IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> <br /> CC 253/09 DATED 10.09.2009<br /> ORDER<br /> <br /> Complainant Sridevi .B, No.492/G, 12th cross, Shivaji Road, North-East of N.R. Mohalla, Mysore-570007.<br /> <br /> (Sri Kumar, Advocate)<br /> <br /> Vs. <br /> Opposite Parties 1. The Manager, Nokia Care, Nanies Enterprises Pvt. Ltd., Jayalakshmi Arcade, Opp. Sri Raghavendra Swamy Mutt, N.S. Road, Mysore.<br /> 2. Proprietor, Arihanth Electronics, No.43, K.T. Street, Mysore-21.<br /> <br /> (By Sri B. Paneesh Kumar . For O.P.1, Sri M.B. Balaji Singh. For O.P.2, Advocate)<br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 15.07.2009<br /> Date of appearance of O.P. : 05.08.2009<br /> Date of order : 10.09.2009<br /> Duration of Proceeding : 1 Month 5 days<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. The complainant has filed the complaint Under Section 12 of the Consumer Protection Act seeking a direction to the opposite parties to replace a new mobile handset and also to pay compensation of Rs.79,900/- towards loss, embarrassment, wastage of time and mental agony. <br /> <br /> 2. It is alleged in the complaint that, the complainant purchased a new brand Nokia-5610 music cell phone for Rs.11,300/- from the second opposite party on 07.01.2009. Warranty period was one year. After a month from the date of purchase the handset showed some problems. Thereafter, the complainant gave it for repairs to the first opposite party. Even after repairs the handset continued to show the problems. But 6th time the complainant received the handset un-repaired. The problems with the usage of the phone are narrated as under.<br /> 1. “Auto-restart while speaking (on-line), listening to music, capturing snaps or video, while kept for charging.<br /> 2. The phone was advertised on Nokia websites n brochures that this phone can playback songs for 22 hours, 6 hours talk time, up to 320 hours standby times etc. but in reality though the battery was full I could play songs to the maximum of 3-4 hours or just 1.5 hours talk time and the stand by will be for 40-50 hours.<br /> 3. After few times continuous restart the phone will break-down or gets completely switched off (though battery contains charge).<br /> 4. Automatic phone language changes.<br /> 5. Messages won’t be delivered or received or sometimes 2 or more messages from same or different number mix up, sometimes even to & from unknown numbers. This problem has occurred several times.<br /> 6. Call will be automatically dropped even when there will be proper network”.<br /> 3. This shows the inappropriate manufacturer of the phone. Due to all miss-functioning of the phone the complainant faced problems and finally the phone broke down. She loosed an opportunity of job etc.,. On this grounds, it is prayed to allow the complaint.<br /> <br /> 4. The first opposite party has filed version contending that, the complainant is bad for non joinder of necessary party. Regarding purchase of handset, ignorance is pleaded. As regards the defects in the handset and inappropriate manufacturing phone alleging in the complaint, it is stated that, that is not in the knowledge of this opposite party. It is contended that, the first time on 01.07.2009 complainant had approached this opposite party with certain problems in the handset, which was repaired and having satisfied, the complainant took it back. It is contended that, with predetermined intention the complainant obtained Xerox copy of acknowledgement. Other allegations in the complaint are denied. Hence it is prayed to dismiss the complaint.<br /> <br /> 5. The second opposite party has filed objections that, it is only a dealer and getting meager profit by sale of the mobile. It is stated the complainant availed appropriate service from the first opposite party three four occasions in respect of minor problems in the handset. It is contended that, the problems were due to miss-handling of the handset. Also it is stated, if water insert the screen of the mobile become blur. It is contend that, the complainant unnecessarily dragged the opposite party to harass. Other material allegations are denied. <br /> <br /> 6. After the opposite party filed versions, the complainant filed a statement explaining the contentions of the second opposite party which will be considered whenever necessary.<br /> <br /> 7. To prove the facts alleged in the complaint, the complainant has filed her affidavit, wherein the facts alleged in the complaint are stated and so also certain explanation is offered in respect of the contentions of the opposite party. Certain documents are also produced. On the other hand, the authorized persons for both the opposite parties have filed their affidavits, wherein the facts with reference to the versions and some other facts, are stated. For the opposite parties also a document is produced. We have heard the arguments of the advocates for the complainant and the opposite parties. For the complainant written arguments are filed. We have perused the entire material on record. <br /> <br /> 8. Now, the points for our consideration are as under.<br /> <br /> 1. Whether the complainant has proved that, there is any deficiency in the service on the part of the opposite parties and that she is entitled to the reliefs sought?<br /> 2. What order?<br /> <br /> 9. Our findings are as under:-<br /> Point no.1 : Partly affirmative<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 10. Point no. 1:- Learned counsel for the opposite party, at the out set argued that, the complaint is not maintainable, as the complainant is not consumer since she has not purchased the mobile handset in question. In this regard the learned counsel pointed out that, in the cash bill name of the purchaser mentioned as B. Byrappa and not the name of the complainant. It is true, in the cash bill name of B. Byrappa as purchase is mentioned and not of the complainant. But, it is relevant to note that, for the second opposite party one Mr. Suresh has filed affidavit, wherein in the second paragraph, it is stated that “ I have sold the instrument to the present consumer Sridevi.B……….”. Thus, in fact the second opposite party admits and stated that, it had sold the handset in question to the present complainant. Hence, the submission of the learned counsel on the point is without substance. Not only that, both the opposite parties in the affidavits consistently stated that, the complainant had approached with minor problem in the handset to get it repaired etc.,. More over in the versions the opposite parties have not contend that, the complainant is not the consumer or she has not purchased the handset. It is submitted for the learned counsel for the complainant that, Mr. Byrappa, whose name shown in the cash bill is father of the present complainant. That fact is not disputed by the opposite parties. Hence, apart from the fact noted above that the second opposite party has specifically admitted that it sold the handset to the complainant, even if father of the complainant had purchased the handset for the use of his daughter, the complainant is the beneficiary and as held by the Hon’ble Apex Court, the beneficiary becomes a consumer.<br /> <br /> 11. Next contentions raised by the opposite party that complaint is bad for non joinder of the manufacturer. Admittedly, the second opposite party is dealer and has sold the handset in question. Hence, the dealer is liable irrespective of the liability on the part of the manufacturer.<br /> <br /> 12. It is submitted by the opposite party that, to prove the alleged problems in the handset there is no opinion of the expert. In this regard, it is relevant to note that, as per the terms of the guaranty the customer purchaser cannot take the handset to get it examined from third person and hence necessarily the handset had to be taken to the dealer or the authorized service center. In addition to it in the ruling reported in II (2008) CPJ 141 the Hon’ble State Commission has held that non filing of expert opinion does not wipe out the defects. More over even according to the opposite parties the hand set had some problems for which the complainant had approached the opposite parties to get the problems solved. It is specifically stated that, four five times the complainant had approached the opposite parties. Hence, if really there was no defect or problems with the handset, certainly no customer or purchaser of handset wasting the time and energy go to the service center or the dealer. At the cost of repetition in the case on hand, admittedly, the complainant had approached the opposite parties four five times. In the acknowledgement itself there is mention the complainant repeated fifth time. Hence, under this circumstances the contention of the opposite party that, there is no expert opinion is no ground to hold that, the handset had no problems or defects. <br /> <br /> 13. As regards the acknowledgement the learned advocate for the opposite parties vehemently argued that, there is mention that, the complainant received the handset in O.K. condition and satisfied and the complainant predetermined to drag the opposite parties to the court had obtained Xerox copy. In this regard, the complainant has explained that, acknowledgement she has obtained the Xerox copy as precautionary measure. Hence, considering the entire facts, the contention of the opposite party cannot be appreciated. <br /> <br /> 14. It is stated in the affidavit filed for the second opposite party that, the complainant to her vims and fancy purchased the instrument agreeing to the broacher and manual. A customer purchases an article at their choice and it cannot be termed as vims and fancy. It is also stated in the affidavit that, the complainant dragged to fight a fancy litigation. As noted here before, even according to the opposite parties, three four times and as mentioned in the acknowledgement 5th time, the complainant had approached the service center to get the handset repaired. The complainant admittedly purchased the handset paying Rs.11,300/-. Having purchased handset paying such amount, no customer will go to service center if really there was no defect or problem in the handset. At the cost of repetition, even according to the opposite parties there were some problems let it be minor or otherwise. Hence the contention of this statement in the affidavit that, the complainant dragged to fight fancy litigation, is without substance. <br /> <br /> 15. In the affidavit though the witness had spoken some soft words in respect of second opposite party, has used hard and harsh words against the complainant. It is alleged, that the complainant threatened that, she has all of tricks and supporters and further, though it was typed as men, money muscle power that is scored. The second opposite party is a dealer and the complainant is a lady. Thus at the outset the statement made in the affidavit cannot be believed. it is also stated in the affidavit that, the complainant, her supporters bombarded continuously with unparliamentarily words and that, the complainant hot blood container become exposed to highest voice etc.,. Use of these words itself prima facie make out to what extent the opposite parties have harassed the complainant a lady who had approached them to get the mobile handset repaired that, she had purchased paying huge amount.<br /> <br /> 16. Thus, from the facts and material on the record the case put forth by the complainant and the deficiency alleged on the part of the opposite parties, is established. The complainant has sought to direct the opposite parties to replace new handset. It is stated that, the hand set was returned by the service center un-repaired. On the other hand the opposite parties contended as mentioned in the acknowledgement, handset was received by the complainant in O.K. condition. In this regard, the complainant has stated that, as a formality, on the printed acknowledgement her signature was obtained and in fact the handset is un-repaired. If really the complainant had satisfied with the repair and had received the handset in O.K. condition, absolutely there was no reason or occasion for the complainant to issue notice to the opposite parties and file the complaint. Hence, under this circumstances, the contention of the opposite parties that, in O.K. condition the complainant had received the handset, has not been established. It is further relevant to note the attitude of the opposite party that, as claimed by the complainant after filing the complaint over phone she was called upon to withdraw the complaint and even a person was sent in this regard. Considering the words used by the witness in the affidavit filed for the second opposite party and other circumstances, the contentions of the opposite parties cannot be believed. Under the circumstances, the second opposite party shall replace new handset.<br /> <br /> 17. The complainant has claimed compensation or damages of Rs.79,900/- alleging that, because the handset did not work, she loss an opportunity of job. But considering the entire fact such remote damages or compensation cannot awarded. However, considering the attitude of the opposite parties, under the circumstances, towards inconvenience and mental agony, its is just to award a sum of Rs.5,000/- particularly in view of the words used by the second opposite party in the affidavit.<br /> <br /> 18. Accordingly we answer the point No.1 in partly affirmative. <br /> <br /> 19. Point No. 2:- From the discussions made above and conclusion arrived at, we pass the following order: <br /> <br /> ORDER<br /> <br /> 1. The Complaint is partly allowed.<br /> 2. The second opposite party is hereby directed to replace new brand handset to the complainant within a month from the date of the order. It is made clear that, the complainant to return the handset in question to the second opposite party at the time of receiving the new handset of the same make and model.<br /> 3. Further, the second opposite party is hereby directed to pay a sum of Rs.5,000/- to the complainant towards mental agony and inconvenience caused.<br /> 4. So also the second opposite to pay a sum of Rs.1,000/- towards cost of the proceedings. <br /> 5. Give a copy of this order to each party according to Rules.<br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 10th Sept 2009)<br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> (Shivakumar. J)<br /> Member<br /> <br />