KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 437/2016

JUDGMENT DATED: 23.07.2019

(Against the Order in C.C. 40/2015 of CDRF, Malappuram)

PRESENT : 

SRI. T.S.P. MOOSATH                                                         : JUDICIAL MEMBER

SMT. BEENA KUMARY. A                                                : MEMBER

APPELLANTS:

1. Sony Mobile Communications Pvt. Ltd., Second floor, A31, Mohan Co-operative Industrial Estate, Mathura Road, New Delhi-110 044.

2. Madona Systems and Services, 19/1916 A, Sheraton Complex, Near Ganpat Boys High School, Chalappuram, Calicut-673 002.

(By Adv. Jaideep G. Nair)

                                                   Vs.

RESPONDENT:

Naveed Khayum, S/o Moideen Kutty, Kalthodi House, Vayakod Road, Areacode, Malappuram.

                                  (By Adv. S. Reghukumar)

JUDGMENT

SMT. BEENA KUMARY. A : MEMBER

The appellants are the opposite parties in C.C. No. 40/2015 on the file of Consumer Disputes Redressal Forum, Malappuram.  The respondent is the complainant.  The opposite parties were ex-parte in the District Forum.

2.  Brief facts of the case are as follows:  The complainant had purchased a mobile phone worth Rs. 29,333/- on 14.01.2014 by seeing the attractive advertisement of opposite parties. Thereafter the screen of the mobile phone was broken and it was replaced with new one. After one week, the replaced mobile phone was got damaged. The complainant approached the 2^nd opposite party for replacement of the mobile phone. But they were not ready for the same. Thereafter the complainant had issued a registered lawyer’s notice to the 1^st opposite party, for which they had not replied. The complainant alleging deficiency in service upon the opposite parties filed this complaint.  Opposite parties were remained exparte.  On the basis of the evidences adduced by the complainant the District Forum allowed the complaint and directed the opposite parties to pay Rs. 29,333/-, the price of the mobile phone with compensation of Rs. 10,000/- and cost of Rs. 4,000/- to the complainant.  Aggrieved by the impugned Order, the opposite parties filed this appeal.

3. The appellants argued that the order of the District Forum is against the facts of the case.  The Forum ought to have appreciated the fact that whenever the complainant is alleging manufacturing defects in the goods purchased by him, it is necessary for him to corroborate his case with material evidence in the form of an expert opinion.  In this case the respondent had failed to discharge the onus of proving his case and the District Forum had reached to a baseless conclusion that the mobile phone purchased by him was suffering from inherent manufacturing defects.  A broken screen cannot be considered as a manufacturing defect by any stretch or imagination.  The appellants further argued that the warranty terms and conditions pertaining to the mobile phone would show that physical damage of the phone has been specifically kept outside the purview of the warranty.  Hence the appellant prayed for setting aside the impugned order.  In the appeal, the appellants have not mentioned any reason for their non-appearance before the District Forum.  But for the interests of justice it is necessary to give opportunity to the appellants/opposite parties to contest the case on merits.   For that purpose the Order passed by the District Forum is to be set aside and the matter is to be remanded for fresh disposal.

4.  However, remission of the case after setting aside the order of the District Forum can be ordered only on terms, directing the appellants to compensate the injury likely to be caused by the delay in culmination of the proceedings to the complainant/respondent.  Appellants have to pay Rs. 7,000/- as costs to the respondent/complainant as a condition precedent for setting aside the order and remission of the case. 

5.  Complainant/respondent is permitted to get release of the amount of      Rs. 7,000/- ordered as costs from the amount deposited by the appellants at the time of institution of the appeal before this Commission, on proper application.  Refund the balance amount to the appellants, on proper application. 

In the result, the appeal is allowed.  The order passed by the district forum is set aside and the matter is remanded for fresh disposal, after giving opportunity to the appellant to file version and to adduce evidence, if any.  The district forum shall dispose of the complaint as early as possible. 

Send back the records to the District Forum, forthwith.

T.S.P MOOSATH     :  JUDICIAL MEMBER

jb                                                                                                                                    BEENA KUMARY. A        : MEMBER