BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD : THIRUVANANTHAPURAM

PRESENT:

SHRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENA KUMARI. A : MEMBER

SMT. S.K. SREELA : MEMBER

C.C.No. 197/2007 Filed on 13..09..2007

Dated: 15..12..2008

Complainant:

A. Thankarajan, Leena Bhavan, Narikkal, Konchira – P.O., Vembayam, Nedumangad, Thiruvananthapuram.

Opposite party:

Manager, Nokia Care Soft Line Communications, TC.25/1086, Malayala Manorama Road, Thiruvananthapuram – 695 014.

(By Adv. Nair Ajay Krishnan)

This O.P having been heard on 15..11..2008, the Forum on 15..12..2008 delivered the following:

ORDER

SMT. S.K.SREELA, MEMBER:

The brief facts of the case are as follows: The complainant had entrusted his mobile phone with the opposite party for repairing on 29..06..2007 and an amount of Rs. 200/- was paid towards repairing charges. Though the phone was entrusted for correcting the ring tone, it was not cured but other defects were rectified. Hence the phone was again given to the opposite party on the very next day and an amount of Rs.350/- was again paid as repairing charges on 31..07..2007. Since the phone became defective, again it was given for repairing. The complainant was informed that there is defect with regard to the display and he was asked to pay Rs.2,350/- by the opposite party. The mobile phone is still with the opposite party. The irresponsible act of the opposite party has caused great loss to the complainant. Under the pretext of repairing, the opposite party has destroyed the phone of the complainant worth Rs.15,000/-. Since the opposite party has acted irresponsibly and since the phone has become useless due to the act of the opposite party, the complainant claims compensation of Rs.15,000/- which is the cost of the phone along with compensation and costs.

2. The opposite party has filed their version contending as follows: On 13..06..2007 the complainant first approached the opposite party with a mobile phone set which had no warranty coverage, to install a new ring tone facility and simultaneously for checking the loud speaker functions and the same was done and delivered to the satisfaction of the complainant. On 29..06..2007, the complainant again approached the opposite party since he wanted to install smart movie functions to his mobile phone. The same was also done and delivered to him to his satisfaction. The set was again brought on 18..07..2007 for service in a dead stage and it was found that due to abnormal use of the instrument by the complainant the same defect had occurred. The set was repaired and delivered on payment of Rs.350/-. Thereafter the complainant brought his phone for service with a damaged display which had occasioned due to some external pressure exerted on the instrument thereby damaging the display. The complainant was informed and he had agreed for Rs.2,350/- towards repairing charges. The complainant was informed to collect the repaired set, after paying the charges, but instead of collecting the phone, the complainant has filed this complaint before this Forum. The complainant is not entitled to any of the relief sought for in the complaint. The opposite party has not committed any fraud or any loss as alleged in the complaint. Hence prays for dismissal of the complaint with costs.

3. The complainant has filed affidavit and examined as PW1, marked Exts. P1 to P3. The opposite party had no evidence.

4. The issues that would arise for consideration are:

1. Whether there is any deficiency in service on the part of the opposite party?

2. Whether the complainant is entitled for any of the reliefs claimed?

5. Point No.(i): The complainant has alleged that he had entrusted his mobile phone with opposite party on 13..06..2007 for obtaining ring tone facility and it was collected on 29..06..2007 by paying Rs.200/-. But since there was no sound, on use, it was again entrusted with the opposite party for which Rs.50/- was collected. It became defective again and the opposite party collected Rs.350/- stating that the phone software is defective and the opposite party returned the phone stating that the defects are rectified. But the phone became defective again and the opposite party informed the complainant that there is problem with the display and hence Rs.2,350/- is required. According to the complainant, the above defect had occurred due to the callous and negligent act of the opposite party.

6. According to the opposite party the phone was brought before them on 13..06..2007, 29..06..2007 and thereafter on 18..07..2007 with complaints of installing a new ring tone facility and simultaneous check of the functioning of the loud speaker, to install smart movie functions and lastly for service of phone in a dead stage, respectively. On all these occasions the complainant had taken the delivery to his satisfaction. Thereafter on 18..07..2007 itself the phone was brought with damaged display which according to the opposite party had occasioned due to some external pressure. The repair charge of Rs.2,350/- was informed to the complainant and though he had agreed the same, he never came to collect the phone.

7. We have gone through the records produced by the complainant. Ext.P1, the receipts evidences the jobs done as on 29..06..2007 and 31..07..2007 and P2 is the service job sheet dated 13..02..2007. The opposite party has not marked any documents on their part. Though certain records are seen produced they are not seen marked.

8. The complainant has alleged that the phone has become defective due to the negligent and irresponsible act of the opposite party. Admittedly, the handset is with the opposite party and the opposite party has not produced it before the Forum. As per the pleadings in the complaint and according to the affidavit of the complainant, the complaints are all inter-related. At first he had entrusted the phone with the opposite party for ring tone facility, since the loudspeaker was complaint after that it was again given to opposite party with loudspeaker complaint and again after that, the phone became defective and the phone was given for repairing and the opposite party informed the complainant that the display is defective for which Rs.2,350/- was claimed. The opposite party contends that the complainant was informed with regard to the service charge of Rs. 2,350/- and with his consent to the same only they have repaired the phone. According to PW1, 'ഫോണ്‍ ശരിയാക്കിയ ശേഷം വിളിച്ചിരുന്നു, 2,350/- രൂപ ആവശൃപ്പെട്ടു, ആയതിനാലാണ് സെററ് തിരികെ വാങ്ങാതിരുന്നത്'. Opposite party has not proved their contention that the complainant was informed with regard to the charge of Rs.2,350/- at the time of entrustment of the phone by the complainant. Moreover, according to PW1, the defective phone has been entrusted with the opposite party on the very next day of delivery after repair itself. "Battery charge ആകുംപോള്‍ എല്ലാം ശരിയാകും എന്ന് പറഞ്ഞു, എന്നിട്ടും ശരിയായില്ല, പിറ്റെ ദിവസവും കൊണ്ടു പോയി കൊടുത്തു. 350/- രൂപ ആവശൃപ്പെട്ടു, മൊബൈല്‍ഫോണ്‍ തിരിച്ചുതന്നു. പിറ്റെദിവസം വീണ്ടും തകരാറാകുകയും എതൃകക്ഷിയെ ഫോണ്‍ ഏല്‍പ്പിച്ചു". This has not been challenged by the opposite party. As per the same, it is clear that the defects persisted and the complainant was forced to give his phone to the opposite party immediately after each delivery (after each repair). In the above circumstance, we are inclined to conclude that since the opposite party has not done the repairs properly, this complaint has been enunciated.

9. Moreover, the learned counsel for the opposite party had contended that the complaint is baseless since the complainant has not taken the mobile set back and such a cause of action can arise only after the set is taken back and subjected to expert opinion under Sec 13(1)(c) of the Consumer Protection Act. It is a settled position that as per Sec 13(1)(c) of Consumer Protection Act--, expert opinion is necessary to decide the case, but in this case since the mobile set in dispute is with the custody of the opposite party, the said procedure is not capable of being followed. As per the ruling cited in 1994 (4) SCC 315 it is the settled position that no fault can be found with District Fora, State Fora or the National Commission in the matter of not following the procedure under Sec 13(1)(c) when the complaint was not in possession of the same.

10. Considering the entire facts, circumstances and evidence, it is found that it was the duty of the opposite party to repair the mobile set properly at the first instance itself. The defects in the complaint have occured immediately after each delivery which goes to show that the repairs have not been done properly. This act of the opposite party amounts to deficiency in service which has caused the complainant to suffer a great deal of mental agony for which the complaint has to be compensated.

11. In the light of the above discussions we find that the complainant has succeeded in establishing his complaint. The complainant is found entitled to get his mobile set defect free, free of cost from the opposite party. The complainant is also found entitled for an amount of Rs.1,000/- towards compensation and costs of the proceedings.

In the result, the opposite party is directed to return the mobile set belonging to the complainant in a defect free condition, free of cost, along with Rs.1,000/- (Rupees One thousand only) towards compensation and costs to the complainant within a period of one month, failing which execution proceedings can be initiated.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, on this the 15^th day of December, 2008.

S.K. SREELA, MEMBER.

G. SIVAPRASAD,

PRESIDENT.

BEENA KUMARI.A, MEMBER.

ad.

CC.No. 197/2007

APPENDIX

I. Complainant's witness:

PW1 : Thankaraj

II. Complainant's documents:

P1 : Photocopy of receipts

(a) No.4207 dt.31/07/2007

(b) No.3802 dt.29/06/2007

(c) No.3801 dt.29/06/2007

P2 : Photocopy of service job sheet dt.13/02/07

P3 : Photocopy of first page of passport No.A- 44692134 and Exit Re-entry visa

III. Opposite party's witness : NIL

IV. Opposite party's documents : NIL

PRESIDENT.