Date of Filling     :  21.11.2013.

                                                                                                 Date of Disposal :  21.06.2016.

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR - 1.

PRESENT:  THIRU. S.  PANDIAN, B.Sc., L.L.M.,              …    PRESIDENT

                    TMT. S.  SUJATHA, B.Sc.,                           …    MEMBER - I

Consumer Complaint No.65/2013

(Dated this Tuesday the 21^st day of June 2016)

S.  Harshini,

D/o. Mr. A. Shanmugam,

Plot No.18, Pallat Street,

Thandurai Village,

Vigneshwar Nagar,

Pattabiram,

Thiruvallur District,

Chennai - 600 072.                                                                    … Complainant.

                                                          / Versus /

1. The Manager,

    Poorvika Mobile Pvt. Ltd.,

    B.o. No. 175, CTH Salai,

    (Near Avadi Bus stand),

    Avadi,

    Chennai - 600 054.

2. The Proprietor,

Samsung Mobile Service Centre,

Chennai - 600 072.                                   … Opposite parties.

This complaint is coming upon before us finally on 08.06.2016 in the presence of M/s. N.C. Ravichandran, Counsel for the complainant, M/s. S. Eswaran, Counsel for the 1^st opposite party and the 2^nd opposite party was set Ex-parte for non appearance and having perused the documents and evidences of the Complainant and the 1^st  opposite party this Forum delivered the following,

ORDER

PRONOUNCED BY THIRU. S.  PANDIAN, PRESIDENT

This complaint is filed by the complainant U/S 12 of Consumer Protection Act, 1986 against the opposite parties for seeking direction to pay a sum of Rs.1,00,000/- towards compensation for mental agony and hardship caused to the complainant with cost for deficiency of service.

1.      The brief averments of the complaint as follows:-

The complainant is doing 2^nd year M.B.B.S. Course had purchased a Samsung mobile viz model no.6102 from the 1^st opposite party on 01.01.2013 for a sum of Rs.9,000/- which has 1 year warranty.  The complainant’s mobile phone was insured with The New India Assurance Cellular Insurance Policy on the date of purchase and the 1^st opposite party has tie up with the said insurance company.

2.       The said mobile phone worked properly only for 2 months.   From 28.04.2013, the said mobile phone did not function and the complainant immediately approached the 2^nd opposite party, who is the authorized service center of Samsung Mobile.   But the 2^nd opposite party demanded Rs.3,500/- for repair works.  Then the complainant went to the 1^st opposite party and informed about the fact, the 1^st opposite party directed her to approach the 2^nd opposite party.  Therefore, again the complainant had approached the 2^nd opposite party, the 2^nd opposite party demanded necessary cost for repair works since, the insurance is applicable only for limited purposes which are mentioned in the details of the policy.  The said mobile got repaired within the warranty period, the 2^nd opposite party is responsible to service the same without cost.  But the 2^nd opposite party has not come forward to comply with the demands of the complainant. Therefore, the complainant had sent a letter dated 17.05.2013 through RPAD to the 1^st   opposite party for the gross deficiency of service on the part of the opposite parties and there is no response from him.   Hence, the complainant had undergone mental agony and hardship and this complainant has filed this complaint.

3.       The contents of the written version of the 1^st opposite party is briefly as follows:-

          The 1^st opposite party denies all the allegations made in the complaint.  The complaint is false and frivolous expect those that are specifically admitted herein.  The 1^st opposite party is the wholesale dealer for various cell phone companies.   As per dealership, the 1^st opposite party would purchase mobile phones with various companies thereafter, sell the mobile phones by way of their branches.  It is true that the complainant had purchased Samsung Mobile Model no.6102 with its accessories for a sum of Rs.9,000/- on 01.01.2013.  After satisfying with the features and conditions, the complainant purchased the said mobile phone and also utilized without any defect.

4.       The complainant’s phone got damaged and hence approached the 1^st opposite party during May 2013.  The staff of the 1^st opposite party advised the complainant that if there is any defect within the warranty period, shall approach the 2^nd opposite party being the authorized service centre of the Samsung Company.  The complainant approached the 2^nd opposite party to rectify the said phone and the 2^nd opposite party said that the defect in the complainant’s mobile phone will not come under warranty because it is not a manufacturing defect and it is only a physical damage caused by the complainant. 

5.       The complainant has taken insurance policy for the said phone with the New India Assurance Cellular Insurance Company.  As per the policy terms and conditions the insurance policy covers only for theft, accidental damages, fire, riot, strike Malicious damages and terrorist activities and not for the physical damage caused by the insurer and the same was clearly explained to the complainant.

6.       The 1^st opposite party is not responsible for any manufacturing defect and physical damages caused by the complainant.  The manufacturer is liable to compensate for the defect found in the complainant’s mobile phone.  The 2^nd opposite party is responsible to rectify the defects found in the complainant’s mobile phone.  The 1^st opposite party has been arrayed as an unnecessary party, hence the complaint against the 1^st opposite party may be dismissed.   The 1^st opposite party did not commit any deficiency of service to the complainant and hence the complaint is liable to be dismissed.

8.       In order to prove the case, on the side of the complainant, proof affidavit submitted for his evidence and Ex.A1 to Ex.A5 were marked.  While so, on the side of the 1^st opposite party, the proof affidavit is submitted for his evidence  and Ex.B1 and Ex.B2 were marked on his side.

9.       At this juncture, the point for consideration before this Forum is:-

1. Whether there is any deficiency of service on the part of the opposite parties as alleged in the complaint?

2. To what other reliefs, the complainant is entitled to?

10.    Written argument has been filed and oral arguments adduced on the side of the complainant.  Inspite of sufficient time given for filing of written arguments and for adducing oral arguments, the 1^st opposite party has not come forward neither to file the written arguments nor for oral arguments.  Hence written arguments on the side of the 1^st opposite party is closed.  

7.       Point no.1:-

Regarding this point, on careful perusal of the complaint as well as the proof affidavit, it is learnt that the complainant had purchased a Samsung mobile phone viz. model no.6102  from the 1^st opposite party on 01.01.2013 for a sum of Rs.9,000/- and the said mobile was insured on the same day.  The invoice cum delivery challan given by the 1^st opposite party is marked as Ex.A1.  The insurance policy jointly issued by the 1^st opposite party & The New India Assurance Cellular Insurance Company is marked as Ex.A2, which is also marked by the 1^st opposite party as Ex.B1.  After 2 months from the date of purchase, the said mobile phone suddenly got repair and immediately, the complainant approached the 2^nd opposite party.  The 2^nd opposite party demanded cost of Rs.3,500/- for repairing the mobile and thereby, the complainant was wandering here and there but there was no progress.  The complainant thereby underwent mental agony and hardship.  Therefore, the complainant sent a letter on 17.05.2013 to the 1^st opposite party through RPAD.  The postal receipt is marked as Ex.A3 but no reply from the 1^st opposite party till 10.06.2013.  Again the complainant had sent another letter dated 27.06.2013 to the 1^st opposite party through RPAD and the postal receipt for the same are marked as Ex.A4 & Ex.A5 respectively. Even thereafter, the opposite parties did not come forward to comply with the demand of the complainant which clearly amounts to deficiency in service and negligence on the part of the opposite parties.

8.       On the other hand, the 1^st opposite party would contend that he is only the wholesale dealer for various cell phone companies and infact, the 2^nd opposite party is the authorized service dealer and therefore, the 1^st opposite party has rightly directed the complainant to approach the 2^nd opposite party for rectifying the repair.  It is further stated that whenever the complainant had approached the 1^st opposite party due to mobile problem, to the welfare of the customer they have to make proper response and to do the service.  The 1^st opposite party is not responsible for any manufacturing defect and not only that, it is a physical damage caused by the complainant.   Hence the 1^st opposite  party is not a necessary party in this complaint.   Further, in the terms and conditions of the policy, Ex.B2 it has been clearly explained that the policy covers only for certain limited purposes and it was informed the complainant and hence there is no deficiency of service in such aspect also.

9.       At this juncture, on care perusal of the rival submissions put forth on either side, it is crystal clear that the complainant had purchased the said mobile from the 1^st opposite party as per Ex.A1 and had taken the insurance policy as per Ex.A2 are not a disputed one.   Such being so, on seeing the complaint the relief sought by the complainant is only for awarding compensation for causing mental agony, hardship and the negligent attitude of the opposite parties.  Hence, there is no question for replacement of new mobile as narrated in the written arguments filed by the complainant.

10.     First of all, regarding the 1^st opposite party, whether any deficiency of service has been made out or not? to be decided.   As per the averments made in the complaint, it is crystal clear that the 1^st opposite party is the wholesale dealer of various cell phone companies and  the complainant had purchased a Samsung mobile phone for Rs.9,000/- viz model number is 6102 to the complainant as per Ex.A1.  Similarly, it is an admitted fact that Ex.A2 was issued by the 1^st opposite party on the date of purchase.  Further, it is pertinent to note that the 2^nd opposite party is an authorized service centre for Samsung mobile phones only.   It is not at all disputed since the 2^nd opposite party remind ex-pare.  At the outset, it is learnt from the evidence of the complainant that the said mobile phone purchased by the complainant, suddenly got repaired after 2 months from the date of purchase which is within the warranty period and immediately, the complainant had approached the 1^st opposite party and inturn the 1^st opposite party directed the complainant to approach the 2^nd opposite party, who is the authorized service center. 

11.     At this point of time, the first allegation made by the complainant is that as per Ex.A2, the insurance policy, the repair should be done at free of cost.  In such circumstances, there is no dispute about the insurance policy Ex.A1 and Ex.B1 (which are one and the same) and also on going through Ex.B2 the terms and conditions of the policy, it is clearly mentioned as below:

The policy for the mobile phones provides cover against:-

1. Fire. 2.Riot, Strike, Malicious damage and Terrorist activities. 3. Theft.4. Accident. 5. Fortuitous circumstances.

6. Geographical Area of Coverage: (India) also will be covered only for certain things as mentioned above and thereby, the plea taken by the 1^st opposite party holds good.Therefore, the relief sought by the complainant against the 1^st opposite party as per Ex.A1 & Ex.B1 cannot be sustainable and thereby, there is no deficiency of service on the part of the 1^st opposite party and the same has not been proved by the complainant.

12.     In respect of liability against the 2^nd opposite party, it is pertinent to note that he is an authorized service centre for Samsung mobile.  It is also admitted by the 1^st opposite party in his written version as well as proof affidavit.  Furthermore, it is learnt from the proof affidavit of the 1^st opposite party that when the complainant had approached the 1^st opposite party, they advised the complainant to approach the respected company service center (2^nd opposite party) since the defect has been happened within the warranty period.   Not only that, considering the welfare of their customer, the staff of the 1^st opposite party forwarded the said complaint to the Samsung service centre (2^nd opposite party) to rectify the said mobile phone.   From the above said averments made both in the written version  and in the proof affidavit of the 1^st opposite party, it is crystal clear that the allegation made in the complaint by the complainant regarding the repairs occurred in the said mobile phone has already been referred to the 2^nd opposite party who is the authorized service center for Samsung Mobile phone limited. 

13.     It is further noticed that the alleged repair would have occurred within the warranty period.  So, it is needless to say that the duty bound on the 2^nd opposite party being the service centre to repair any defect without demanding any cost.  But per contra, the 2^nd opposite party demanded Rs.3,500/- in the first occasion and Rs.4,500/- in the subsequent occasion  when the complainant approached the 2^nd opposite party as alleged in the complaint.  More so, the 2^nd opposite party has not come forward to rectify the defects in the mobile phone which was purchased by the complainant from the 1^st opposite party without any valid reason.  The complainant was compelled to wandering here and there unnecessarily and thereby caused mental agony and hardship.  Such attitude of the 2^nd opposite party clearly amounts for gross negligence and deficiency of service and it has been proved by the complainant with relevant and sufficient evidence.  While so, inspite of sufficient opportunities given to the 2^nd opposite party, he has not chosen neither to appear before this Forum nor to rectify the defects as alleged by the complainant.  Therefore, there is no contra evidence placed before this Forum.  In such circumstances, this Forum can easily be drawn an adverse inference against the 2^nd opposite party.

14.     In the light of above facts and circumstances, this Forum has observed without any hesitation that the 2^nd  opposite party caused mental agony and hardship to the complainant due to the negligence and deficiency of service on their part.  Thus, point no.1 is answered accordingly.

15.     Point no.2:-

As per the view arrived in point no.1, the 1^st opposite party is not liable to pay any compensation to the complainant.But at the same time, the 2^nd opposite party is liable to rectify the defects, being the authorized service centre.But he has failed to do so.Therefore, the complainant is entitled to get reasonable compensation with cost from the 2^nd opposite party only.Thus, point no.2 is answered accordingly.

16.     In the result, this complaint is allowed in part.  Accordingly, the 2^nd opposite party is directed to pay a compensation of Rs.5,000/- (Rupees five thousand only) for causing mental agony and hardship due to deficiency of service on his part with cost Rs.2,000/- (Rupees two thousand only) to the complainant.  In respect of the 1^st opposite party, this complaint is dismissed.

The above amounts shall be payable within one month from the date of receipt of the copy of the order, failing which, the said amounts shall carry interest at the rate of 9.5% till the date of payment.

Dictated by the president to the steno-typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Forum on this 21^st  June 2016.

Sd/-****                                                                                        Sd/-****

MEMBER - I                                                                             PRESIDENT

List of documents filed by the complainant:-

List of documents filed by the 1^st opposite party:-

Sd/-****                                                                                        Sd/-****

MEMBER - I                                                                             PRESIDENT