order dated 29/05/2009<br /> <br /> O R D E R<br /> <br /> <br /> M.R. DEVAPPA, PRESIDENT. <br /> <br /> <br /> <br /> Briefly stated the case of the complainant is as under:<br /> <br /> <br /> <br /> 1. That the complainant purchased a NOKIA handset by paying Rs.7900/- on 10/02/2009 from O.P.1. <br /> <br /> <br /> <br /> 2. That with in a week of purchase i.e., on 15/02/2009 the mobile stopped working as it was not charging properly and therefore the complainant could not talk through the mobile with his friends or his relatives. On 16/02/2009 he visited the shop of Opposite Party No.1 and informed him about the fault and requested him to provide new mobile set. But the 1st Opposite Party took the mobile set from the complainant on the assurance that it would be set right and told the complainant to come after a week.<br /> <br /> <br /> <br /> 3. That the complainant as assured by Opposite Party No.1 again approached the Opposite Party No.1 and asked him to return the mobile set but to his surprise the Opposite Party NO.1 told that he has sent the mobile set to 2nd Opposite Party for repair and after one week the same would be get repaired and it would be returned to the complainant.<br /> <br /> <br /> <br /> 4. That the complainant went on asking about the mobile set with Opposite Party No.1, but 1st Opposite Party used to give lame excuses and at last told the complainant to enquire with the 2nd Opposite Party. <br /> <br /> <br /> <br /> 5. That the complainant contacted the 2nd Opposite Party many times over phone and the 2nd Opposite Party went on assuring the complainant that it would be ready with in a week and also told that the same has been sent to the manufacturing company i.e., 3rd Opposite Party.<br /> <br /> <br /> <br /> 6. That the 1st Opposite Party has given a warranty and since the mobile set went out of order with in the stipulated period he is entitled for new set as the 2nd Opposite Party told the complainant that the hardware and the software of the mobile is not working and the same would be repaired by the 3rd Opposite Party. The mobile set has been purchased by giving a considerably big amount and despite it the complainant could not use the same for the purpose for which it was purchased and therefore undergone mental agony and hardship and has prayed for following relief.<br /> <br /> <br /> <br /> a) A direction from the Forum to the Opposite parties to give new good working NOKIA mobile set at the earliest and award compensation deemed fit.<br /> <br /> <br /> <br /> 7. The complainant has produced cash bill to show that he has purchased the mobile set for Rs.7900/- from Opposite Party No.1 and also a copy of the delivery challan showing that he has given the mobile set for repair with Opposite Party No.2 wherein it is indicated that the set is not charging and also copy of the warranty given at the time of purchase.<br /> <br /> <br /> <br /> 8. Upon admitting the complaint notice was ordered to be sent and at the first instance Opposite Party No.1 and 2 remained absent and therefore they were placed exparte and Opposite Party No.3 appeared through his counsel and later Opposite Party No.2 filed an application for setting aside the exparte order and there was no objection from the side of the complainant the same was set aside and again at later stage Opposite Party No.1 appeared through his counsel and prayed for setting aside the exparte order, since no effective hearing has taken place and the complainant has no objection for that, the exparte order was set aside. <br /> <br /> <br /> <br /> 9. All the Opposite parties have filed version and affidavit in lieu of examination in chief and prayed for the dismissal of the complaint.<br /> <br /> <br /> <br /> 10.The following contentions have been taken by O.P.3.<br /> <br /> <br /> <br /> 10.1 The complaint is gross abuse of the process of law totally uncalled for and not maintainable in law and the complaint is filed with an intention to harass the opposite parties. <br /> <br /> 10.2 That the complainant has alleged that there is a major defect in the handset, without adducing any documentary evidence what so ever. <br /> <br /> <br /> <br /> 10.3 That the Hon’ble National Commission has held in several cases including in the matter of DH Kerudi Vs MDS Mithra and company III(2002)CPJ 299(NC) that the claim for defect must be proved by documentary evidence showing that the defect has occurred during the warranty period or was covered by the maintenance contract but the complainant was failed to produce documentary evidence in that regard.<br /> <br /> <br /> <br /> 10.4 That the allegation made in the complaint are baseless, frivolous and devoid of any merit. <br /> <br /> <br /> <br /> 10.5 That the service so offered by the authorized service center of Opposite Party No.3 is not covered by and it does not come under the definition of services as envisaged under section 2(o) of the Consumer Protection Act,1986. The service rendered is of free of charges and therefore Consumer Protection Act cannot be invoked.<br /> <br /> <br /> <br /> 10.6 That the warranty limited document is a part of the user manual and is inserted in every package of a cellular phone imported by Opposite Party No.3 and it serves as caveat to the buyer which means that in the event of any defect/problem in the handset, the handset will be repaired free of charges and hence the case of the complainant is not covered by and under the definition of service under section 2(o) of the Consumer Protection Act,1986. That the defective part is replaced or hand set replaced by another handset of the same model to avoid any kind of inconvenience or loss to the customer and the replacement as per the limited warranty is restricted only to the those cases where repair is not possible and where there is a genuine problem of repeated repairs of same problem. That there is no deficiency in service by Opposite Party No.3. That the allegation made in various paras are repetative and main grevience of the complainant is that the NOKIA mobile set purchased by him has not been served/problem to his satisfaction by the the NOKIA’s authorized service center. It is relevant to mention that the OP No.3 is always willing to perform its obligation under the terms of warranty and redress the greviences of the complainant and still willing to service/repair the handset to the satisfaction of the complainant as per the terms of the warranty and therefore the question of replacement of the handset/refund of the sale price/compensation does not arise. <br /> <br /> 10.7 That Opposite Party No.3 is ready and willing to replace the defective battery and hence the question of the replacement of the handset or refund of the sale price does not arise. <br /> <br /> <br /> <br /> 10.8 That the complainant instead of depositing the handset with the Opposite Party NO.2 has approached Opposite Party No.1, but he ought to have approached Oppopsite Party No.2 for repair as per the terms and condition of the warranty. <br /> <br /> <br /> <br /> 12. Opposite Party No.2 has taken following contention:<br /> <br /> <br /> <br /> 12.1 That the allegation made by the complainant are all false and misleading and there is no nexus between the Opposite Party No.2 and the complainant.<br /> <br /> <br /> <br /> 12.2 That the complainant has used the mobile phone very casually and has tampered and subsequently the said handset has been sent by the Opposite Party No.1 to Opposite Party No.2 for repair and services. <br /> <br /> <br /> <br /> 12.3 That the Opposite Party No.2 brought to the notice of the Opposite Party No.1 that the complainant is not entitled for any replacement since the handset was tampered which is not permissible and the handset ought to have been sent to the authorized agents only. But the complainant is believed to have repaired the handset in some other unrecognized service center and later on approached Opposite Party No.1. <br /> <br /> <br /> <br /> 12.4 That the Opposite Party No.2 has sent the handset to Oppostie Party No.3 immediately for repair and made arrangements to return it back to Oppostie Party No.1 and now the hand set is in perfect condition and therefore the claim of the complainant for a new handset is untenable. <br /> <br /> <br /> <br /> 12.5 That the allegations made in para 1 to 8 are all denied as false.<br /> <br /> <br /> <br /> 12.6 That the Opposite Party No.2 has not committed any deficiency in service on his part and the complainant can collect the mobile set from Opposite Party No.1 any time and as such the complaint is liable to be dismissed.<br /> <br /> <br /> <br /> 12.7 Having regard to the averments made in the complaint and the contentions taken by Opposite Party No.1 to 3 the following issues arise for determination. <br /> <br /> <br /> <br /> 1. Whether Opposite Party No.1 to 3 have committed deficiency in service in selling defective mobile set and in not rendering proper service to the complainant?<br /> <br /> <br /> <br /> 2. What order?<br /> <br /> REASONS<br /> 13.It is very pertinent to note that the Opposite Party No.1 to 3 have come up with the plea that the mobile set sold to the complainant has been repaired and the same has been kept in safe custody with Opposite Party No.1 But the complainant has been harassed and put to lot of inconvenience and mental agony and therefore has approached the Forum to seek his greviences redressed and prayed for direction to Opposite Party No.1 to 3 to give new good working NOKIA mobile set and to award compensation. <br /> <br /> <br /> <br /> 14.It may not be out of place to mention here that with in one week of purchase of the mobile set i.e., on 15/02/2009 the mobile set went out of order and complainant could not use the same and on that day he handed over the mobile set to Opposite Party No.1 for repair from whom the mobile set was purchased. But the Opposite Party No.1 assured the complainant that he would get it repaired through Opposite Party No.2, but the complainant was made to wait unreasonably and at last the Opposite Party No.1 told the complainant that he should approach Opposite Party No.2, who is stated to be in charge of authorized service center. But when the complainant approached Opposite Party No.2, Opposite Party No.2 also told the complainant that the handset has been sent to Opposite Party No.3 for servicing and repair. Like that the complainant has been harassed and has been made to run pillar to post, but everything ended in vein. Therefore it can be said that the complainant has been unnecessarily driven to the Forum when he could not get the relief and his problem was not remedied by Opposite Party No.1 to 3. But Opposite Party No.1 to 3 have submitted before the Forum that the mobile set in dispute is kept with Opposite Party No.1 and there is no problem with the handset and it is in proper order. Since, Opposite Party No.1 to 3 have failed to render proper service and for having sold the defective mobile set have committed deficiency in service. <br /> <br /> <br /> <br /> 15.The cash bill indicate that the complainant has paid Rs.7900/- which is not a small amount but immediately with in a week of its purchase started giving trouble and it is also reflected in the delivery challan that the battery in the handset is not charging. According to Opposite Party No.1 to 3 it is not a major problem and the same has been set right and the mobile set is ready for use. Opposite Party No.3 has taken a specific plea by drawing the attention of the Forum, a case held by the Hon’ble National Commission that when the mobile set can be repaired in that event the mobile set cannot be replaced with new one. <br /> <br /> <br /> <br /> 16.Opposite Party No.2 and 3 have sworn to an affidavit stating that the mobile set has been repaired and the battery has been replaced with new one and the mobile set can be used without any problem. Therefore it can be said that the repaired mobile set which is in the custody of Opposite Party No.1 can be delivered to the complainant and if any thing goes wrong in future, the set can be replaced with new one. But, it cannot be ordered that the mobile set in dispute is to be replaced with new one right now. <br /> <br /> <br /> <br /> 17.With the above discussion, Point No.1 is answered positively holding that the Opposite Parties have committed deficiency in service in not promptly attending to the requirement of the complainant and proceed to pass the following<br /> <br /> ORDER<br /> The complaint is partly allowed. The Opposite Parties No.1 to 3 are directed to handover the mobile set in dispute to the complainant. Opposite Parties No.1 to 3 are jointly and severally liable to compensate the complainant for he being put to hardship and mental agony and they are also directed to pay Rs.1000/- as compensation and Rs.1000/- as cost of the proceedings to the complainant.<br /> <br /> <br /> <br /> The above order shall be complied with in 60 days from the date of receipt of this order by the Opposite parties.<br /> <br /> <br /> <br /> Communicate the order to the parties.<br /> <br /> Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the open Forum on this 29th day of May 2009.<br /> <br /> <br /> <br /> <br /> <br /> (M.R. DEVAPPA), (K.S. PRASAD), (A.S. HEMALATHA),<br /> <br /> PRESIDENT MEMBER MEMBER<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />