BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.46/2008

Dated this the 10^th day of February 2016

K. Vijayakumar, son of M. Krishnaraj

No.5, Iswarya Nagar  

Vazhudavur Road, near Ponlait Daisy

Puducherry – 605 009.

                             ….     Complainant

Vs.

1. M/s Univercell Tele Communications (I) Pvt Ltd.,

    No.213, S.V. Patel Salai, Puducherry rep. by its

    Authorised Signatory

2. The Manager             

    M/S LG Electronics (I) Pvt. Ltd.,

    Plot No.A-5, Mide Rangangaon

    Tal: Shirur, Pune – 412 220

    Maharashtra  

                                                                             ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

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

           MEMBER

          Thiru V.V. STEEPHEN, B.A., LL.B.,

          MEMBER

FOR THE COMPLAINANT           : M/s Balaji and S. Bremkumar, Advocates

FOR THE OPPOSITE PARTIES   : Exparte   

(OP1 was represented by Thiru R. Gobi, Advocate and OP2 was represented by Thiru M. Lakshmi Narasimhan.  No instruction was endorsed  by the Counsel for OP2)

O R  D  E  R

(By    Thiru.A.ASOKAN, President )

This is a complaint filed by the complainant under section 12 (1) of the Consumer Protection Act praying to direct the opposite parties to return the cost of cell phone 1800/-;  A compensation of Rs;50000/- for mental agony and loss of business and for cost.

2. The case of the complainant is as follows:

          The complainant purchased  a LG Handsets-KG 271 Black Model  cell phone from first opposite party on 07.03.2008 for Rs1800/- . Within a month the charge become down and then, the cell phone was not working completely. He complained the same before the first opposite party who issued LG Service slip dated 09.04.2008 vide receipt No.090408012. When he went to the service people after two days, they have told that the board completely got damaged and it has to be replaced which would fetch a cost of Rs1800/- alleging that cell phone might have got wet. There after the complaint went to first opposite and informed the same who received his cell phone and issued Job card dated 10.04.2008 vide No. 23168.  After two days, he went to first opposite party who also said the same as stated by the service people.  Since the cell phone got repaired within a month, he got loss in the business as well as he suffered mental agony.  Hence, he issued a notice to the opposite parties on 26.04.2008, but, no reply was received.  Hence, this complaint.

          3. The reply version of the Opposite Party No.1 briefly discloses the follows:

          While admitting the sale of complaint alleged cell phone, it is stated by them that the mobile phone will be replaced by the LG company only if there is a manufacturing defect and the said defect would be scrutinized by the Service Engineer.  The first Opposite party is only a retailer selling cell phones of various companies and if any defects or complaints received, it will be forwarded to the concerned company.  This opposite party stated that they have requested the complainant to approach the LG and it has not done any deficiency in service or acted negligently.  It is further stated by this opposite party that at the time of selling the produce issued the receipt for the product and it contained "Mobile Handsets and charges re warranted for a period defined by the respective manufacturer against the defect in material and workmanship.  This opposite party does not hold any warranty of the products sold by him.  The terms incorporated in the receipt / bill specified that the retailer seller is not personally liable to answer the defects that may occur in the sets.  The handset was handed over to Opposite Party No.2 for service and OP2 identified and suspects that the handset is "Water Logging" in the charging section.  Hence, it was out of warranty as per the warranty provided by OP2.  The complainant has not filed any report of an independent expert as defined under section 2 (1) (a) of the Consumer Protection Act, 1986.  In this regard, the  opposite party relied upon a judgment reported in "SABEENA CYCLE EMPORIUM CHANNAKHAADA vs THAJES RAVI M.R. PANCHA VILLAGE VEDAR EZKHONE P/O/ (1992) I CPJ 97 wherein, the Hon'ble Commission held that "Where the complainant alleges defects in the goods, the Forum is bound to determine this fact on the basis of clear evidence by way of expert opinion".  This complaint lacks merits and this Opposite party is neither liable nor responsible for compensation.  Hence, prayed for dismissal of the complaint with exemplary costs.

          4. The reply version of OP2 briefly reads as follows:

          The handset was found water soaking or water damage and the same is not covered under Warranty and the same was communicated to the complainant in the Service slip.  However, to have good customer relation, they have tried their best to repair the handset.  The warranty card clearly mentioned that "Warranty is not valid for damages resulting due to "soaking" (W/D, water soaking) besides others.  It is further stated by this opposite party that subsequent to the receipt of summons from this Forum, they had offered to replace the main board, the most expensive part of the handset, since the same would resolve the problem of the complainant's handset irrespective of the fact that the warranty is not valid for water soaking.  There is no deficiency of service or any quality related problem.   The second Opposite Party's service centre had at once checked the mobile and had shown that there are liquor-spell/water marks in parts inside the mobile.  The complaint itself is in admissions that complainant is for compensation for Loss in business / commerce and hence, the case is on commercial purpose.  Hence, prayed for dismissal of the complaint.   

5        The complainant has chosen to examine himself as CW.1 and marked Exs.C1 to C5.

6        Points for determination are:

1. Whether the complainant is the consumer as defined in the Consumer Protection Act?

2. Whether any deficiency in service caused by the opposite parties to the complainant?

3. To what relief the complainant is entitled for?

7        Point No.1:

          The complainant has purchased one L G – Handsets – KG 271 Black cell phone from the first opposite party duly manufactured by the second opposite party for a valid consideration of Rs.1800/- on 07.03.2008 vide Ex.C1. Hence the complainant is the consumer as per the Consumer Protection Act.

8.       Point No.2:

          We have perused the pleadings, exhibits and evidence adduced by the complainant.  The opposite parties were duly served and they have also filed their reply versions, however, they did not come forward to adduce any evidence before this Forum.  The first opposite party after filing reply version, not come forward to let evidence and hence, they were set ex parte.  As far as the second opposite party is concerned, the learned counsel appearing for them filed reply version and reported no instruction.  Hence, they were also set exparte for non-appearance.  It is evident through Ex.C1 that the complainant has purchased one L.G. handset KG 271 Black colour cell phone manufactured by the second opposite party and sold by the first opposite party on 07.03.2008 for Rs.1800/-vide Ex.C1.  Since the said cell phone got repaired within a short span of one month, he had handed over the same with the first Opposite Party on 09.10.2008 and the service sheet Ex.C2.  The Opposite Parte No.1 has sent the same to the authorised LG Service Centre, who in turn stated that the cell phone charging area got wet and hence, the board was completely damaged and until and unless the board is replaced, the cell phone could not be serviced and also stated that the replacement of board would cost Rs.1800/-.   Since the cell phone got repaired within a month of purchase, he issued legal notice dated Ex.C4 26.04.2008 to the opposite parties.  Though the said notices were received by the opposite parties, they have not even cared to reply for the same.  Hence, the complainant filed this complaint. 

          9. It is alleged by the first Opposite Party that they are only retailer of mobile phone selling of all brands and any manufacturing defects should be informed to the company.  It is stated by the second opposite party that as soon as they received the summons from this Forum, they had offered to replace the main board (PCB, Printed circuit board),  irrespective of the fact that the warranty is not valid for water soaking.  Further alleged by the second opposite party that the complainant has not filed any expert report that the alleged cell phone got manufacturing defect.  Moreover, it is stated by the second opposite party that the complaint itself says that the cell phone is used for commercial purpose and hence, it lacks merits and deserves to be dismissed.

10.     From the above facts and circumstance of the case, the second  opposite party itself has admitted and offered that they would replace the main board which is the most expensive part of the handset even though the warranty is not covered for water soaking.  The admission of replacement by the opposite party itself  proves that the cell phone purchased by the complainant has some manufacturing defect.  Even though it is stated by the opposite parties that the cell phone charging area got water drops, they have not come forward to let any evidence. 

11. It is another allegation of the opposite parties that the cell phone was used for commercial purpose.  On careful reading of complaint, we found that the complainant stated that he is doing business and due to non-functioning of the cell phone, he could not able to contact his customer and therefore, he suffered loss in his business.  This will not termed as commercial purpose.  In this case, the commercial purpose means, a person  bought a goods and used the same for the purposes of earning his livelihood by means of self-employment.  The complainant did not purchase the cell phones for resale the same for gain.  Hence, the allegation that the complaint itself shows that the alleged cell phone is used for commercial purpose cannot be taken into  consideration. 

           12. Further, the allegation that the complainant has not filed any expert report that the handset got manufacturing defect.  The complainant alleged that he purchased the cell phone and within a month of purchase, it became dead and hence, he brought the same to the knowledge of the first Opposite Party who serviced the same and found some water drops present in the board of the cell phone and hence, the board itself got damaged.  If it is so, nothing prevented the opposite parties to examine the person who serviced the mobile phone and establish their case that the cell phone soaked with water.   In the absence of any evidence on the side of opposite parties, this Forum come to the conclusion that the complainant has established his case and proved the negligent act of the opposite parties.  Hence, this complaint is liable to be allowed.

13.     Point No.3:

          In view of the decision taken in point No.2, the complainant is entitled for the following relief and the opposite parties are jointly and severally liable to pay the compensation.

In the result,

1. The opposite parties are directed to return the amount of Rs.1,800/- to the complainant towards the purchase cost of the cell phone;
2. The opposite parties are directed to pay a sum of Rs.5,000/-                    towards compensation for the deficiency in service;
3. The opposite parties are directed to pay a sum of Rs.5000/- towards cost of this proceedings.
4. The complainant is directed to return the cell phone after compliance of this order.

           The above said order should be complied within two months from the date of receipt of this order.

Dated at Pondicherry on this the 10^th day of February 2016.

1. ASOKAN)

   PRESIDENT

(PVR. DHANALAKSHMI)

     MEMBER

        (V.V. STEEPHEN)

               MEMBER

COMPLAINANT’S WITNESS:

OPPOSITE PARTIES’ WITNESS:  NIL

COMPLAINANT’S EXHIBITS:

OPPOSITE PARTIES' EXHIBITS:  Nil

LIST OF MATERIAL OBJECTS:                       NIL

1. ASOKAN)

   PRESIDENT

(PVR. DHANALAKSHMI)

     MEMBER

        (V.V. STEEPHEN)

               MEMBER