DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the  27^th  day of June,  2022   

Present      :   Sri.Vinay Menon V.,  President

                  :   Smt.Vidya A., Member                        

                  :  Sri.Krishnankutty N.K., Member                                   Date of Filing: 01/08/2019

     CC/204/2019

Keerthana J.K.,

D/o.Jayakrishnan E.,

Residing at

Sai Sadan, Kallipadam (PO),

Shornur, Palakkad                                                        -          Complainant

 (By Adv.V.R.Sivadasan)

                                                                                    Vs

1. Nazar S.,

New Network Mobiles,

Golden Plaza,Complex,

Near Bus stand, Ottapalam

Palakkad – 679 101

2. The Regional Office,

Oppo Electronics Service Centre,

Building No.67/6446 B, C,

Banerji Road, Near High School,

Cochin – 682 031

3. Oppo (represented by its Managing Director

Or Authorised Signatory)

Oppo Electronic Service Centre,

Building No.67/6446 B, C,

Banerji Road, Near High School,

Cochin – 682 031
 

4. Oppo Electronics Kerala Pvt.Ltd.,

 Authorised Service Centre,

Shop No.13/700, Premier Tower,

 Coimbatore Road, Palakkad -678 001                                   -           Opposite parties

             (OPs 1,2 & 4 are exparte)

             OP3  by Adv.K.K.Thankappan)

O R D E R 

By Sri. Vinay Menon V., President

1. Abridged  pleadings of the complainant  are  as follows:

The complainant purchased a mobile phone manufactured by Oppo from the 1^st opposite party by effecting payment of Rs.12,300/-.  The mobile was being used in a very careful and cautious manner. While the phone was still in the warranty period  its started showing various defects. Therefore the mobile was taken to the first opposite party who directed the complainant to take the mobile to the 4^th opposite party. Even though the mobile was under warranty period the benefit there under was denied stating that  the warranty was void. In order to carry out the repair,  the opposite parties demanded an amount of Rs.6500/- in an illegal and arbitrary manner.  The complainant is aggrieved by the demand of the aforesaid amount for carrying out repairs  of the mobile while it was still under warranty period. The complainant sought for the cost of the mobile phone and other incidental reliefs.

2. The opposite parties 1,2, & 4 were set exparte. Opposite party No.3 filed version stating that the complainant was not entitled to the reliefs sought for as the opposite party denied service under warranty as they found  a number of wear and tear damages due to rough use and the mainboard was bend due to mishandling of the phone.  This fact was intimated to the complainant and therefore the complainant was not entitled to  any reliefs sought for.

3.         Pleadings and counter pleadings considered, it would be appropriate to consider the following issues to adjudicate the lis.

1. Whether the complainant has proved deficiency in service on the part of opposite parties or that the mobile phone was suffering from defects ?
2.  Whether there is any  other unfair trade practice on the part of the opposite parties ?
3.  Whether the complainant is entitled to the reliefs sought for?
4. Reliefs, as to Compensation and Cost  ?

4(1).     Evidence on the part of the complainant comprised of chief affidavit and Ext.A1 to A4. Father of the complainant adduced evidence as PW1. Opposite party (3) filed    proof affidavit and  Exts.B1 to B5 were marked on their part.

4(2).   Marking of Ext.B4 was objected to on the ground that the said notice was not received by the complainant. Ext.B5 is objected to on the ground that it is non decipherable and not original.

4(3)      Ext.B4 is a lawyer’s notice issued by M/s.C.C.Abraham and Associates, Lawyers and Consultants, to the complainant for and on behalf of the opposite parties (2) & (3).  This communication is not accompanied by the an acknowledgement card issued by the postal authority.  Hence, the objection of the complainant that it was not received by her is sustained. 

4(4)      Ext.B5 is a series of two pictures claiming to be photocopies of photographs.  Nothing can  be ascertained by going through the said pictures.    Nothing prevented the contesting opposite party  from producing  a clear photograph. Hence, objection raised by counsel for complainant with regard to Ext.B5 is also sustained. 

4(5)      Therefore Ext.B4 & B5 will not be considered for any evidentiary purposes in coming to a conclusion as regards the merits of this complaint.

 Issue no. I  

5.         The only question that is to be considered to answer this issue is  whether the mobile  phone purchased by the complainant suffered from any defects.  In the words of the complainant,

1. “The mobile phone is not getting on and the display of the mobile is not functioning.
2. Even after long effort it switches on very rarely  and getting on the mobile while using it abruptly switched off.
3. The audio and video clarity is also very weak”. (SIC)

6.         Ext.A2 is the customer service information issued to the complainant.

The remarks seen in Ext.A2 is as “NO POWER ON; HEATING WHILE CHARGING; BEND FOUND ON MAIN BOARD; SCRATCHES ON BATTERY COVER”

The repair remarks in the said document is as follows:

“BEND FOUND ON MAIN BOARD, WANT TO REPLACE MAIN BOARD, ESTIMATION NOT APPROVED BY CUSTOMER”.  

7.   Pursuant to an application filed as IA 46/2021 filed by the opposite party No.3, the complainant had produced the mobile phone in this Commission for inspection by this Commission. On going through the mobile phone, this Commission could not find any apparent or patent damages on the outside. Even though there were a couple of scratches here and there, they  were not scratches that would evidence a careless and negligent use. Further there was no bend of whatsoever nature on the body of the mobile. The mobile phone was returned to the custody of the complainant on 8/2/2022.

8.   Even though burden of proof was  upon the complainant to prove her  case by way of expert evidence, in the facts and circumstances of the case, we believe it can be dispensed  with for the following reasons;

1. It is the clear case of the opposite party that the main board of the mobile phone was bend and the battery cover suffered from scratches.  No evidence was adduced by the opposite party other than by way of indecipherable  darkened pictures claiming to be Photostat copies of photographs. The said documents cannot be relied on as already stated in sub paragraph 4(4) of  paragraph (4) supra.
2. On making a cursory glance of the mobile phone submitted by  the complainant pursuant to the application filed by the opposite party No.3, we could not find any damages to the exterior portion of the mobile phone.  A main board,  if it had bend by the rough use of the complainant, there ought to be some damages to the external body of the mobile phone also. Nothing was apparent and patent  in this case. Body of the phone had not suffered any bends.
3. Even though the opposite parties had alleged that there were scratches owing to rough and negligent use, upon our physical verification we could not find any scratches arising out of rough and negligent use. There were scratches. Yet they were minimal and would not affect the performance of the mobile so as to void the warranty conditions. The exterior of the mobile presented a neat and clear picture.

9.         For the aforesaid reasons we believe that it is safe to discard the evidence of an expert to come to a conclusion as to the defect / damage suffered by the mobile phone of the complainant. We hold that the mobile phone of the complainant is suffering from inherent latent defects.

 Issue No.2

10.       From a reading of the above paragraphs,  it is clear that the mobile phone purchased by the complainant is having inherent latent defects. The opposite parties ought to have either replaced  the damaged component of the mobile phone or replaced the mobile. Instead of  doing so,  they cast aspersions on the complainant alleging that she had been negligent in using the mobile phone. 

We therefore,  hold that there is deficiency in service on the part of the opposite parties. 

Issue Nos.3 & 4

11.       In view of the findings in issue Nos.1 & 2 we hold that the complainant is  entitled to the following reliefs.

a) The complainant is entitled to  refund of Rs.12,300/-   being the cost of the mobile phone.

b) The complainant is entitled to an interest @9% over the aforesaid amount from 20/8/2018 till date of payment.

c)The complainant is entitled to a compensation of Rs.15,000/- for deficiency in service on the part of opposite parties.

d)The complainant is entitled to a cost of Rs.10,000/-

e) The opposite parties are jointly and severally liable to pay  the aforesaid  amounts to the complainant.

f)The above order shall be complied within a period of 45 days from receipt of a copy of this order, failing which the complainant shall be entitled to a solatium of Rs.250/- per month or part thereof  from the date of this order till date of final payment.

                        Pronounced in open court on this the 27^th  day of June, 2022.

          Sd/-

                                                                                                             Vinay Menon V

                                                      President

          Sd/-

    Vidya.A

                        Member     

                          Sd/-     

                                                                                               Krishnankutty N.K.

                                                                                                      Member

APPENDIX

Exhibits marked on the side of the complainant

Ext.A1 -  Original retail invoice dated 20/8/2018

Ext.A2  - Customer information letter dated 25/5/2019
Ext.A3 – Original of  warranty card dated 20/8/18

Ext.A4 -   Copy of lawyers notice dated 3/6/2019 alongwith postal receipts and      

                  acknowledgement cards.

Exhibits marked on the side of the opposite party

Ext.B1 –  Copy of Authorisation letter dated 29/8/2019

Ext.B2 – Original of Ext.A2

Ext.B3 – Original ELS report dated 25/5/2019

Ext.B4 – Copy of lawyer’s notice dated 24/6/2019 (not relied on).

Ext.B5 – Photocopy of  photographs. (not relied on)

Witness examined on the side of the complainant

PW1 – Jayakrishnan E

Witness examined on the side of the opposite party

Nil
Court Exhibits

Nil   

Cost :  Rs.10,000/- allowed as Cost.