CONSUMER DISPUTES REDRESSAL FORUM PALAKKAD
Dated this the 30th day of May, 2017
PRESENT : SMT. SHINY.P.R, PRESIDENT Date of filing:29/12/2016
: SMT.SUMA K.P, MEMBER
: SRI.V.P.ANANTHA NARAYANAN, MEMBER
CC/214/2016
Muhammed Ali.P.K, : Complainant
S/o.P.C.Ibrahim, Pee Cees,
Behind E.S.I.Hospital,
Jainamedu, Vadakkanthara.P.O,
Palakkad, Kerala.
(By Adv.B.Ravikumar) Vs
- M/s.Fone-4 Communications(India)Ltd.
Shop No.10/44, Al-ain
Building College Road, Tharekkad,
Palakkad-678 001
Rep.by its Managing Director, : Opposite parties
Palakkad, Kerala.
2. M/s.Syska Gadget Secure,
4th Floor, Sapphire Plaza,
Plot No.80, S.No.232,
New Air Port Road,Near Symbiosis College,
Sakore Nagar, Pune,
Maharashtra-411 014.
Rep.by its Managing Director
O R D E R
By Sri.V.P.Anantha Narayanan, Member
Brief facts of the complaint.
On 22/11/2015, the complainant purchased a white coloured dual SIM mobile phone known in the market by the brand name-“VIVO Y15 S”, from the 1st opposite party paying Rs, 8,299.00/- towards its price. The phone’s IMEI numbers were:-
867770027709054 and 867770027709047.
The 1st opposite party cajoled the complainant to buy a blanket insurance cover for the phone, namely “Syska Gadget Secure” which was said (and the complainant was made to believe), to cover all types of accidental damages including damages caused by water and other fluids. Enticed and lured by the hypes, the complainant bought the so called “Syska Gadget Secure” along with the phone, paying Rs.599/-additionally. Up on payment of the said amount, 1st opposite party issued to the complainant card bearing no.10598870 and a serial number SG1-599-QH-DMG-56101242 was indicated on it.
After 4 months of its use, in April 2016, the phone accidentally came into contact with oil and ceased functioning. The phone was immediately taken to the shop of the 1st opposite party for its repair/replacement. The phone was returned after a few days, stating that it was repaired and fully operational. After sometime subsequent to its return, when the phone was actually used; to his utter dismay and shock, the complainant realized that the speaker of the phone was not working properly. The phone was entrusted to the 1st opposite party once again, urging them to rectify and return it without delay, as it was stated to be a minor defect. A 32 GB SD card containing very valuable data was also inside the phone while entrusting the phone a second time to the 1st opposite party for its repairs. The 1st opposite party promised to return the phone within the next 2 days.
Two days passed by, but the phone was not ready. Many more days passed by with no result. The complainant closely followed up the status of the phone over phone and through personal visits to the shop of the 1st opposite party. All his efforts were infructuous. Each time, the 1st opposite party, through different excuses was buying more rime. The excuses were of the nature “indent given for spares”, “waiting for spares”, “unavailability of spares” etc.
In the meantime, because of the inordinate delay, the unabated indefiniteness and the compelling business exigencies, the complainant, who is a business man, had to buy another phone resulting in heavy cash outflows and consequent opportunity costs by way of interest loss on the money expended.
Of late, all of a sudden, in a complete volte-face of their erstwhile stand of repair/replacement of the phone, the 1st opposite party is saying that the phone is not traceable and if the complainant paid Rs.2,000/-a new phone in lieu of the old one, would be given; or else the claim of the complainant would be lost. The complainant did not budge to that preposterous demand.
The complainant purchased the phone along with a blanket damage insurance cover issued by and on behalf of the 2nd opposite party, and as such, is not obliged to pay Rs.2,000/-asked by either the 1st opposite party or the 2nd opposite party. Such preposterous demand is unwarranted, uncalled for, distressing and agonizing.
The failure to return the faulty phone after its repairs or replace the same is a breach of conditions and warranties on its sale and is also a breach of the insurance contract entered into between the complainant and 2nd opposite party. Further, the lapses, willful default, the deplorable failure to replace/return the phone after its repairs, deliberate violation of agreements with the complainants and the utter disregard to redress the latter’s grievances, even after repeated appeals amount to deficiency in service by the opposite parties. As a result of the deficient service/disservice of opposite parties, which are being continued unabated since April 2016, the complainant is put to heavy financial loss, miseries and mental sufferings.
As on 15/12/2016, the negative fallout of the breaches and willful default resulting in deficiency in service, occasioned by both the opposite parties has impacted the complainant as under:
Rs.
- Cost of alternate mobile phone 8,299.00
- Interest loss on above @12% p.a for 9 months 829.00
- Cost of VIVO Y 15 S 8,299.00
- Cost of Insurance Cover 599.00
- Interest @12% p.a.on (3)&(4) for 9 months 829.00
- Nominal damage for mental distress and agony 5,000.00
Total - 24,684.00
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On 08/08/2016, the complainant has caused to serve registered notice with A/D dated 18/08/2016 on the 1st as well as 2nd opposite parties asking them to replace/return the phone after repairs, within the next 10 days of receipt of the said notice. The Registered Notice was duly acknowledged by the 1st opposite party on 19/08/2016. Though the notice was issued to the 2nd opposite party, it was accepted by them, but the A/D Card was not received till date. The 10 days’ waiting period is already over and no positive action is forthcoming from either of the opposite parties.
In the backdrop of what is stated above, the complainant humbly prays that this Hon’ble Forum may be pleased to . Order the opposite parties to pay to the complainant costs and damages as indicated below:-
Rs
- Cost of alternate mobile phone 8,299.00
- Interest loss on above @ 12% p.a for 9 months 829.00
- Nominal damage for mental distress and agony 5,000.00
Total - 14,128.00
=======
It is submitted that, there have been gross negligence, lack of proper care, concern and diligence and above all, acute deficiency in the service rendered by the opposite parties, resulting in heavy financial loss and inexplicable mental sufferings with devastating effect on complainant’s peace of mind.
The cause of action for this complaint arose in April 2016, when the 1st opposite party failed to repair/replace the phone entrusted with them properly on that date and since that date, continuously till date, during which period, once again the phone was entrusted with them to rectify the fault, but remained unreturned/unreplaced and on 18/08/2016, when notices were issued to the opposite parties and on 19/08/2016 when the notice was received by the 1st opposite party. The same status prevails and cause of action subsists and continues till date unfettered.
As the cause of action for this complaint arose at Palakkad where the opposite party No.1 sold the phone to the complainant and as the amount hereby claimed as damages comes to Rs.14,128.00/- (Rupees fourteen thousand one hundred and twenty eight only), the complaint is within the jurisdiction of this Hon’ble Forum.
The complainant prays to this Hon’ble Forum to accept the documents listed in the schedule I attached hereto; the complainant further seeks the leave of this Hon’ble Forum to produce additional documents and additional witnesses later, if found necessary or inevitable, for the proper adjudication of this matter.
Hence it is most humbly prayed that this Hon’ble Forum may be pleased to:
- Order the opposite parties to pay the complainant costs and damages aggregating to Rs.14,128/-as shown hereunder:-
Rs
- Cost of alternate mobile phone 8,299.00
- Interest loss on above @ 12% p.a. for 6.5 months 829.00
- Nominal damage for mental distress and agony 5,000.00
Total - 14,128.00
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- Allow the complainant to recover the costs of the complaint from the opposite parties and;
( c) Grant such other further reliefs as this Hon’ble Forum may deem fit, proper and
reasonable, based on the nature, circumstances and merits of the case.
The complaint was admitted and notices were issued to opposite parties 1&2. Opposite parties 1&2 being absent were set ex-parte ; they did not file their version.
Notices to opposite parties 1&2 were served. The name of 1st opposite party was called absent and they were set ex-parte. Notice to 2nd opposite party was deemed to be served and they were also set ex-parte. Complainant filed chief affidavit and original documents along with additional proof affidavit. Ext.A1 to A5 were filed and marked from the side of the complainant. No documents were filed and marked from the side of 1&2 opposite parties.
The following issues are considered in this case.
- Whether there is any negligence/ unfair trade practice on the part of 1&2 opposite parties?
- If so what is the relief?
Issues 1&2
On 22/11/2015 the complainant purchased a dual SIM mobile paying Rs.8,299/-towards its price vide Ext.A4. The 1st opposite party compelled the complainant to buy a blanket insurance cover for the phone, namely “Syska Gadget Secure”, whose particulars are shown in Ext.A1. The complainant bought the “Syska Gadget Secure” along with the phone paying Rs.599/-additionally vide Ext.A5. On payment of the amount mentioned above 1st opposite party issued to the complainant a card bearing No:10598870 and serial No:SG1-599-QH-DMG-561012242 vide Ext.A2. ‘The important information and warranty card’ was issued to the complainant marked as per Ext.A3. After four months of its use that is in April 2016, the mobile phone came into contact with oil and ceased working and the same was immediately taken to the 1st opposite party’s shop for its repair/replacement. The phone was returned after a few days stating that it was repaired and fully working. When the phone was used later, the complainant knew that the speaker of the phone was not properly working. Therefore, the phone was again entrusted to the 1st opposite party, telling them to rectify and return the same without delay, the defect being stated to be minor. According to the complainant, A 32 GB SD card containing very valuable data was also inside the phone while entrusting the phone for repairs to the 1st opposite party who promised to the complainant to return the phone within 2 days. The phone was not ready even after 2 days and many more days. The status of the phone was closely observed by the complainant through phone and personal visits to the 1st opposite party’s shop; but all his efforts proved invain. 1st opposite party gave many excuses to buy more time. Because of inordinate delay and business exigencies, the complainant business man had to buy another phone resulting in heavy cash outflow and interest loss. Then the 1st opposite party told the complainant that the phone was not traceable and if the complainant paid Rs.2,000/-, a new phone instead of the old one would be given to the complainant; or else complainant’s claim would be lost. But the complainant did not agree to the demand of the 1st opposite party. According to the complainant, the demand of the 1st opposite party was distressing and agonizing, in addition to it being unwarranted and uncalled for. The complainant appeals that the failure on the part of 1st opposite party to return or replace the phone after its repairs even after his repeated appeals to them shows deficiency in service on the part of the opposite parties, as a result of which heavy financial loss and mental sufferings were caused to the complainant. The complainant claims Rs.24,684/-(Rupees twenty four thousand six hundred and eighty four only) from the opposite parties for the deficiency in service that occurred to him from the side of opposite parties. On 08/08/2016 the complainant caused to serve a registered notice with A/D dated 18/8/2016 on opposite parties 1&2 to replace/ return the phone after repairs within 10 days of the receipt of the notice and the notice was acknowledged by the 1st opposite party on 19/08/2016. The notice issued to the 2nd opposite party was accepted by them, but acknowledgement due card was not received. Even after 10 days’ waiting period no positive action was forthcoming from the 1&2 opposite parties.
Hence, the complainant humbly prays to the Hon’ble Forum to order the opposite parties 1&2 to pay to the complainant Rs.8,299/- towards cost of alternate mobile phone, Rs.829/-by way of interest loss on the above amount at 12% p.a for 9 months and Rs.5,000/-as nominal damage for mental distress and agony, totalling Rs.14,128/-(Rupees Fourteen thousand one hundred and twenty eight only) and to allow his complaint.
From the above, we observe that after 4 months of the purchase of the mobile phone in April 2016, the phone stopped working. In spite of several contacts with opposite parties by the complainant, the first opposite party did not return the mobile phone handed to them for repair during its guarantee period. We also observe that 1st opposite party is seen to have told the complainant that since the mobile phone handed to them for repair is not traceable and if the complainant pays Rs.2,000/-(Rupees two thousand only) a new mobile phone instead of the old one would be given to the complainant otherwise the claim of the complainant would be lost. From this we observe that opposite parties are seen to have committed unfair trade practice. Further even after many times of contacting the 1st opposite party by the complainant, the mobile phone was not seen repaired and returned to the complainant by the 1st opposite party which shows deficiency of service also on the part of opposite parties. It is also viewed that the deficiency of service and unfair trade practice have occurred during the guarantee period and in spite of insurance coverage for the phone in question .
In the light of the above the complaint is allowed.
We order the opposite parties 1&2 to be jointly and severally liable to pay to the complainant Rs.8,299/-(Rupees eight thousand two hundred and ninety nine only) being the invoice price of the mobile phone in question plus a sum of Rs.5,000 (Rupees five thousand only) being compensation for mental agony suffered by the complainant plus Rs.2,000/-(Rupees two thousand only) towards litigation expenses met by the complainant.
This order shall be executed within one month from the date of receipt of this order; otherwise 9% interest p.a on the total amount due should also be paid to the complainant from the date of the order till realization.
Pronounced in the open court on this the 30th day of May 2017.
Sd/-
Shiny. P.R
President
Sd/-
Suma. K.P Member
Sd/-
V.P.Anantha Narayanan Member Appendix
Exhibits marked on the side of complainant
Ext.A1- blanket insurance cover for the phone, namely “Syska Gadget Secure”,
Ext.A2 –card bearing No:10598870 and serial No:SG1-599-QH-DMG-561012242
issued to the complainant by 1st opposite party
Ext.A3 -‘The important information and warranty card’ issued to the complainant
Ext.A4- Tax invoice bill dated 22/11/2015 -“VIVO Y15 S”, for Rs.8299/-
Ext.A5 – Tax invoice bill dated 22/11/2015 of Syska Gadget for Rs.599/-
Exhibits marked on the side of opposite party
Nil
Witness examined on the side of complainant
Nil
Witness examined on the side of opposite party
Nil
Cost allowed
Rs. 2000/- as cost
