BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 308/2004 Filed on 02.08.2004

Dated : 30.09.2010

Complainant:

Vinod Jacob, Kananayakkal House, Pipe Line Road, Peroorkada, Thiruvananthapuram.

(By adv. K.P. Jayaraj)

Opposite parties :

1. M/s Nokia Care, Supreme Telecommunications Ltd., 1^st Floor, South Square Building, S.A. Road, Manorama Junction, Cochin-682 036.

    

2. M/s Nokia Care, Supreme Telecommunications, Nokia Care Centre Company, Rahija Plaza, Next Foot Ball Junction, Commissionerate Road, Banagalore.

    

3. M/s Power Link, T.C 14/1017, Opp: Trivandrum Club, Vazhuthacaud, Thiruvananthapuram.

    

   (By adv. Nair Ajay Krishnan)

    

4. M/s Cell Tech Systems, T.C 41/454, Sastham Koil Street, Thycaud P.O, Thiruvananthapuram.

    

5. M/s HCL Safe Guard, Opp: Trivandrum Club (Wholesale Distributor of Nokia Cell-Phones in Kerala).

    

6. National Insurance Company Ltd., HCL Safeguard Mobile Insurance Scheme, DD XVII, 12 Community Centre, East of Kailash, New Delhi-11065.

(By adv. N. Chandrasekharan Nair)

This O.P having been heard on 15.07.2010, the Forum on 30.09.2010 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

Complainant had bought a Nokia Cell Phone bearing model No. 6610 IME No. 351350403720984 from the 4^th opposite party on 11.06.2004 after paying an amount of Rs. 8,600/-. After some days of use, the mobile phone set developed troubles and was not working properly. The battery was automatically showing low power and as a result the set was automatically being switched off, was tuning on when battery was inserted, messages received cannot be unlocked. So the above set was given to the 3^rd opposite party for rectifying the above defects vide job sheet No.4688 dated 06.07.2004. The 3^rd opposite party assured that the set would be given back in very good working conditions. After taking back the set after repairs the said hand set again developed the same defects and hence the complainant could not use it. So the handset was again given for rectifying the defects, on 10.07.2004. till date the above set has not been returned after repairs. The complainant submits that the above set could not be used properly any more. Due to delivery of defective set the complainant suffered undue hardships and huge mental agony. The complainant states that his mother was under treatment. During the said period, due to the defect in the said hand set, timely enquiries could not made and as a result also the complainant suffered hardships. The official work of the complainant was also affected during the said period of treatment of his mother. The complainant estimates an amount of Rs. 3,000/- as compensation to compensate him for the hardships and sufferings caused above due to the supply of defective hand set. The period of warranty of the set is also not over yet. In the above circumstances the complainant was forced to send lawyer's notice to the opposite parties 1 to 4 demanding replacement of the defective set with a defect free new hand set and also to pay an amount of Rs. 3,000/- as compensation. The opposite parties have not heeded the request so far. The complainant has no other remedy other than to approach this Hon'ble Court for appropriate remedies. 1^st and 2^nd opposite parties are the authorised representatives of Nokia Company. 4^th opposite party is the authorized dealer, 3^rd opposite party is the authorized repairing centre and 5^th opposite party is the whole sale distributor of Nokia Company. And as such the opposite parties are legally and morally bound to compensate the amount of Rs. 3,000/- claimed as compensation and also to replace the above said defective hand set with a defect free new hand set or to return the purchase price of the hand set of Rs. 8,600/-. 6^th opposite party is National Insurance Company. At the trial stage, complainant submitted to exonerate the 6^th opposite party from liability.

In this case the 3^rd opposite party, M/s Power Link only has contested the case. 6^th opposite party was exonerated from the liability. In the version 3^rd opposite party stated that the complainant on 10.07.2004 came to the 3^rd opposite party's service centre complaining that his handset fell into water and now the power of the set does not switch on. The opposite party immediately informed the complainant that liquid damage as per the warranty terms was not covered by warranty and that the opposite party as a measure of goodwill shall forward the same to the 1^st opposite party and in case the same could be repaired by them, it would be duly done and returned. The handset was returned by the 1^st opposite party stating that the instrument was beyond repair and being liquid damage nothing could be done in this regard since the issue was not covered by warranty and even if it was to be repaired at the instance of the complainant it was not economically feasible as the cost of repairing/replacing the PCB would be more than the price of a new handset. The complainant was informed of the same. Suppressing this fact the complainant has instead issued a notice and filed this complaint. The 3^rd opposite party further submitted the warranty and guarantee with respect to mobile phones are given by the manufacturer and not by local service providers like this opposite party. The warranty given by the manufacturer “liquid damage” is not covered and is specifically mentioned in the warranty card. The opposite party further submitted that no loss has been sustained by the complainant due to any act of the opposite party. Hence the 3^rd opposite party is no way liable to compensate the complainant.

In this case the complainant has filed proof affidavit and he has produced 5 documents which were marked as Exts. P1 to P5. 3^rd opposite party has also filed affidavit. Other opposite parties remained exparte.

Points that would arise for consideration are:-

1. Whether there has been deficiency in service and unfair trade practice occurred from the side of opposite parties?

2. Whether the complainant is entitled to get the reliefs and costs?

Points (i) & (ii):- It is an admitted fact that the complainant had purchased a Nokia Cell Phone bearing Model No. 6610 IME No. 351350403720984 from the 4^th opposite party on 11.06.2004 after paying an amount of Rs. 8,600/-. Ext. P1 is the invoice dated 11.06.2004. But after some days of use the mobile phone developed trouble and was not working. To cure the defect, the set was entrusted to the 3^rd opposite party vide job sheet No. 4688 dated 06.07.2004. Ext. P2 is the job sheet. Nowhere in the job sheet it has been noted that the defect was due to water damage. There is specific column in the job sheet to record water damage. In the version the 3^rd opposite party stated that at the time of entrusting the phone to them the complainant stated that his phone fell into water and in furtherance of that the phone does not switch on. Ext. P2 document is the evidence that the contention of the 3^rd opposite party is utter false. If the damage is due to water damage, definitely opposite party should note it in the job sheet. Ext. P3 is the certificate of insurance. Ext. P4 is the returned notice issued by the complainant to the 1^st opposite party. Ext. P5 is the postal receipts of the issuance of notice. The handset is still now in the custody of 3^rd opposite party. The main contention of the 3^rd opposite party is that the damage was due to liquid damage, that liquid damage was not covered by the warranty. 3^rd opposite party stated that the handset was sent to the 1^st opposite party. The 1^st opposite party informed that the defect was beyond repair and being liquid damage, it is not covered by warranty. In this case the defective hand set is still now in the custody of the opposite parties. But the opposite parties never turned up to prove their contention that the defect was due to liquid damage. As per the warranty conditions it is not covered by warranty. Hence it is the duty of the opposite parties to prove that contention to defend the case. But they never turned up to do so. From that we find that the defect was not due to liquid damage. In this case the complainant has no need to take proceedings under Sec. 13(1)(c) of Consumer Protection Act for expert opinion, since the defective handset is with the opposite parties. As per the decision cited as MRF Ltd. Vs. Jagadish Lal 1999(4) SCC 315 : AIR 1999 SC 2035 the complainant has not taken procedure contemplated in Sec. 13(1)(c) of the Consumer Protection Act. It is the duty of the opposite parties to cure the defects of the handset and to return it to the complainant if repairable or replace it or refund the price of the mobile phone to the complainant because the defect had occurred within the warranty period. The complainant paid Rs. 8,600/- for purchasing the mobile phone. But due to the defect of the handset he could not use the set. The opposite parties have not repaired the set and not returned it to the complainant till date. They have admitted that the handset is beyond repairing condition. Hence it is the duty of the opposite parties to replace it with a new one or refund its price. The opposite parties never turned up to settle the matter and moreover they strongly contested the case with baseless and unjust allegations. From the evidences adduced by the complainant we find that there is deficiency in service and unfair trade practice from the side of 1^st and 2^nd opposite parties. Hence the complaint is allowed.

In the result, 1^st and 2^nd opposite parties are directed to pay Rs. 8,600/-, the price of the handset to the complainant with 12% annual interest from 06.07.2004 till the date of realization and shall pay Rs. 3,000/- as compensation and Rs. 2,000/- as costs of the proceedings. The 1^st and 2^nd opposite parties are jointly and severally liable for the same. The defective hand set is within the custody of the 3^rd opposite party. The 1^st and 2^nd opposite parties shall have the right to receive that set from the 3^rd opposite party.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of September 2010.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

S.K. SREELA : MEMBER

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O.P. No. 308/2004

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Vinod Jacob

II COMPLAINANT'S DOCUMENTS :

P1 - Cash Bill/Invoice dated 11.06.2004

P2 - Service Job Sheet dated 10.07.2004

P3 - Insurance cover

P4 - Acknowledgement cards

P5 - Postal receipts.

III OPPOSITE PARTY'S WITNESS :

DW1 - G. Sreekantan Nair

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT

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