<br /> COMPLAINT FILED: 31.07.2008<br /> <br /> BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE (URBAN)<br /> <br /> <br /> 27th SEPTEMBER 2008<br /> <br /> <br /> PRESENT :- SRI. A.M. BENNUR PRESIDENT <br /> SMT. M. YASHODHAMMA MEMBER <br /> SRI.A.MUNIYAPPA MEMBER <br /> <br /> COMPLAINT NO.1688/2008<br /> <br /> <br /> COMPLAINANT Managing Director,N.D.Thiwari,M/s. Jungle Lodges and Resorts Limited.,2nd Floor, Shringar Shopping Complex, M.G. Road,Bangalore.Advocate – Sri.G.R.PrashanthV/s.<br /> OPPOSITE PARTIES 1. M/s. Nokia Corporation,Keilalahdenite,2-4, FI-02150ESPOO,P.O Box.226,FI-00045 Nokia Group,FINLAND.Advocate – Sri.J.Bhaskar2. M/s. Waves Telecom,(A Unit of Silver Audio System Pvt Ltd)No.3, Shringar Shopping Complex,Opp. Brigade Garden,Church Street,Off Brigade Road,Bangalore – 560001.Advocate – Sri.L.Govindraj<br /> <br /> <br /> O R D E R<br /> <br /> <br /> This is a complaint filed U/s. 12 of the Consumer Protection Act of 1986 by the complainant seeking direction to the Opposite Party (herein after called as O.P) to pay a compensation of Rs.1,00,000/- and for such other relief’s on an allegations of deficiency in service. <br /> <br /> The brief averments, as could be seen from the contents of the complaint, are as under:<br /> <br /> Complainant purchased one Nokia mobile model No.N95 for a valid consideration of Rs.25,000/- on 30.10.2007 manufactured by the OP.1 through its authorized dealer OP.2. Within a span of a week or two complainant started noticing the problem with the said set. It was not functioning properly, audio was feeble, immediately he brought the said fact to the notice of OP.2. OP.2 on the receipt of the said instrument passed acknowledgement but unable to detect the defect and cure the same started giving evasive and untenable replies. The repeated requests and demands made by the complainant to OP either to replace the said set or refund the cost went in futile. Due to the non-availability of the services of the said mobile set complainant for no fault of his is made to suffer both mental agony and financial loss. Complainant issued the legal notice to OP on 29.03.2008. Again there was no response. The said defect is occurred within a warranty period. Under such circumstances complainant felt deficiency in service on the part of the OP. Accordingly he is advised to file this complaint and sought for the reliefs.<br /> <br /> 2. On appearance, OP.1 filed the version denying all the allegations made by the complainant in toto. According to them there is no expert evidence produced by the complainant to show that the said handset has got the inherent manufacturing defect. The problem if any faced by the complainant is due to mis handling and mis use of the said phone. For that OP can’t be blamed. OP is obliged to replace certain parts under the limited warranty, even the replacement of the defective handset depends on various considerations but complainant has not fulfilled the same. The whole of the complaint is devoid of merits. There is no proof that there is an inherent manufacturing defect in the said handset. Under the circumstances OP.1 is not obliged to pay the compensation.<br /> <br /> OP.2 filed version contending that he being the retailer, he is not obliged to pay the compensation. Complainant used the said phone extensively. Only after two months he brought it to OP.2 making some complaints. OP.2 received the same and noticed that there is a water logging. On examining the said handset OP.2 felt that there is need to change I.C for that complainant has to pay the money. Complainant is bound by the terms and conditions of the warranty. Water logging defect is not covered under the warranty. Under such circumstances OP.2 is not liable to pay any compensation. Complainant has suppressed certain material facts which are well within his knowledge. Complaint is devoid of merits. Among these grounds, OP.2 also prayed for the dismissal of the complaint.<br /> <br /> 3. In order to substantiate the complaint averments, the complainant filed the affidavit evidence and produced some documents. OP have also filed their affidavit evidence and produced the documents. Then the arguments were heard.<br /> <br /> 4. In view of the above said facts, the points now that arise for our consideration in this complaint are as under:<br /> <br /> Point No. 1 :- Whether the complainant has Proved <br /> the deficiency in service on the part of <br /> the OP?<br /> <br /> Point No. 2 :- If so, whether the complainant is <br /> entitled for the relief’s now claimed?<br /> <br /> Point No. 3 :- To what Order?<br /> <br /> <br /> 5. We have gone through the pleadings of the parties, both oral and documentary evidence and the arguments advanced. In view of the reasons given by us in the following paragraphs our findings on:<br /> <br /> Point No.1:- In Affirmative<br /> Point No.2:- Affirmative in part<br /> Point No.3:- As per final Order.<br /> <br /> <br /> R E A S O N S<br /> <br /> 6. At the outset it is not at dispute that the complainant purchased one Nokia mobile model No.N95 from OP.2 the dealer manufactured by the OP.1 on 30.10.2007 for a total cost of Rs.25,000/-. Now it is the grievance of the complainant that within a span of 10 days he noticed certain defect with the said mobile that too he was not getting proper hearing, audio was feeble. Immediately he contacted the OP.2. OP.2 having accepted the said phone for repairs issued the job sheets and promised to attend to the defect within 48 hours. Service job sheet is produced. It discloses the complaint with regard to power does not switch on and hang over and no water log. But the version of OP.2 mainly speaks to the water logging. That is the reason why there was some defect and there is need to change the I.C. So OP.2 is not very much sure about the defect noticed in the handset, it wants to breathe hot and cold to the reasons best known.<br /> <br /> 7. Surprisingly OP.2 has come up with the defence that the water logging is not covered under the warranty. The fact that complainant noticed the defect within warranty period is not at dispute. When the job sheet shows that there was no complaint with regard to water logging and the complaint is with regard to some other defect in the handset this defence of OP.2 does not hold force. OP.1 wants to wash of its hands contending that there is no expert evidence. We don’t find force in the said defence. <br /> <br /> 8. Having considered the facts and circumstances of the case the documents produced by the complainant in our view are able to prove prima-facie the defect in the said handset. Hence there is no need to produce expert evidence. According to OP.2 there was a water logging, but that fact is not stated by the OP.1 in their defence. So the defence of OP.1 & 2 is self-contradictory, they want to shirk to responsibility on one or the other flimsy reasons. <br /> <br /> 9. Complainant invested his hard earned money to get defect free handset. Unfortunately he is unable to reap the fruits of his investment. It is all because of hostile attitude of the OP. The defence set out by the OP itself discloses that they are unable to detect the defect and cure the same. When that is so, they are liable either to replace or refund the cost of mobile. Failure on their part to respond to the legal notice also amounts to deficiency in service.<br /> <br /> 10. Viewed from an angle we are satisfied that complainant is able to prove the deficiency in service on the part of the OP. Under such circumstances he is entitle for certain relief. In our view justice will be met by directing the OP to replace the said defective handset with a brand new defect free handset of the same model. In default refund the cost along with litigation expenses. With these reasons we answer point Nos.1 & 2 and proceed to pass the following: <br /> <br /> O R D E R<br /> <br /> The complaint is allowed in part. OP are jointly and severally directed to replace the defective mobile handset sold to the complainant with a brand new defect free of the same model within four weeks from the date of communication of this order and take back the defective handset. In default refund the cost of the mobile Rs.25,000/- within four weeks from the date of communication of this order and pay a litigation cost of Rs.1,000/-.<br /> <br /> (Dictated to the Stenographer and typed in the computer and transcribed by him, verified and corrected, and then pronounced in the Open Court by us on this the 27th day of September 2008.) <br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br /> <br /> Vln* <br /> <br /> <br />