But the opposite parties neither repair the mobile  set nor to replace another  mobile set  within the warranty period.  So  there is  deficiency of service and unfair trade practice on the part of Ops.  Hence the complaint.

             The Ops entered appearance before the commission and submitted their written version.  Ist OP  contended that they are  only  the dealer of mobile phone.  Ops 2&3  are responsible for  repair and warranty of the phone.  On 2/6/2017 the phone was brought before 2^nd OP due to defect.  On 9/6/2017 the same was returned  saying that the sub board was replaced.  But o after one month the phone became absolutely useless.  The complainant states that the defects caused due to the manufacturing defect on the part of 3^rd OP.  But  3^rd OP is not admitted the manufacturing defect and 3^rd OP is not liable  either  to replace  the phone or refund the price .  So the  opposite parties are bound to paid seriously.  There is no deficiency of service and unfair trade practice  on the part of                    opposite parties.  The complaint is liable to be dismissed with cost.

    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 on merit  of the  oral testimony of PW 1  and marked as Exts.A1 to A4. No oral evidence from the  side of Opposite parties  and no documents marked.

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. He was  not cross examined by  opposite parties .  The documents Exts.A1 to A4 marked as his part to substantiate PW1’s case.  According to the complainant the phone was purchased on 21/1/2017 as per Ext.A1   invoice bill from 1^st OP.  As per Ext.A2 warranty card there is 12 months warranty for the phone.  But on 2/6/2017 the complainant entrusted the phone to 2^nd OP for repair and on 9/6/2017 the mobile phone returned by  2^nd OP to  complainant stating that  the sub board  was replaced. Then after one month the phone became useless also.  Ext.A3 is lawyer notice and  Ext.A4 acknowledgment card.  So the Ops bound   either to repair the phone  at free of cost or refund.  Since the opposite parties denied  to replace the phone.  There is deficiency of service on their part.

   The Ops  vehemently stated  there is no deficiency of service on their part.  Since there is not supported to replace the phone customer warranty conditions.  On perusal of the pleadings, documents, evidence and arguments, we the  commission hold that the mobile phone which was purchased on 2/1/2017 became defective after two weeks and  on 2/6/2017 the complainant entrusted the phone to 2^nd OP ie, within  6 months after the date of purchase.  2^nd OP also admitted in the  same.  Though 3^rd OP is the manufacturer, no steps were taken by them to prove that there was no manufacturing defect.  So we are of the considered view that opposite parties 1 and 3 were liable  either to repair  or replace the set under warranty.  Since they failed to do so.  We hold that there is deficiency of service and unfair trade practice on the part of  opposite parties 1&3.    Hence the  issue No.1 found in favour of the complainant and answered accordingly.

Issue No.2&3:

  As discussed above the mobile phone purchased by the complainant became defective within 2 weeks after the purchase.  There is no expert proof about the manufacturing defect of the  phone.  More allegations without concrete evidence cannot be accepted.  So we hold that the opposite parties are directly bound to redress the grievances caused to the complainant.  It is an evident before the commission that the complainant was forced to purchase another new phone due to the deficiency of service on the part of Ops.    There is privity of contract between 1st opposite party, dealer and the complainant.  Therefore we hold that the opposite parties 1&3  jointly and severally liable to refund Rs.9400/- to the complainant along with Rs.2500/- as compensation and Rs.1500/- as litigation cost.  Thus the issues No.2&3 are also accordingly answered.

      In the result, the complaint is allowed in part directing the  opposite parties 1 and 3  jointly and severally liable to refund Rs.9400/- to the complainant along with Rs.2500/- as compensation and Rs.1500/- as litigation cost.  within  30 days of  receipt  of the order,   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 opposite parties 1&3 are at liberty to take back the mobile phone from the complainant.

Exts:

A1-Invoice bill

A2- Warranty card

A3-lawyer notice

A4-Acknowledgment card

PW1- V.P.Suresh-complainant

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PRESIDENT                                  MEMBER                            MEMBER                                

eva                                                         

/Forwarded by Order

SENIOR SUPERINTENDENT