IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 27th day of November, 2012.
Present : Sri. Jacob Stephen (President)
Sri. N. Premkumar (Member)
Smt. K.P. Padmasree (Member)
C.C.No.160/2012 (Filed on 12.10.2012)
Between:
Biju Thomas,
Purathemadom House,
Nedumanny.P.O.,
Kottayam Dist,
Pin – 686 542. …. Complainant
And:
1. Nokia India Pvt. Ltd.,
Flat No.1204, 12th Floor,
Kailash Building,
Kasturba Gandhi Marg,
New Delhi – 110 001.
2. The Proprieotr,
Cherys CD, DVD & Mobile,
SCS Junction,
Thiruvalla – 689 101,
Pathanamthitta Dist.
3. The Manager,
Nokia Care,
Rolex Mobile House,
Ennasseril Building,
Pathanamthitta – 689 645. …. Opposite parties
O R D E R
Smt. K.P. Padmasree (Member):
Complainant filed this complaint against the opposite parties for getting a relief from the Forum.
2. Brief facts of the case is as follows: On 04.04.2012 complainant purchased a Nokia C202 Mobile phone from 2nd opposite party, which is manufactured by the 1st opposite party. 3rd opposite party is the authorized service centre of 1st and 2nd opposite parties. Within one week from the date of purchase, the set was found defective. Complainant approached 2nd opposite party for repairing the same and handed over it to 2nd opposite party. After one week they returned the set without repairing by saying that complainant out serviced the set, thereby it is damaged and is beyond repairs. There is no logic in saying that the complainant out serviced the set when there is warranty. The act of the opposite parties caused great hardship and mental agony to the complainant. According to the complainant, the act of the opposite parties is a clear deficiency in service. Hence this complaint for getting the price of the mobile phone along with cost of ` 5,000 and compensation of ` 10,000.
3. 1st opposite party is exparte. 2nd opposite party entered appearance and submitted that they have no written version.
4. 3rd opposite party entered appearance and filed version with the following contentions. They admit that 2nd opposite party entrusted the mobile phone to them for repairing. But they found in their inspection that the said mobile phone was out serviced and its main part, circuit board heated and damaged. The said matter was intimated to the dealer and returned the mobile. Being an authorized service centre, their duty is to repair the mobile phones as per the conditions prescribed by the company. Accordingly, he acted. Hence the 2nd opposite party prays for the dismissal of the complaint against them as they had not committed any deficiency in service.
5. On the basis of the pleadings of the parties, the only point to be considered is whether this complaint can be allowed or not?
6. The evidence of this case consists of the oral testimony of PW1, DW1 and Exts.A1 to A3. After closure of evidence, both sides were heard.
7. The Point:- The case of the complainant is that he had purchased a mobile set from the 2nd opposite party. Within warranty period, the set become defective. Complainant approached the opposite parties for repairing the same. But the opposite parties refused to repair by saying that complainant out serviced the set, and it becomes damaged and thereby the complainant violated warranty conditions. The allegation of the opposite parties is baseless as the complainant had not given the set to anybody for servicing as there is a valid warranty. According to the complainant, the attitude of the opposite parties is a clear deficiency in service and opposite parties are liable to the complainant for the same.
8. In order to prove the complainant’s case, complainant adduced oral evidence as PW1 and the documents produced by the complainant were marked as Ext.A1 to A3. Ext.A1 is the retail invoice from 2nd opposite party. Ext.A2 is the photocopy of Ext.A1 in which there is a noting “out services No warranty”. Ext.A3 is the delivery note dated 20.04.2012 issued to the complainant.
9. On the other hand, the contention of the 3rd opposite party is that, set has been serviced in an unauthorized service centre. It is damaged beyond repair. Out service is a violation of warranty condition. Hence they are unable to repair. Hence they prays for discharging them from their liability.
10. In order to prove the contentions of the opposite party, 3rd opposite party adduced oral evidence as DW1. No documents produced on the side of the third opposite party.
11. On going through the evidences of this case, Ext.A1 clearly proves that the complainant had purchased a Nokia C202 Mobile phone from 2nd opposite party on 04.04.2012 for ` 4,550 with 12 months warranty. As per Ext.A3 it is seen that the complainant entrusted the same for repair on 20.04.2012 and it is returned without servicing by saying that it is serviced in an unauthorized service centre and it is beyond repair which is a violation of warranty condition. It is quiet unbelievable that a prudent man will service the set during the warranty period in an unauthorized service centre. It is also pertinent to note that first opposite party is exparte and second opposite party had not adduced any evidence. Moreover, third opposite party has not adduced any evidence to substantiate his contentions.
12. Hence we are of the view that opposite parties are deficient in the matter of rendering the service under warranty, they are bound to render. The opposite parties have denied to repair by saying that the set is serviced in an unauthorized service centre. Such an allegation is to be proved by cogent evidence by opposite parties because the burden of proof in respect of such allegations is definitely on their shoulder. Yet the opposite parties have not adduced any cogent evidence to show that there had been any unauthorized service and because of that the set become damaged. Mere allegation is not enough. Opposite parties are liable to prove their allegation with specific evidence that the complainant was responsible for any such fault. But there is nothing on record forthcoming from the side of the opposite parties in that respect. The mobile set is new one but it was found defective within one week. Since opposite parties have not been able to prove their allegation stated above, it is clear that the set is defective. Therefore, the opposite parties are jointly and severally liable to the complainant. Hence this complaint is allowable.
13. In the result, this complaint is allowed, thereby the opposite parties are directed to rectify the defects of the set or give a new C202 Nokia Mobile to the complainant after taking back the defective set or to pay the price of the mobile set ` 4,550 (Rupees Four thousand five hundred and fifty only) to the complainant along with compensation of ` 1,000 (Rupees One Thousand only) and cost of ` 500 (Rupees Five hundred only) within 15 days from the date of receipt of this order, failing which the complainant is allowed to realize the whole amount from the opposite parties with 10% interest from today till the realization of the whole amount.
Declared in the Open Forum on this the 27th day of November, 2012.
(Sd/-)
K.P. Padmasree,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Sri. N. Premkumar (Member) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Biju Thomas
Exhibits marked on the side of the complainant:
A1 : Retail invoice dated 04.04.2012 for `4,550 issued from 2nd
opposite party to the complainant.
A2 : Photocopy of Ext.A1.
A3 : Delivery note dated 20.04.2012.
Witness examined on the side of the opposite parties:
DW1 : Noushad. T.H
Exhibits marked on the side of the opposite parties: Nil.
(By Order)
(Sd/-)
Senior Superintendent
Copy to:- (1) Biju Thomas, Purathemadom House, Nedumanny.P.O.,
Kottayam Dist, Pin – 686 542. (2) Nokia India Pvt. Ltd., Flat No.1204, 12th Floor,
Kailash Building, Kasturba Gandhi Marg,
New Delhi – 110 001.
(3) The Proprietor, Cherys CD, DVD & Mobile,
SCS Junction, Thiruvalla – 689 101, Pathanamthitta
(4) The Manager, Nokia Care, Rolex Mobile House,
Ennasseril Building, Pathanamthitta – 689 645.
(5) The Stock File.
