BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM
VAZHUTHACAUD, THIRUVANANTHAPURAM.
PRESENT
SRI. P. SUDHIR : PRESIDENT
SMT. R. SATHI : MEMBER
SMT. LIJU B. NAIR : MEMBER
C.C. No. 222/2010 Filed on 21.07.2010
ORDER DATED: 28.09.2017
Complainant:
Ashok Kumar. B, S/o Bhaskaran Nair, residing at 10/2171(5), ‘Magadha’, Kanjirampara P.O, Thiruvananthapuram-695 030.
(By Adv. G. Rajeev)
Opposite parties:
- Nokia India Pvt. Ltd., Chennai Factory, Sreeperumbathoor, Chennai, Tamil Nadu represented by its Director.
(By Adv. V.K. Mohan Kumar);
- The Proprietor, M/s Binary Systems, RNP Buildings, Vellayambalam, Thiruvananthapuram-695 010.
- M/s Power Link, Nokia Care Centre, T.C No. 14/1017, Opposite to Trivandrum Club, Vazhuthacaud, Thiruvananthapuram-10.
(By Adv. Nair Ajay Krishnan for 3rd O.P)
This case having been heard on 09.06.2017, the Forum on 28.09.2017 delivered the following:
ORDER
SRI. P. SUDHIR: PRESIDENT
Gist of the complainant’s case is that complainant had purchased a brand new cellular phone with brand name Nokia N-81 (GSM) with ESN/IMEI No. 356994018976856 for an amount of Rs. 14550 from the 2nd opposite party on 25.06.2009 for his personal use. The battery of the said brand new cell phone has been guaranteed for a talk time up to 3 to 4 hours and its standby time up to 10 days by the 1st opposite party being the manufacturer. Believing the advertisement of the opposite parties, the complainant purchased the said cell phone. From the beginning of its use, in a single charging of the handset, he could not use his brand new phone for at least 5 calls with average talk duration of 5 minutes for each such call. Moreover the said cell phone became over heated on its use. The complainant intimated these defects as well as the running down of the battery (fast draining of battery) of the brand new cell phone to the outlet of the 2nd opposite party in time. Just after a week of purchase of the brand new cell phone, the complainant informed these defects directly to the 2nd opposite party and they replied that it may due to invasion of the virus through its blue tooth. As per the direction of the 2nd opposite party, they themselves had formatted the cell phone to de-virus the handset. But, since the said defects continue, the complainant repeatedly approached the 2nd opposite party to and at that time they informed the complainant to approach the 3rd opposite party who are the authorized service provider. The complainant, as per the direction of the 2nd opposite party approached the 3rd opposite party to get the complaint of the impugned handset rectified. The 3rd opposite party informed the complainant that they sent the said defective handset to their service centre at New Delhi by informing that there are some manufacturing defects in its hard disk. The 3rd opposite party returned the defective set to the complainant claiming that the original unit of the said handset was replaced with another unit which bears ESN/IMEI No. 356994014183689 in February 2010. The complainant again approached the 3rd opposite party with the same complaints through the 2nd opposite party complaining the mal-functioning of the brand new cell phone. The 3rd opposite party once again sent the defective set to their service centre at New Delhi and they claimed that the replaced unit of the said handset was again replaced with another fresh unit in March 2010. The complainant is the Managing Editor of ‘Trivandrum Herald’ the Malayalam monthly news and he has been suffering great difficulty and inconvenience to his profession due to the mal functioning of the purchased brand new handset. The complainant on several times demanded the opposite parties 2 & 3 to replace the handset with a brand new one to avoid his inconvenience and difficulties. But the opposite parties 2 & 3 has a deaf ear to the said legitimate demand and they are least bothered about the complainant’s cry. To the common knowledge of the complainant the impugned cell phone had severe manufacturing defects and being the manufacturer the 1st opposite party along with the opposite parties 2 & 3 has committed unfair trade practice and deficiency in service to rectify the substituting complaints in the impugned cell phone purchased by complainant. The complainant did want to continue to service of the purchased handset. The complainant had issued registered notice to the opposite parties by registered post with A/D to return the value of the hand set that has been received by the 2nd opposite party and an additional amount of Rs. 50,000/- as compensation to the difficulty and inconvenience caused to the complainant in his profession due to the mal functioning of the purchased hand set. The opposite parties received the notices and they did not comply with the reasonable demand of the complainant. On 11.06.2010, belatedly the 3rd opposite party through their advocate had sent a reply raising false and untenable contentions. The 1st opposite party had acted in most negligent manner in manufacturing the impugned handset and the opposite parties 2 & 3 are liable for breach of contract as they have not complied with the terms of guarantee and not recommended to the manufacturer to replace the defective handset with a brand new one. The inconvenience and mental agony caused to the complainant due to the mal-functioning of the cell phone is because of the extreme negligent attitude of the opposite parties. The complainant sustained mental pressure due to the fast draining of the battery of the handset which from the 2nd opposite party because the complainant has been forced to reserve the charger facility with him wherever he travel or visit even for his official purpose. Thus the opposite parties are jointly and severally liable to pay an amount of Rs. 50,000/- as compensation for the mental agony and inconvenience caused to the complainant due to the mal-functioning of the hand set and the 2nd opposite party is liable to refund an amount of Rs. 14,550/- which is the price of the impugned cell phone.
Notice sent to opposite parties. Opposite parties 1 & 3 accepted notice and appeared and filed version. 2nd opposite party accepted notice and not turned up and set exparte.
As per the version of 1st opposite party the contention taken is that the allegation that the Nokia mobile hand set had severe manufacturing defect is absolutely false and hence denied. Hence this opposite party has not committed any unfair trade practice for any deficiency in service. The replacement or the return of the value of the purchased hand set arises only when the manufacturing defect of the equipment is proved. This opposite party asserts that there is no manufacturing defect in the handset manufactured by this opposite party. The manufacturing defect can be detected only by a technical expert in that particular field. Hence without an expert examination, the manufacturing defect of the mobile phone handset cannot be revealed. At any rate this opposite party is not liable to replace the handset with a new one or return any money as prayed by the complainant in this complaint as this opposite party has not received any amount from the complainant. The complainant is not entitled to any relief against this opposite party. This opposite party is not liable for Rs. 50,000/- or any other amount as compensation. The notice sent to this opposite party has properly replied denying any manufacturing defect. This opposite party had not acted in any negligent manner as alleged by the complainant. If manufacturing defect is proved this opposite party is always ready and willing to replace the hand set with a similar new one. It is denied at any inconvenience or mental agony are caused to the complainant due to any of the actions or omissions on the part of this opposite party.
The contention of 3rd opposite party is that the 3rd opposite party was a service provider of Nokia mobile phones till 31.05.2010. A service provider is only expected to receive handsets from customers, note down the complaint in the job card and forward it to the service agent/the manufacturer, in the instant case the 1st opposite party. Once the new hand set was received back by this opposite party from the 1st opposite party the customer was contacted and the handset handed over/returned to the complainant to his satisfaction. The 3rd opposite party has nothing to do with any of the allegations raised by the complainant in the complaint.
Issues:
- Whether there is any unfair trade practice or deficiency of service on the part of opposite parties?
- What is the order as to compensation and costs?
Issues (i) & (ii):- Complainant filed chief examination affidavit and examined as PW1. Exts. P1 to P8 marked. PW1 cross examined by opposite parties 1 & 3. Complainant has taken a commission and commission report marked as Ext. C1. PW1 deposed in cross of 3rd opposite party “case-ന് ആസ്പദമായ set ഇപ്പോള് ആരുടെ കൈയിലാണ്? എന്റെ കൈയിലാണ്. ഈ set service centre-ല് നിന്നും വാങ്ങിക്കൊണ്ട് പോകു മ്പോള് പൂ൪ണ്ണ തൃപ്തനായിരുന്നല്ലോ? കൊണ്ടു പോകുക complaint വരുകയാണെങ്കില് കൊണ്ടു വരിക എന്നാണ് പറഞ്ഞത്”. In Re-examination “Proper ആയി ഉപയോഗിക്കാന് കഴിയില്ലായെന്നു പറഞ്ഞാല് ഈ phone രണ്ട് മിനിറ്റ് പോലും charge ചെയ്താ ല് ഉപയോഗിക്കാന് കഴിയില്ല. എത്ര തവണ Delhi-ക്ക് അയച്ചു. 3 പ്രാവശ്യം Delhi-ക്ക് അയച്ച് service ചെയ്ത് unit മാറ്റുകയുണ്ടായി.” 3rd opposite party is examined as DW1 and DW1 cross examined by complainant. 3rd opposite party’s contention and argument is that they were ready to replace the phone with an identical one. As per Ext. C1 there is manufacturing defect. The case is filed in 2010 and the model of the product is Nokia N 81-3. Now it is an outdated one and the model is out of stock from the market. Applying practical mind and for the just disposal of the case our opinion is better to refund the amount. So we are of the opinion that opposite parties 1 & 2 are directed to refund the price of the mobile to complainant. 3rd opposite party being the service centre is herewith exonerated. Hence opposite parties 1 & 2 are directed to pay Rs. 14,550/- with interest at the rate of 6% per annum from the date of purchase i.e; 25.06.2009 till realization and to pay compensation of Rs. 10,000/- for the mental agony suffered by the complainant and Rs. 5000/- towards the cost of the proceedings.
In the result, complaint is allowed. Opposite parties 1 & 2 are directed to pay Rs. 14,550/- with interest at the rate of 6% per annum from the date of purchase i.e; 25.06.2009 till realization and to pay compensation of Rs. 10,000/- for the mental agony suffered by the complainant and Rs. 5000/- towards the cost of the proceedings within one month from the date of receipt of this order failing which the compensation amount also carry interest @ 6% per annum from the date of default.
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, this the 28th day of September 2017.
Sd/-
P.SUDHIR : PRESIDENT
Sd/-
R. SATHI : MEMBER
Sd/-
LIJU B. NAIR : MEMBER
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C.C. No. 222/2010
APPENDIX
I COMPLAINANT’S WITNESS:
PW1 - Asok Kumar. B
II COMPLAINANT’S DOCUMENTS:
P1 - Copy of purchase bill for Rs. 14,550/-
P2 - Replacement note dated 09.02.2010
P3 - Replacement note dated 03.03.2010
P4 - Copy of service job sheet
P5 - Copy of advocate notice and postal receipts
P6 - Acknowledgement cards ( 3 Nos.)
P7 - Reply notice dated 11.06.2010
P8 - Nokia N 81 User Guide
III OPPOSITE PARTY’S WITNESS:
DW1 - Anil Kumar. S
IV OPPOSITE PARTY’S DOCUMENTS:
NIL
V COURT EXHIBIT
C1 - Commission Report
Sd/-
PRESIDENT
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