IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOTTAYAM

Dated this the  27th day of September, 2023

Present:      Sri.Manulal.V.S, President

                                                                                                  Smt.Bindhu.R, Member

                                                                                                 Sri.K.M.Anto, Member

CC No.14/2023 (Filed on 13/01/2023)

Complainant                          :    Thomas Antony,       

                                                     Pallikkunnel  House,

                                                     Velloor, Pampady,

                                                      Kottayam  -  686 501.

                                              Vs.

Opposite parties                      :  1.   MyG Mobile Shop,

                                                                                                                    Thadathil Building,

                                                                                                                    T.B Road, Thirunakkara P.O,

                                                                                                                    Kottayam – 686 001.

                                                                                                             2.   Nokia Service Centre,

                                                                                                                   Jubilee Building,

                                                                                                                   T.B Road,

                                                                                                                   Kottayam – 686 001.                                                    

                                                                                                                   (By Adv:Renjithkumar K.C)

                                                 O R D E R

Sri.Manulal.V.S, President

The complaint is filed under Section 35 of the Consumer Protection Act 2019.

Case of the complainant is as follows :

Complainant purchased a Nokia mobile phone from the first opposite party on 28/01/2022 for an amount of Rs.8,598/-. The mobile phone became defective on different occasions.  The same was rectified by the first opposite party two times. When the complainant approached the first opposite party to rectify the mobile phone the third time, they refused to rectify the defect of the phone.  The first opposite party informed the complainant that the defect of the phone was  due to the lack of internet service.  Thereafter the phone started to show some complaints in receiving the internet and playing YouTube. The second opposite party retained the phone for repair work after giving another phone for the use of the complainant. Though the second opposite party returned the phone after 28 days the same complaint was persisting. It is averred  in the complaint that altogether 11 times the   phone  was repaired.  But YouTube was not responding and it developed malfunctioning. According to the complainant due to the deficiency in service on the part of the opposite party he had suffered much hardships and loss. Hence this complaint is filed by the complainant  praying  for an order to direct the opposite party to take back the mobile phone  and  to  refund  Rs.8,598/-  to   the   complainant  and   to  pay Rs. 20,000/- as compensation and Rs.20,000/- as cost of the  litigation.

After the admission of the complaint notices were sent to the opposite parties. Though the notice was received by the first opposite party on 9/02/2023 they did not care to appear before the Commission and to file version. Hence the first opposite party was declared  as exparte.

Second opposite party appeared before the Commission and filed version contending as  follows:

 The second opposite party  admitted that the complainant  purchased a mobile phone on 28/01/2022. The  phone of the complainant is not having any manufacturing defect. The defect was caused due to the installation of an application by the complainant. Installation of the trouble making applications will damage the protective mechanism of the phone. The defect occurred two times due to the installation of these kind of applications.

 The complainant tried a YouTube studio application for which the  phone should  have sufficient capacity. The phone which was purchased by the complainant is having a limited storage capacity and if any application which exceeds the storage capacity of the phone is installed the phone will be hung over.  The second opposite party instructed the complainant not to install the said application. After obtaining sanction from the company the second opposite  party has replaced the unit of the phone two times.  The  complainant is using the phone which has replaced the unit with. The complainant is not entitled  for any relief.

The complainant  is examined as PW1 and Exhibits A1  to A3(series) marked through the PW1.  M.B Gopakumar  who is the  Manager of the second  opposite party filed proof affidavit in lieu of chief examination. No documentary evidence on the part of the second opposite party.

On evaluation of complaint, version and  evidence on record we would like to consider the following points:

        (1) Whether the complainant has succeeded to prove deficiency in service or unfair trade practice on the part of the opposite parties ?

        (2) If so, what are the reliefs and cost?

For the sake of convenience we would like to consider point number one and two together.

POINTS  1 & 2 :

          There is no dispute on the fact that the complainant purchased a Nokia mobile phone from the first opposite party on 28/01/2022.  Exhibit  A1 proves that the complainant had paid Rs.8,598/- to the first opposite party  as the price of the phone. The specific case of the complainant is that the phone developed complaints and though the same  was  repaired  on several times the YouTube is not responding and it develops malfunctioning.

The complaint was resisted by the second opposite party, contending that the mobile phone which was purchased by the complainant is an entry level phone by the Nokia company with their highlighting feature called YouTube studio. It is further submitted by the second opposite party that long nonstop  use of the application  resulted  hanging and  temporary stoppage of the phone. 

During the cross examination the complainant deposed that the phone was repaired 11 times. It is further deposed that the second opposite party informed him that the complaint was due to the usage of YouTube studio application.  It is admitted by the second opposite party that they had repaired the phone on 9 occasions and gave two new sets to the complainant. 

It is pertinent to note that the manufacturer of the mobile phone is not a party in the complaint.  Though the complainant alleges manufacturing defect she did not care to get inspected the phone by an expert to prove the manufacturing defect. In the absence of opinion from an expert we could not hold that the mobile phone which was sold by the first opposite party to the complainant  is having an inherent  manufacturing defect. 

It is  proved by Exhibit A1 that the complainant had purchased extended warranty of the  GDEW  from the first opposite party  by  paying  an amount of Rs.507.63 from the first opposite party. Exhibit A2 is extended warranty certificate for the period from 28/01/2023 to 27/01/2023. On going through the conditions of the Exhibit A2 we can see that the first opposite party is the only authorized service centre to avail the benefits of the extended warranty. It is admitted by the second opposite party that the phone became defective during the period of the extended warranty. On a mere reading of Exhibit A2 we can see that the software issues of the mobile phone would come under the purview of the extended warranty. Therefore, we are of the opinion that the first opposite party is liable to rectify the defects of the mobile phone which was occurred during the coverage of the extended warranty which was sold by them. The non- rectification of the defects of the phone of the complainant during the period of warranty by the first opposite party who is the authorized service centre and  extended warranty provider amounts to deficiency in service on the part of the first opposite party. No doubt the act of the first opposite party caused much mental agony and hardship to the  complainant for which they are liable.

Considering the nature and circumstances of the case and the statutory principles of the Consumer Protection Act 2019 we are of the opinion that this complaint is to be allowed in part.

 In the result the complaint is allowed in part and we pass the following order.

We hereby direct the first opposite party to rectify the defect of the phone of the complainant and make it a defect free one free of cost within 30 days from the date of receipt of copy of this order failing which the first opposite party shall pay  Rs. 8,598/- to the complainant.

The first opposite party shall pay  Rs.2,500/- (Rupees Two Thousand and Five Hundred only)  as  compensation to the complainant for the deficiency in service on their part.

The order shall be complied  within 30 days  from the receipt of copy of this order failing in which the compensation amount  shall carry 9% interest per annum from the date of this order till realization.

 Pronounced in the Open Commission on this the 27th  day of September, 2023

  Sri.Manulal.V.S,  President      Sd/-

  Smt.Bindhu.R,  Member          Sd/- 

  Sri.K.M.Anto,  Member           Sd/-

APPENDIX :

Exhibits from the side of the Complainant :

A1         -   Copy of Tax Invoice  No.21-1-TNKR-5804 

                  dated 28/01/2022 for Rs.8,598/-

A2         -   Copy of GDEW Extended Warranty Certificate

A3         -   Copy of  Receipt of petition filed by the complainant

                  before the District Police Office, Kottayam, dated 31/12/2022

Exhibits from the side of Opposite parties :

Nil

                                                                                        By Order,

                                                                                          Sd/-

                                                                                Assistant Registrar