BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 30/08/2013

Date of Order : 30/08/2014

Present :-

Shri. A. Rajesh, President.

Shri. Sheen Jose, Member.

Smt. V.K. Beena Kumari, Member.

C.C. No. 608/2013

Between

And

O R D E R

A. Rajesh, President.

1. Shortly stated, the case of the complainant is as follows :-

The complainant purchased a mobile handset from the 3^rd opposite party on 06-04-2013 for Rs. 10,000/-. The handset started showing various complaints including hanging network, battery down etc. The matter was brought to the notice of the 3^rd opposite party and as per their advice, the hand set was entrusted with the 2^nd opposite party, the authorized service centre of the 1^st opposite party. Though it was repaired by them several times, they failed to rectify the defects. The inability of the service centre to rectify the defects evenafter repeated repairing would substantiate that the handset suffers from manufacturing defect. Due to the recurring defects of the handset supplied by the opposite parties, the complainant was compelled to purchase another set. The complainant is entitled for refund of the price of the handset Rs. 10,000/- along with interest at the rate of 12% p.a. from the date of purchase till realisation. He is also entitled for compensation of Rs. 3,000/- for the mental agony and hardships suffered by the complainant due to the recurring defects of the handset supplied to him together with costs of the proceedings.

2. The version of the 1^st opposite party is as follows :-

The real issue regarding the mobile handset was that of 'touch and network complaint' which was brought to the 2^nd opposite party on 16-04-2013. The software was updated by the 2^nd opposite party on that date itself. The second problem was regarding 'mobile hanging'. On 06-06-2013, the 2^nd opposite party corrected it by replacing a motor and returned it on 12-06-2013. As per warranty condition, the opposite party could only offer repairs to the customer. The mobile handset is free from any manufacturing defect as alleged by the complainant. There is no deficiency in service on the part of the 1^st opposite party and the complaint is liable to be dismissed.

3. Despite receipt of notice from this Forum, the 2^nd and 3^rd opposite parties opted to remain absent for reasons not stated or explained. No oral evidence was adduced by the parties. Exts. A1 to A3 and B1 were marked on the side of the complainant and the 1^st opposite party respectively. Heard the counsel for the parties.

4. The points that arose for consideration are as follows :-

1. Whether the complainant is entitled to get refund of the price of the mobile handset with interest?

2. Whether the opposite parties are liable to pay compensation and costs of the proceedings to the complainant?

5. Point No. i. :- Ext. A1 retail invoice goes to show that on 06-04-2013, the complainant purchased a mobile handset from the 3^rd opposite party at a price of Rs. 10,000/-, which was manufactured by the 1^st opposite party. According to the complainant, the opposite parties failed to rectify the defects despite repeated repairs, which would show that the same suffers from manufacturing defect. Per contra, the 1^st opposite party contended that the 2^nd opposite party has provided service to the complainant on 16-04-2013 and on 06-06-2013, when the complainant approached them.

6. Admittedly, the complainant approached the 2^nd opposite party, the authorised service centre of the 1^st opposite party on 06-04-2013 with the problem regarding 'network fault, battery sudden down' evident from Ext. A3 customer information slip. Again on 06-06-2013, the complainant approached the 2^nd opposite party with the complaint 'hanging' evidenced by Ext. A2 service request. Exts. A2 and A3 go to show that the complainant has approached the 2^nd opposite party during the warranty period. The 1^st opposite party vehemently contended that as per Ext. B1 warranty conditions their liability is only to rectify the defects of the handset. It is to be noted that the terms and conditions stated in Ext. B1 are in fine prints which cannot be read with naked eyes and the terms and conditions stated therein are only to be discarded. According to the Hon'ble Supreme Court, if the terms and conditions are in fine prints the terms and conditions are not binding on the parties. (Modern Insulation Vs. Oriental Insurance Company Ltd. 2000 CTJ 169 (SC) (CP).

7. In view of the above, we are only to hold that the recurring defects of the mobile handset was due to its manufacturing defect and the complainant is entitled to get refund of its price with interest from the 1^st and 3^rd opposite parties, since by the time, he had to purchase another mobile handset.

8. Point No. ii. :- The primary grievance of the complainant having been met squarely and sufficiently, we refrain from awarding compensation. However, the complainant was compelled to approach this Forum due to the deficiency in service on the part of the opposite parties. Costs of the proceedings is called for. We fix it at Rs. 1,000/-.

9. In the result, we allow the complaint and direct as follows :-

1. The 1^st and 3^rd opposite parties shall jointly and severally refund the price of the defective mobile handset with 12% interest p.a. from the date of complaint till realisation. The complainant is directed to return the defective handset to the 1^st and 3^rd opposite parties simultaneously.

2. The 1^st and 3^rd opposite parties shall jointly and severally also pay Rs. 1,000/- (Rupees One thousand only) to the complainant towards costs of the proceedings.

The order shall be complied with, within a period of thirty days from the date of receipt of a copy of this order.

Pronounced in the open Forum on this the 30^th day of August 2014.

Forwarded/By Order, Sd/- A. Rajesh, President.

Sd/- Sheen Jose, Member.

Sd/- V.K. Beena Kumari, Member.

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :-

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