F.A.No. 1419  OF 2006 AGAINST C.D.No.251 OF 2005
 DISTRICT FORUM GUNTUR

Between:

K.P.Subbaiah S/o Venkata Narayana
C/o Kurra Veeeraiah, Vijaya Nagar,
Ponnur, Guntur District                           Appellant/complainant

A N D

M/s Little Planet,
Rep. by its Proprietor
Raj Kamal Complex
Lakshmipuram, Main Road
Guntur                                                       Respondent/opposite party

Counsel for the appellant               Sri M.Hari Babu
Counsel for the respondent            Sri C.Gunaranjan

          QUORUM:      SRI SYED ABDULLAH, PRESIDING MEMBER
                                                        &

                              SRI R.LAKSHMINARSIMHA RAO, MEMBER

                        WEDNESDAY THE TENTH DAY OF JUNE                     

                                         TWO THOUSAND NINE

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

***

          The unsuccessful complainant is the appellant.

          The appeal is preferred against the order in C.D.No.250 of 2004 passed by the District forum, Guntur.

          The facts as set out in the complaint are that the appellant purchased Nokia Cell Phone model No.6600 for a consideration of Rs.13,400/- and for additional accessories, Rs.4600/- for a total amount of Rs.18,000/- from the respondent.  The respondent promised the appellant that facilities such as recording of VCR and VCP, film songs etc., are available in the piece which is a latest model.  The respondent promised the piece with warranty and service facility.  The facilities, were found not available in the piece.  The respondent repaired the piece by collecting Rs.100/- from the appellant and one week thereafter again the apparatus developed problem like non-functioning of Blue Tooth and Infrared facility.  The respondent advised the appellant to send the piece to their service centre at Vijayawada.  Accordingly the mobile phone was got repaired at the service centre of the respondent.  Subsequently, the respondent repaired the piece for two times by collecting an amount of Rs.200/- from the appellant.  Even after the repairs the mobile phone had not functioned properly.  Therefore the appellant demanded for replacement of the piece with a new piece.  The respondent requested the appellant that they are not connected with the issue, only the manufacturer of the piece can replace it with a new piece.  The respondent abused the appellant.  On 20.6.2005 the appellant got issued notice to the respondent with a demand for replacement of the piece with a brand new piece or in the alternative to pay the amount of Rs.18,000/- towards cost of the piece which was paid by him.  There was no response from the respondent to the notice which was refused to be received by the respondent.  Therefore, the complaint filed by the appellant seeking an amount of Rs.28,700/- from the respondent. 

          The claim was resisted by the respondent.  It was contended that the Nokia cell phone was delivered in a sealed box to the appellant.  The dealer of the manufacturer is Nokia Corporation represented by Nokia Phone Division and their authorized service centre is at Vijayawada.  The respondent would get rectified any defect in the piece by their authorized service centre.  Except referring the piece to the service centre, the respondent has no role to play in the matter. The limited warranty provided to the cell phone is subject to several conditions mentioned in the user guide.  As per the conditions of the warranty the piece will not be replaced and the defect only will be rectified.  The manufacturer of the product Nokia Corporation and its dealer at Vijayawada are proper and necessary parties to the complaint.  The complaint is bad for non-joinder of necessary parties.  The appellant has not deposited the piece before the District Forum.  He has been using the cell phone even during pendencey of the complaint.  The cell phone has been functioning properly.  There is no defect at all in the cell phone sold by them to the appellant.

          The District Forum has dismissed the complaint for the reason that the appellant has not made the manufacturer of the cell pone party to the complaint and the appellant failed to explain the manufacturing defect stated to have been found in the cell phone purchased by him from the respondent. 

          The point for consideration is whether the appellant is entitled to the relief sought for?

          There is no dispute in regard to the sale of the Nokia 6600 model cell pone by the respondent to the appellant for a consideration of Rs.13,400/- and an additional amount of Rs.4600/- towards the cost of additional accessories.  Thus a total sum of Rs.18,000/- was collected by the resonant from the appellant towards sale consideration of cell phone.  The contention that the facilities regarding VCR, VCP and film songs though promised to be available on the phone, they were found to be not available, is not supported by any evidence except the affidavit filed by the appellant.  In the notice dated 20.6.2005 all the while complaint was made against the problems posed by the cell phone and there is no whisper of any promise said to have been made by the respondent offering the mobile phone with facilities of VCR, VCP, film songs.  In the absence of any evidence, we do not find any force in the contention of the appellant.

          The District Forum observed that the appellant failed to explain the manufacturing defect stated to have been found in the cell phone.  There is an averment in the complaint that the blue tooth and infrared  facilities were not functioning and in addition to this the complaint, the letter dated 20.6.2005 addressed to the respondent also contains a problem relating to the non-functioning of FS Caller and frequent repairs to the cell phone.  Therefore it cannot be said that a manufacturing defect was found in the cell phone. The appellant has not examined any expert nor filed any expert’s opinion.   However, it remains a fact that the cell phone necessitated frequent repairs which were attended by the respondent as is evident by the letter dated 20.6.2005 addressed to the respondent which was proved to have been sent through Speed Post vide postal receipt No.432 dated 20.6.2005 and it was also established that the letter was delivered to the respondent as seen from the reply dated 8.8.2005 to the query of the appellant, issued by the postal authorities.  Having received the letter wherein the problems posed by the cell phone and the attitude exhibited by the respondent towards appellant and the demand made by the appellant for replacement of the cell phone with a brand new phone have been categorically mentioned and the respondent had chosen not to give any reply or response to the letter.  In the circumstances it can be safely presumed that though there was no manufacturing defect in the cell phone purchased by the appellant, the cell phone posed frequent problems and it was not a problem free cell phone.

          The appellant ha snot impleaded the manufacturer of the cell phone.  It is true that in the case of manufacturing defect the dealer alone cannot be held liable and the liability of the dealer is joint with the liability of the manufacturer.  In the absence of any manufacturing defect in the cell phone the finding of the District Forum that the complaint is bad for non-joinder of manufacturer of the cell phone is not sustainable.

          The respondent has provided the cell pone with warranty and during the period of warranty, the problems developed in the cell phone.  It is the duty of the respondent to get the defects/problems developed in the cell phone during the warranty period rectified.  In stead of doing that the respondent has charged the appellant on different occasions stating that it was the conveyance charge for taking the phone to the authorized service centre of Nokia Cell Phones at Vijayawada.  The respondent committed deficiency in service by collecting the charges from the appellant whenever the problem arose in the cell phone.  As seen from Ex.A1 and A2, the respondent is the dealer of Nokia cell phones at Guntur.  It is their duty to attend on any or all the problems that developed during the warranty period in the cell phone sold by them to the appellant.  As aforesaid the respondent had committed deficient service which caused hardship and mental tension to the appellant.

          The appellant claims refund of Rs.18,000/- paid by him to the respondent towards cost of the cell phone.  It is settled law that where a manufacturing defect is found in the product, the product in entirety cannot be directed to be replaced with a product of same brand.  The only remedy is to replace the defective part therein.  In the instant case, the blue tooth, infrared and FS caller facilities have stated to have bee not functioning properly.  The cell phone was to be taken to the respondent for several times whereby the appellant was subjected to harassment as also by the attitude exhibited by the respondent.  In the circumstances we feel it just and proper to direct the respondent to provide fresh warranty for a further period of six months from the date of receipt of this order and we hold the appellant entitled to compensation, a sum of Rs.2,000/-.

          In the result, the appeal is allowed setting aside the order of the District forum.  The respondent directed to provide fresh warranty for a period of six months from the date of receipt of this order and pay Rs.2,000/- to the complainant.  There shall be no order as to costs.

                                                                    PRESIDING MEMBER

                                                                                MEMBER

                                                                             Dt.10.06.2009