By Sri. Chandran Alachery, Member:

The complaint filed under section 12 of the Consumer Protection Act for an order directing the Opposite parties to replace the defective mobile with a new one and copy the datas from defective mobile to the new one or to refund the cost of the mobile hand set Rs.19,455/- and 12% interest from 20.01.2015 till realisation of the amount, to pay an amount of Rs.1,800/- being the conveyance expense, to pay Rs.2,500/- being the compensation for unfair trade practice and to pay cost of Rs.1,500/- being the cost of proceedings.

2. Complaint in brief:- The Complainant purchased the hand set on 19.01.2014 and on the very same day onwards the set had some defects. It was informed to 1^st Opposite Party. The net connection is not correct, Google search, road map and others not properly connected. On 22.01.2014 the Complainant entrusted the set to 1^st Opposite party. Then the Opposite party informed the Complainant that the sim card is of BSNL, So the BSNL only can rectify the defects. When the Complainant approached the BSNL, they connected the net but it was not success. The hand set is hanging while talking on 22.12.2014, the hand set had hanged and the Complainant could not restart it. The 1^st Opposite Party directed the Complainant to 2^nd Opposite Party. The Complainant approached the 2^nd Opposite Party on 26.12.2014 and the 2^nd Opposite party informed the Complainant that the problem is on the board of the set and advised to replace the board. But the 2^nd Opposite Party did not hand over the set after rectification and the set was dead on 16.01.2015. Since the defect is manufacturing defect, the Opposite parties have to replace the set. Aggrieved by this, the complaint is filed.

3. On receipt of complaint, notice was issued to Opposite parties and Opposite Parties appeared before the Forum and filed version. In the version of 1^st Opposite party, 1^st Opposite party admitted the sale of mobile on 19.01.2014. All other allegation are false and denied. The 1^st Opposite Party stated that the defect of the mobile is not the defect of set but BSNL connection. It was rectified and the Complainant never approached the 1^st Opposite party again. The Complainant approached the 2^nd Opposite Party directly. The 2^nd Opposite party offered free service to mobile but the Complainant want replacement. This Opposite party is not liable for the incident. There is no unfair trade practice from the part of 1^st Opposite party and there is no deficiency of service from the part of 1^st Opposite party. In the version of 2^nd Opposite party, 2^nd Opposite party stated that the Complainant purchased the mobile on 19.01.2014 and the set had one year warranty. The complainant brought the set for repair only on 20.01.2015 after the warranty period . Now the company can only service the mobile and cannot replace it as per rules. The mobile set needs higher level repair for which the Complainant was not ready. The Complainant is not entitled for replacement or any other remedy. There was no deficiency of service from the part of 2^nd Opposite party.

4. On perusal of complaint, version and documents the Forum raised the following points for consideration

1. Whether there is deficiency of service or unfair trade practice from the part of

Opposite parties?

2. Relief and cost.

5. Point No.1:- The Complainant filed proof affidavit and is examined as PW1 and documents are marked as Exts.A1 and A2. The mobile set is marked as MO1. The 1^st Opposite party filed proof affidavit and 1^st Opposite party is examined as OPW1 and 2^nd Opposite Party is examined as OPW2 and Ext.B1(1 & 2) is marked. Ext.A1 is the invoice and Ext.A2 is the service job sheet. As per Ext.A2, the mobile set is seen entrusted for repair on 20.01.2015. It is after warranty time. The main contention of 2^nd Opposite party is that the mobile set is entrusted to 2^nd Opposite Party for repair after the expiry of warranty period. Ext.B1(1) and Ext.A2 documents prove that the MO1 mobile set is entrusted to 2^nd Opposite party on 20.01.2015. But the Complainant's case is that on 22.01.2014 the Complainant entrusted the mobile set to 1^st Opposite party for repair. The 1^st Opposite Party deposed before the Forum in cross examination that the 1^st Opposite party do not know the date of entrustment of mobile with 1^st Opposite party. The 1^st Opposite Party adviced the Complainant to approach the service center on the 1^st occasion of entrustment and the 1^st Opposite party made initial examination and found that the problem is net work complaint. The 1^st Opposite party had no case of entrustment of mobile after expiry of warranty. But 1^st Opposite party stated in the version that the 1^st Opposite party had been informed by the 2^nd Opposite party that the defect of the hand set can be cured by replacing the board as offered by the 2^nd Opposite party on free of cost. More over 1^st Opposite party stated that the 2^nd Opposite party had liability to give service warranty free service to the mobile. But 2^nd Opposite Party stated that the 2^nd Opposite party cannot give free service to the mobile since warranty is expired and if the Complainant is ready for paid service, 2^nd Opposite party is ready to give service. So the case of 1^st Opposite Party and 2^nd Opposite Party are different. So by analysing the entire evidences, the Forum found that the Complainant had continuous cause of action to file this complaint since he entrusted the mobile for service to the 1^st Opposite Party before the expiry of warranty. The 1^st Opposite party not denied it also. As per Ext.B1(1), the complainant entrusted the mobile after expiry of warranty. But since the Complainant gets continuous cause of action, the complaint is maintainable. The Forum found that the denial of free service or denial of replacement of mobile to the complainant by 2^nd Opposite party is deficiency of service from the part of Opposite parties. Point No.1 is found accordingly.

6. Point No.2:- Since point No.1 is found in favour of Complainant, the Complainant is entitled to get cost and compensation.

In the result, the complaint is partly allowed and the Opposite parties are directed to pay Rs.19,455/- (Rupees Nineteen thousand Four hundred and Fifty Five) only being the value of MO1 mobile set to the Complainant. The Opposite parties are also directed to pay Rs.1,000/- (Rupees One thousand) only as cost and Rs.1,000/- (Rupees One thousand) only as compensation to the Complainant. The Complainant is directed to hand over the MO1 mobile set to the Opposite parties on receipt of the above amounts. The Opposite parties are jointly and severally liable to pay the above amounts within one month from the date of receipt of this order failing which the Complainant is entitled to get 12% interest for the whole sum.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 1^st day of October 2015.

Date of Filing:22.01.2015.

PRESIDENT :Sd/-

MEMBER :Sd/-

MEMBER :Sd/-

/True Copy/

Sd/-

PRESIDENT, CDRF, WAYANAD.

APPENDIX.

Witness for the complainant:

PW1. T.P. Ealias. Advocate.

Witness for the Opposite Parties:

OPW1. Jolly 3G Mobile World Manager,

Sulthan Bathery Branch.

OPW2. Rahul Technician, Nokia Bazar, Kalpetta.

Exhibits for the Complainant:

A1. Retail Invoice. dt:19.01.2014.

A2. Copy of Service Job Sheet.

MO1. Mobile set.

Exhibits for the Opposite Parties.

B1(1) Copy of Service Job Sheet. dt:16.08.2010.

B1(2) Copy of Warranty check result.