THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.
C.C. 347/2014
Dated this the 17th day of June 2016
(Smt. Rose Jose, B.Sc, LLB. : President)
Smt.Beena Joseph, M.A : Member
Sri. Joseph Mathew, MA, LLB : Member
ORDER
Present: Joseph Mathew, Member:
This petition is filed Under Section 12 of the Consumer Protection Act 1986.
The petitioner is now working as A.M.V.I of Motor Vehicle Department. His case is that, while he was working as Asst. Manager M/s.Hover Automotive India, he was highly in need of a smart phone having modern specifications. While so lured by the attractive and colourful advertisement made by the 1st OP regarding the pre-launch offer of smart phone Auxus Nuclea N1, a product of the 3rd OP @ Rs.1333/- in 12 months EMI, he paid Rs.15990/- plus an additional amount of Rs.479.70 to the 3rd OP using credit card and they delivered the phone on 07.08.2013. As per the Web site of the 3rd OP the said phone is having 4.2 operating system with 1.5 GHZ MT 6589T quad core, lightning fast web browsing, splashy battery back up like 12 hours standby time up to 250 hours, sensor camera and several other unique specifications.
It is stated by the petitioner that, from the 1st day of its use it is found that contrary to the offers of the 1st & 3rd OP the battery showed poor performance of 7 hours of standby time and around 40 minutes of talk time and also found that the performance of the phone is very poor in all aspects. When complained to the 3rd OP, they informed that the battery of the device is 2800 mah and normally takes more time to charge and the battery back up will gradually increase in accordance with the usage. But even after days of use, the problem persists and then the 3rd OP directed to re-install the firmware. But after re-installing the Firmware also there was no improvement in the performance of battery and there started new problems like switching off of the phone etc.
As suggested by the 3rd OP the battery was changed with a new one delivered by them but no betterment. Finally as directed by the 3rd OP he entrusted the phone with the 5th OP, their authorized service centre. They tried to rectify the defects but failed. After few days they told him that, they could not cure the defects and informed that they themselves will take steps for replacing the phone with a defect free new one. But till date the opposite parties have not replaced the same with a defect free new one.
According to the petitioner the said phone is having manufacturing defect and the sale of such a defective product on pretext that it is of high quality is unfair trade practice and also deficiency in service on the part of the opposite parties and that caused much hardships, financial loss and other untold difficulties in his profession. Hence this petition is filed to direct the opposite parties to replace the defective phone with a defect free new one, and to pay him Rs.1,00,000/- as compensation for his sufferings and also cost of the proceedings.
The opposite parties received the notice issued from this Forum but they did not appear or filed version. Hence they set ex-parte.
The petitioner filed affidavit and produced documents 8 in numbers and those were marked as Exts.A1 to A8 as evidence on his side. Ext.A1 is the copy of the e.mail notification dtd.15.07.2013 by the 1st Opposite party. A2 is the copy of the technical features and specifications with regard to the said smart phone uploaded by the 3rd opposite party. Ext.A5 is the copy of warranty issued by IBERRY to the petitioner. Other documents are the copies of e-mail communications with the opposite parties on different dates regarding the poor performance of the battery and other specifications of the said phone. Ext.A3 proves that the petitioner had paid Rs.15990/- to the 3rd OP as the price of the phone and they have received the same. Ext. A6 to A8 proves that the petitioner had informed the poor performance of the phone to the opposite parties within the warranty period. The opposite parties did not file version or challenged the veracity of the documents produced. Thus the averments of the petitioner stands unchallenged and proved.
Considering the facts stated and relying on the evidence adduced by the petitioner, we are of the view that the said act of the opposite parties amounts to unfair trade practice and also deficiency in service on their part. The petitioner demanded Rs.1,00,000/- as compensation for his sufferings but in the absence of evidence to prove his exact loss the said amount could not be allowed. But considering the nature of his job it is evident that he had suffered much difficulties due to that and hence we are of the view that allowing Rs.10,000/- as compensation in this regard is quite reasonable. As the manufacturer, its Managing Director and its authorized service centre, the 3rd , 4th & 5th opposite parties are liable to compensate the petitioner.
In the result the following order is passed. The 3rd, 4th & 5th opposite parties are jointly and severally ordered to replace the defective phone of the petitioner with a defect free new AUXUS NUCLEA N1 phone and to pay him Rs.10,000/-(Rupees ten thousand only) as compensation and Rs.1000/-(Rupees one thousand only) as cost of the proceedings within 30 days from the date of receipt of this order. If not replaced, pay back its purchase price of Rs.15990/-. The opposite parties can take back the defective phone on compliance of this order.
Dated this the 17th day of June 2016.
Date of filing:03.07.2014
SD/-MEMBER SD/-PRESIDENT SD/-MEMBER
APPENDIX
Documents exhibited for the complainant:
A1.Copy of the email Notification dtd.15.07.13 issued by the 1st OP.
A2.Downloaded copy of the Technical features and specification uploaded by the 3rd OP
A3. copy of email sent by the 1st OP as receipt of money dtd.17.07.13.
A4. copy of email sent by the 3rd OP regarding the registration dtd.10.08.13.
A5. Copy of email by the opposite partyNo.3 dated regarding backup dtd.06.09.13.
A6. Downloaded copy of the email dtd.28.09.13 and 07.11.13, the complaint and its
reply by the 3rd OP
A7. Copy of the email communication made by the 3rd OP in consonance with the denial
of warranty.
A8. Copy of email as to the communications dtd.28.01.14 and 26.02.14 in frequency with
the direction given by the Opposite party No.3 and reply.
Documents exhibited for the opposite party:
Nil
Witness examined for the complainant:
Nil
Witness examined for the opposite party:
None Sd/-President
//True copy//
(Forwarded/By Order)
SENIOR SUPERINTENDENT
