By Smt. Beena. M, Member:
Brief facts of the case:- The complainant filed the complaint under section 12 of the Consumer Protection Act with allegation that on 02-09-2017 he had purchased a mobile phone bearing IMEI No. (1) 358058070508128 for a sum of Rs.10,800/- from opposite party No.1, manufactured by opposite party No.2. At the time of purchase, the first opposite party confirmed that the particular phone is the best available and all type of service and replacement is free of cost for the period of one year and by believing these words, the complainant purchased the phone. The respondents guaranteed one year guarantee for software as well as hardware of the product. Thereafter in the month of November 2017 the complainant found damages in the phone as no network, hanging of the phone, over heat by using short time, then he approached opposite party No.1 on November 2017 itself with the above said problem. The first opposite party collected the mobile and after one week returned said mobile, but in the month of July, 2018 again the phone had shown the same problems. Finding no other alternative, the complainant again approached the first opposite party and produced the phone before the first opposite party on 17-07-2018. On 31-07-2018 the first opposite party returned the phone stating that the board of the phone is damaged and demanded Rs.5,000/- for repairing the defect. The complainant was not ready to pay the amount since the damage occurred within the period of warranty. Then the first opposite party returned the phone. By the time the complainant noticed that the phone is fully damaged and not even possible to switch on the phone. Thereafter on several occasions, the complainant approached the first opposite party to cure the defect, but he is not ready to provide proper service and remedy. Then the complainant contacted second opposite party through phone, but did not provide any remedy. Due to the act of the opposite parties the complainant could not use mobile phone or contact his near and dear ones. At present the mobile phone is not useful to the complainant. The complainant strictly believes that the mobile phone damaged is due to manufacturing defect and due to the defect of service provider. Hence the complainant filed this petition seeking relief such as to direct the opposite parties to replace the defective phone with new one or else repay its cost with 12% interest per annum and further direct the opposite party to pay Rs.50,000/- as compensation together with interest and costs.
2. The forum registered a case and issued a notice to the opposite parties. After service of notice, opposite parties entered appearance and filed detailed version. First opposite party admitted the purchase of the phone and denied the
other allegations alleged against him. He further stated that he is only a retail seller of the second opposite party and he is not liable to cure defect of the phone and the 2nd opposite party is only liable to cure defect, if there is any complaint regarding the phone.
3. The second opposite party filed separate version and denied the averments of the complainant. The second opposite party says that during November 2017, on 13-11-2017 the hand set was received at the Authorized Service Centre of this opposite party at Wayanad alleging that the user faces network issues at times. Upon inspection, it was found that there are minor damages on the Charging board/sub board and after thorough inspection it was found that damage was caused due to charging of hand set using an uneven or broken power source. Even the damage was customer induced, and customer induced damage is a clear exclusion of warranty, so as to maintain good relationship with customer this opposite party replaced the board free of cost. Thereafter till day no one has approached the authorised service centre or this opposite party for service of the particular handset involved in this case. There are no latches or deficiency in service on behalf of the 2nd opposite party and he is not liable to pay compensation also.
4. On perusal of complaint, versions and documents the Forum raised the following points for consideration:-
1. Whether the opposite parties are liable to replace the mobile phone or
return the price?
2. Whether any deficiency of service occurred from the opposite parties
side?
3. Whether the complainant is entitled to get compensation?
4. Relief and cost.
5. Point No. 1 to 4 :- For the sake of convenience and brevity all points are considered together.
6. Evidence adduced by the complainant by way of proof affidavit and documents. Complainant examined as PW-1 and Ext. A-1, A2 and MO-1 were marked. Ext. A1 is the bill dated 2/09/2017 issued by the first opposite party, Ext.A2 is the warranty card of the mobile phone. The documents produced by the complainant and the allegations set forth in the complaint are challenged by the 2nd opposite party. The opposite parties have not adduced any oral or documentary evidence. We have heard the arguments on both sides and perused the entire documents on record including written argument filed by opposite party No.2.
7. So looking to the circumstances & facts of the case, we are of the view that, it is an admitted fact that complainant’s mobile handset was defect under the warranty period, for that the complainant has produced two documents i.e. purchase bill and warranty card, which are marked as Ext.A1 & A2. Therefore the Ext. A1 document shows that the complainant had purchased mobile handset on 2/09/2017 and Ext.A2 shows that the mobile handset was got problem within the warranty period. No doubt opposite party No.1 received the said set on November 2017 for repairing as there was some defects. Thereafter the opposite party received the mobile on 17/07/2018 for repairing. But ultimately this phone could not be used by the complainant smoothly. Here facts remains that the manufacturer through their service centre failed to give proper service. Now the question is what is the purpose of purchasing the mobile set by a customer? Invariably for the purpose of using it daily & if defect is always found day to day after purchase then there was no necessity to purchase such a defective handset mobile. No doubt complainant as per warranty clause submitted the same again and again but manufacture’s service centre failed to remove such defect and ultimately handed over the said mobile set. On going through the available records and submissions there is no dispute regarding the purchase of mobile hand set by the complainant from the First opposite party which was manufactured by the Second opposite party. The second opposite party argued that there is no manufacturing defect and the complainant never approached the authorised service centre and not made any service request till the expiration of warranty.
8. It is true that the phone is damaged. But the second opposite party alleges that the complainant did not inform the second opposite party. However, if the phone manufactured by the second opposite party is malfunctioned, the second opposite party has a duty to find out and repair it without cost. As an ordinary consumer, he or she would first approach with the damaged product in the same shop where the product was purchased. The First opposite party has not produced any evidence that the complainant has not approached him with the defective mobile hand set. The second opposite party submits that the first opposite party is not the service centre of the second opposite party and he is not at all responsible for any act of the 1st opposite party. But there is no case for the second opposite party that the defective phone was not manufactured by them. The second opposite party through their argument note stated that the damage was caused due to charging of handset using an uneven or broken power source. Here the second opposite party is failed to prove that statement. The complainant had proved that the phone purchased by him was manufactured by the second opposite party and that it was sold by the first opposite party as a retailer of the second opposite party.
9. Mobile phone malfunction is a common complaint among consumers. As a manufacturer, they have a responsibility to repair the damaged product in the event that it is subsequently damaged. They could not simply escape from their responsibility and wash their hands saying lame reasons and hyper technicality. Here the opposite parties failed to rectify the defect of the mobile which arose within the warranty period, this amounts to deficiency in service. The opposite parties have committed deficiency in service. So the complainant is entitled for the refund of the price of the mobile phone along with compensation and cost.
In the result, the complaint is partly allowed and the opposite parties are jointly and severally directed to refund the cost of the mobile set in question being Rs.10,800/- (Rupees Ten Thousand Eight Hundred only) within one month from this order with 9% interest till actual payment. That the complainant is directed to handover the mobile handset to the opposite party No.1, after receiving the decreed amount further directed to pay Rs.5,000/- (Rupees Five Thousand only) as compensation and Rs.1,000/- (Rupees One Thousand only) as cost of the proceedings.
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 31st day of January 2020.
Date of filing :16.08.2018
PRESIDENT: Sd/-
MEMBER : Sd/-
MEMBER : Sd/-
APPENDIX.
Witness for the Complainant.:-
PW1. Ajil Johny Complainant
Witness for the Opposite Parties:-
Nil.
Exhibits for the Complainant:
A1. Bill. dt:02.09.2017.
A2. Warranty Card.
MO1. Mobile Phone.
Exhibits for the Opposite Parties:-
Nil.
