BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.50/2011

Dated this the 27^th day of February 2015.

S.Vinoth,

No.72, Vella Pillaiyar Koil Street,

Kottucherry, Karaikal-609 602.

Present address:

18, P.S.R. nagar,

Patchoor Village,

Karaikal-609 602.                                                               ….       Complainant

Vs.

1. M/s.L.G. Electronics India Pvt. Ltd.,

    Plot No.51, Udyog Vihar

    Surajpur-Kasna road,

    Greater Noida-201306 (UP)

    (e-Mail:lgservice@lgindia.com)

2. M/s.Univercell Telecommunications India

    Pvt. Ltd., Subramaniya Bharathiyar Road,

    Near Kathapillai Road junction,

    Karaikal Town -609 602.

    (e-Mail:md@univercell.in)

3. M/s.Zm Electronics

    1006/1007, South East Rampart

    Opp. To Municipal Higher Secondary School

    Tanjore-613 001

    (e-Mail:zm.tan@lgmobiles.com           

4. M/s.Univercell Telecommunications India

    Pvt. Ltd., No.281, T.T.K. Road, Alwarpet,

    (Opp. To Moor), Chennai-600 018.                              ….     Opposite Parties

BEFORE:

            THIRU.A.ASOKAN, B.A., B.L.,

            PRESIDENT 

Tmt. PVR. DHANALAKSHMI, B.A.,B.L.,

           MEMBER

FOR THE COMPLAINANT           :  Thiru.A.Thirumalvalavan, Advocate.

FOR THE OPPOSITE PARTIES : OP.1 – Thiru.M.Lakshmi Narasimhan, Advocate

      OP.2 to OP.4- Exparte

O R  D  E  R

(By Thiru.A.ASOKAN, President)

This is a complaint filed by the complainant under section 12 of the Consumer Protection Act, 1986 praying :

1. To rectify the defects in the LG Handset GT 505 as described in para 1 of the complaint immediately.
2. In the event of its non-rectification, to replace the above LG Handset GT 505 with a similar LG Handset 505 free of cost to the complainant.
3. Or to refund the entire cost of Rs.11,330/- paid to the handset as detailed in para 1 of the complaint with 12% interest till the date of payment.
4. To pay a compensation of Rs.50,000/- for their negligence towards mental agony and reputation suffered by the complainant.
5. To order payment of costs, allied expenses and attorney's fees and
6. To pass order any other equitable and justifiable sum as this Forum may deem fit to grant.

2.  The case of the complainant is as follows:

            The complainant herein had purchased one LG-GT 505 handset bearing IMEI No.354695-03-562404-7 from the second opposite party for an amount of Rs.11330/- under invoice No.UPY:062189 dated 20.05.2010.  Within two months from the date of purchase the software of the handset malfunctioned.   As per the directions of the second opposite party, the complainant approached the third opposite party at Thanjavur and parted the handset for rectification.  After two days, the handset was returned to the complainant after rectification.  But, from the very next day the handset has developed again the same defect in addition to (1)Camera key operation was defective, (2)SIM operation was defective, (3)Mike gone dead, (4) Operation of the handset went slow and (5)failure in the software of the handset.  The complainant approached the second third opposite party for more than three times to rectify the defects. But the handset problems were not solved.  The second opposite party in April 2011 informed the complainant that the handset is manifested with software problem but they have not come forward either to rectify or to replace it. The second opposite party further informed that sufficient service facilities are not available locally to this imported item, and therefore they could do nothing for its rectification.  The complainant issued legal notice to the opposite parties. Though the said notice was received by the opposite parties, except third opposite party, no others were chosen to reply for the same.  In the reply given by the third opposite party, it was falsely stated that there was water mark inside the mobile phone.  The purpose for which the handset purchased was not fulfilled.   The action of the opposite parties may easily be considered as unfair trade practice and deficiency in their service under the Consumer Protection Act, 1986.  Hence this complaint.

3.         The reply version of the first opposite party is as follows:

            The first opposite party denies all the averments narrated in the complaint except those that are specifically admitted in the reply version.  It is admitted by the second opposite party that the complainant had purchased the mobile on 20.05.2010 and used the same till May 2011. Then the referred handset was brought to the third opposite party on complaint of error in function in camera. The said problem was instantly rectified and returned to the complainant.   The complainant had again approached the third opposite party and alleged non function of the set. The employees of third opposite party at once checked the said mobile in the presence of the complainant and notice that there is a liquid spell/water marks inside the mobile.  The third opposite party had rightly stated that such wrong use of mobile excludes product from warranty and that the mobile can be rectified only on payment of charges.  Then the complainant had shouted in challenge and left. On 22.05.2011, the complainant had sent legal notice and the said notice duly replied by the third opposite party on 17.06.2011.  The first opposite party had not acted in any negligence or deficiency or service in any manner. The first opposite party had done all the duties on manufacturing, sales and service of specified mobile. The allegation and claims as against the first opposite party are defamatory and damaging on facts and as per law.

4.         On the side of the complainant, he chosen to examine himself as CW.1 and marked Exs.C1 to C14.  No oral or documentary evidence was adduced on the side of the opposite parties.

5.         Points for determination are:

1. Whether the complainant is the consumer?
2. Whether any deficiency of service attributed by the opposite parties and any defect in the mobile phone sold by the third opposite party?
3. To what relief the complainant is entitled for?

6.         Point No.1:

            The complainant had purchased one 2G-GT505 Handset from the second opposite party on 20.05.2010 for the valid consideration of Rs.11,330/- vide Ex.C1.  Being the third opposite party is the service provider and the Opposite Parties 1 and 4 are the manufacturer, the complainant is the consumer for the opposite parties.

7.         Point No.2:

            We have perused the pleadings, Exs.C1 to C14, evidence and arguments adduced by the complainant and the reply version filed by the first opposite party. The allegation of the complainant is that within two months of purchase, the camera key of the handset was not functioned properly and the complainant had approached the second opposite party for rectification.  The second opposite party directed the complainant to approach the third opposite party to rectify the following defects:

1. Camera key operation was defective
2. SIM operation was defective
3. Mike gone dead
4. Operation of the handset went slow
5. Failure in the software of the handset.

8.         The complainant approached the third opposite party for more than three times to rectify the software problem.  The complainant approached the second opposite party with a request either to rectify the handset or to replace the same.  The complainant sent notice dated 03.05.2011 to the second opposite party and fourth opposite party vide Ex.C5. The Exs.C6 and C7 are the acknowledgement card for the same.  Again the complainant sent another notice dated 27.05.2011 to all the opposite parties vide Ex.C8.  Exs.C9 The Exs.C10 and C12 are the acknowledgement due card for the same.  The third opposite party has sent reply through Ex.C11 dated 17.06.2011 to the complainant stating that when the handset was opened in the presence of the complainant, it contains some "water marks"  caused during the handling of the handset  by the complainant.  The first opposite party stated in their reply version that such wrong use the mobile phone excludes product from warranty and that this mobile can be rectified only on payment of charges and relied upon Ex.C3 and C4.  The Ex.C3 clauses 2.2 contains

"WHAT THIS WARRANTY DOES NOT COVER"

1. Defects or Damages resulting from use of the product in other than its normal and customary manner
2. Defects or damages from abnormal use, abnormal condition, improper storage, exposure to moisture or dampness, unauthorised modifications, unauthorized connections, unauthorised repair, neglect, abuse, accident, alteration, improper installation or other acts which are not the fault of LG, including damage caused by shipping, blown, fuses, spills of food or liquid.

9.         During the cross examination made by the first opposite party's counsel, the complainant admitted that "It is true that the third opposite party also stated to me that handset is spoiled because of wetting of found set and that there is a water mark in the battery of handset.  It is true that reply notice sent also stated so.  It have read and understood the version in this case.  It is true that the version is also mentioned that water mark inside mobile is the reason for its non-functioning".

10.       From the above facts, it is clear that the complainant has not proved that the handset is having manufacturing defect.  The condition clause in the warranty also does not cover the spills of food or liquid.  Therefore the complainant is not entitled for his claim.

11.       The first opposite party has submitted in their reply version "without prejudice to any of the said factual and legal defenses in this case had offered for amicable settlement of case for sole reason of customer care and goodwill as in policies and practices in company had offered to the complainant for return of payment" i.e. the cost of the handset.  The complainant admitted the same during his cross examination and further admitted the non-coverage of warranty for the spills of liquid in the said set. To meet the ends of justice, this Forum is inclined to direct the opposite parties to refund the cost of the handset to the complainant as assured by the first opposite party.

12.       Point No.3:

            In view of the decision taken in point no.2, the complainant is not entitled for any relief as prayed.  The opposite parties are directed to refund the cost of the handset of Rs.11,330/- to the complainant as assured by the first opposite party and the complainant is hereby directed to return the handset on getting refund.   This complaint is party allowed and partly dismissed. No cost.

Dated this the 27^th day of February 2015.

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER

COMPLAINANT S WITNESS:  

CW.1             23.05.2014                S. Vinoth

OPPOSITE PARTIES WITNESS:  Nil

COMPLAINANTS EXHIBITS:

OPPOSITE PARTY S EXHIBITS:    Nil

1. ASOKAN)

PRESIDENT

(PVR. DHANALAKSHMI)

MEMBER