For the O.P.No.2 Ex-parte
For the O.P.No.3 Ex-parte
DATE OF FILING: 24.03.2015
DATE OF DISPOSAL: 04.12.2017
Dr. Alaka Mishra, Member (W):
The complainant has filed this consumer dispute under Section 12 of the Consumer Protection Act 1986, alleging defect in goods and deficiency in service against the Opposite Parties (in short the O.Ps.) and for redressal of his grievance before this Forum.
2. Briefly stated the case of the complainant is that he purchased a Nokia Mobile handset bearing No.NOKIA X980-BLK, IMEI No.352361065037954 of O.P.No.1 from O.P.No.2 in the month of April 2014 on payment of Rs.7,759/-. Within a week of purchase of the mobile handset, the complainant faced problem of inconvenience to operate, functions appeared abnormal and was not technically fit. As such, the complainant brought it to the authorized service centre of Nokia Service Care at Bhubaneswar who after check up returned it back to the consumer stating it to be corrected. The complainant faced the same problem again and again and as such he approached the O.P.No.3 on 31.07.2014. The O.P.No.3 vide its job sheet bearing No.628504886/140731/019 dated 31.07.2014 was entrusted with the job to rectify the problems faced by the complainant. The O.P.No.3 inspected the handset and found the major symptoms like non-functioning of 5103 camera and remarked that “when open camera it display gallery has stopped”. The O.P.No.3 swapped the mother board and gave a new IMEI No.352361062581871and after correction the O.P.No.3 returned the set to the complainant after two months. The complainant after receipt of repaired set from O.P.No.3 faced the same problem again as before. Disgustingly and hard pressed for time, the complainant again took the set to the O.P.No.3 and complained about his problems. Finding it to be true, the O.P.No.3 again took the handset for repairing on 21.11.2014 vide its job sheet No.628504886/141121/002. The O.P.No.3 after verification found the major symptoms to be 4410 Audio Microphone does not work and 4100 startup completely dead and also commented that, “handset hangs no outgoing audio”. The O.P.No.3 again swapped the mother board with IMEI 352361065473191 and returned the set to the complainant in the month of February, 2015. The problem in the set continued in a regular interval because the mobile set suffers from manufacturing defect. The complainant requested O.P.No.3 to change the set and provide him with a new one but the O.P.No.3 refused on the ground that he was not authorized to replace and O.P.No.1 and 2 are only authorized to order for a replacement. The complainant approached O.P.No.1 & 2 on several times to replace the mobile handset but in vain. It is also mentioned in the complaint that he is a practicing advocate and an active leader of INC and has been appointed as the President, Nagar Congress, Berhampur. He is a busy man and travels a lot in his works relating to legal profession as well as political and social engagement. He depends a lot on his mobile handset to contact various persons in various fields within India as well as abroad. Due to the defective set he has become totally crippled. Since the day of purchase, the handset has remained with O.P.No.3 for repairing serving purpose. By the act of negligence of the O.Ps the complainant has not only faced physical inconvenience by running to the service care centre of O.P.No.3, but has also suffered mental agony which cannot be compensated otherwise. When the complainant failed to get his mobile set rectified, the complainant has filed this consumer complaint alleging manufacturing defect in mobile and deficiency in service on the part of the O.P and prayed to direct the O.P.s to pay compensation of Rs.1,00,000/- towards physical and mental agony and litigation cost of Rs.2000/- in the best interest of justice.
3. Upon notice the O.P.No.1 despite due notice served did not appear as a result declared ex-parte on 19.07.2016, the O.P.No.2 was declared ex-parte on 19.07.2016 and the O.P.No.3 was set ex-parte on 07.06.2016 respectively due non filing of their written version. However, the O.P.No.1 on 23.8.2016 appeared through M/s Qui Prior Law Associate and filed its written version on 05.10.2016 but the Forum did not accept the same due to non-filing of set aside petition by the learned counsel for the O.P.No.1 hence the written version filed by O.P. No.1 was not entertained. The consumer dispute disposed of on merit.
4. On the date of final disposal of the consumer dispute, we have gone through the case record and verified the complaint and other documents placed on it. On perusal of the case record, it reveals that in this case the O.P.No.1 appeared and filed his written statement on 05.10.2016 after he was declared ex-parte on 19.07.2016. Since the O.P.No.1 was set ex-parte and filed his written statement without accompanying a set-aside petition, the same was not entertained by this Forum. Similarly, the complainant has also remained consecutively absent from 02.01.2017 till 09.11.2017 and has also not filed his written argument. Since in the present consumer complaint all the O.Ps are declared ex-parte and the complainant without filing his written argument remaining absent consecutively since long, the Forum decided to dispose off the case on merit under Section 13 (2) ( c) of the Consumer Protection Act, 1986.
5. On merit and on perusal of the case record, it reveals that there is no dispute or doubt that the complainant purchased a mobile set bearing model number NOKIA X980-BLK, IMEI No.352361065037954 respectively on payment of Rs.7,759/- towards cost of said mobile set on 29.04.2014 from O.P.No.2. The said mobile set found defective after use of three months from the date of purchase and it was produced before O.P.No.3 for repairing on 31.07.2014. The service centre after verification of the defect mobile set recorded the problem as ‘when open camera it display gallery has stopped’ as is evident from the job card bearing No.628504886/140731/019 dated 31/07/2014. Hence, it is an admitted fact that the first defect of said mobile set was dictated by the service centre within warranty period on 31.07.2014 when it was first produced before O.P.No.3 for repairing. After repairing of the mobile set, it was handed over to the complainant but after use of few days again on 21.11.2014 the mobile set was produced before the service centre for repairing due to hang, no outgoing calls, defective audio system and other problems as is evident from the service job sheet bearing No.628504886/141121/002 dated 21.11.2014. It is annoyed to note that despite several attempts made by the O.P. service centre, the defective mobile set could not be rectified. Further, it is also a fact that despite duly notice served by registered post and even through email on 03.02.2016, the O.Ps failed to appear and did not prefer to contest the case. As discussed above, all the O.Ps have been declared ex-parte and neither filed written version to controvert the allegations nor contested the case to prove the allegations wrong. In the aforesaid fact and circumstances of the case in our view we would like to say that in absence of any written version on part of the O.Ps to controvert complainant’s allegations, same is to be held correct. It is an admitted fact that the mobile was received by the authorized service centre for repairing twice within the warranty period and on repeated efforts failed to rectify the defect. In the foregoing fact and circumstances of the case, we are constrained to hold that the said mobile set was suffering from manufacturing defective. When a mobile set is found defective during the warranty period and even after repeated repairing done by the authorized service centre it was not rectified properly, it is to be held as inherent manufacturing defect of the alleged mobile set. In this context we would like to view that since the product is made by Nokia India Pvt. Ltd which was acquired by present O.P.No.1, the O.P. No.1 is liable to refund the cost of mobile set i.e. Rs.7,759/- to the complainant since the said mobile set was found defective during its warranty period. Similarly, we are also convinced that the O.P.No.1 is also liable to pay Rs.2,000/- towards compensation and Rs.1,000/- as cost of litigation since the complaint was deprived of utility of the set and was forced to file this consumer dispute to assert his right. In the light of the above discussions and taking into account to the facts and circumstances of the case, we allowed the case of the complainant against O.P.No.1 and dismissed against as O.P No 2 and 3 since there is no proved deficiency in service against both of them in this consumer dispute.
6. In the result, we allowed the case of the complainant against O.P.No.1 and dismissed against O.P.No.2&3. The O.P. No.1 is liable to refund the cost of defective mobile set i.e. Rs.7,759/- to the complainant together with compensation of Rs.2,000/- and Rs.1,000/- as cost of litigation. The complainant is also directed to return the defective mobile set to the O.P. No 1 on receipt of the amount refunded. The aforesaid orders shall be complied by the O.P.No.1 within two months from the date of receipt of this order failing which the complainant is at liberty to recover the same under Section 25/27 of the Consumer Protection Act, 1986. The case of the complainant is disposed of accordingly.
7. The order is pronounced on this day of 4th December 2017 under the signature and seal of this Forum. The office is directed to supply copy of this order to the parties free of cost and a copy of same be sent to the server of
