DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB           : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Tuesday 28^th day of November 2023

CC.373/2018

Complainant

Bigiljith,

S/o Babu,

Ariyambayath House,

Makkada P.O, Kakkodi,

Kozhikode.

Opposite Parties

1.           Nokia India,

3-3-6/2 Below Canara Bank,

Hydarabad, Thelungana,

PIN – 500003.

(By Adv. Sri. P.Rajeev)

2.           3 G Mobile World,

Seema Tower, Mavoor Road Junction,

Kozhikode – 673001.

3.            Mobnet Mobiles,                                                                                                                                                                                       3^rd Floor, Uamuna Arcade,

Opp. White Line Hotel,

Kallai Road, Palayam,

                    Kozhikode – 673001

By Sri. P.C. PAULACHEN  – PRESIDENT.

This is a complaint filed under Section 12 of the Consumer Protection Act, 1986.

2.  The case of the complainant, in brief, is as follows:  

The complainant purchased a Nokia 6.1 mobile hand set from the shop of the second opposite party on 5/06/2018. But within 20 days of the purchase, the mobile hand set began to give problems and it was found unsuitable for the purposes for which it was purchased. The hand set switched off automatically. The second opposite party stated that it might be due to minor problems, which could be corrected easily and he was directed to the service centre, which is the third opposite party herein. The third opposite party promised to repair/ service the hand set and make it in a sound working condition. But nothing was heard from the third opposite party thereafter. Hence the complainant went to the service centre and on enquiry it was informed that the product would be replaced, for which, some more time was required. The complainant is a singer and the phone was required for his work promotion. On 25/9/2018, when he contacted the third opposite party, it was informed that the hand set could not be sent for replacement as there was a direction from the second opposite party not to send the defective hand set for replacement. There was unfair trade practice and deficiency of service on the part of the opposite parties which has resulted in mental agony and monetary loss to the complainant and his work as a singer was adversely affected. The product is still in the possession of the third opposite party who has deliberately delayed the repair. Hence the complaint to direct the opposite parties to replace the mobile hand set with a brand new one, along with compensation of Rs. 30,000/-.

3. The first opposite party, which is the manufacturer, has resisted the complaint by filing written version. The second and third opposite parties were set ex-parte.
4. According to the first opposite party, the defect, if any, to the product has arisen due to the negligent handling of the hand set by the complainant himself and there is no manufacturing defect to the product. The fact that the complainant was not able to use the phone for the purpose he purchased it is not a cause of action for the complaint. The first opposite party has not been approached by the complainant and there is no allegation of any sort against the first opposite party. The complainant has falsely alleged that he had visited the service centre on several occasions demanding rectification of the defect. The first opposite party is not privy to any communication between the complainant and the retailer and the authorised service centre. There is no deficiency of service on their part or any manufacturing defect in the product. It is, therefore, prayed to dismiss the complaint.
5. The points that arise for determination in this complaint are;

                       (1). Whether there was any deficiency of service on the part of the opposite parties, as alleged?

                       (2). Reliefs and costs

6. Evidence consists of the oral evidence of PW1 and Exts A1 and A2 on the side of the complainant. At the time of evidence, the contesting first opposite party remained absent and did not cross examine PW1. Subsequently, the first opposite party filed a petition as IA No. 204/2013 to reopen the evidence and to recall PW1 for the purpose of cross examination. The petition was allowed on terms- vide order dated 10/10/2023. But the cost as ordered was not paid by the first opposite party and there was no representation on behalf of the first opposite party and hence the evidence was closed.
7. Heard the complainant.  
8. Point No 1:- The complainant has approached this Commission with a grievance that the Nokia 6.1 mobile hand set purchased by him became defective soon after the purchase and the opposite parties neglected to rectify the defect or to replace the defective hand set. The first opposite party is the manufacturer, the second opposite party is the retailer and the third opposite party is the authorised service centre of Nokia mobile phone.
9. In order to substantiate his case, the complainant got himself examined as PW1, who has filed proof affidavit in terms of the averments in  the complaint and in support of the claim, reiterating that the mobile hand set purchased by him on 5/6/2018 paying Rs. 18,999/- became defective soon after the purchase and though he had entrusted the product to the third opposite party on 5/07/2018 for repairs/replacement, as instructed by the second opposite party, neither the product was repaired nor did they replace the product and it is still in the custody of the third opposite party. Ext A1 is the retail invoice dated 5/6/2018 issued in the name of the complainant by the first opposite party  and Ext A2 is the service job sheet dated 5/7/2018.
10. Ext A2 shows that there is no clarity while singing smule and watsapp video also (voice modulation). Thus Ext A2 proves that the mobile hand set became defective and it was entrusted to the service centre on 5/7/2018. PW1 has asserted that the hand set is still in the custody of the third opposite party.
11. The evidence of PW1 stands unchallenged. As we have already stated, the second and third opposite parties have not turned up to file version. Though the first opposite party has filed written version denying and disputing the claims and allegations raised in the complaint, they also chose to remain absent at the time of evidence and did not avail the opportunity to cross examine PW1 and thus the evidence of PW1 stands unchallenged and uncontroverted. The opposite parties have not produced any evidence to disprove the averments in the complaint or to rebut the veracity of the documents produced and marked by the complainant. The case of the complainant stands proved through the testimony of PW1 and Exts A1 and A2.
12. The complainant, who is a singer and who had purchased the mobile hand set by paying Rs. 18,999/- was not able to use it soon after the purchase and the product did not suit his purposes. The hand set is neither repaired nor replaced by the opposite parties. There is gross deficiency of service on the part of the opposite parties. As far as the complainant is concerned, the said hand set is now a worthless product. The complainant is entitled to get a brand new hand set or in the alternative, return of the purchase price. Undoubtedly, the act of the opposite parties has resulted in mental agony and inconvenience to the complainant, for which, he is entitled to be compensated adequately. Considering the entire facts and circumstances, we are of the view that a sum of Rs. 5,000/- will be reasonable compensation in this regard. The complainant is also entitled to get Rs. 3,000/- as cost of the proceedings. The opposite parties are jointly and severally liable.  
13. Point No. 2 :- In the light of the finding on the above point, the complaint is disposed of as follows;

                  a)  CC.373/2018 is allowed in part.

b) The opposite parties are hereby directed to replace the Nokia 6.1 mobile hand set sold to the complainant as per Ext A1 with a new hand set of similar description which shall be free from any defect or in the alternative, refund the purchase price of Rs. 18,999/- (Rupees   eighteen thousand nine hundred and ninety nine only) to the complainant.

c) The opposite parties are directed to pay a sum of Rs. 5,000/- (Rupees five thousand only) as compensation to the complainant for the mental agony and hardship suffered.

d) The opposite parties are directed to pay a sum of Rs. 3000/- (Rupees three thousand only) as cost of the proceedings to the complainant.

e) The order shall be complied with within 30 days of the receipt of copy of this order.

Pronounced in open Commission on this, the 28^th day of November, 2023.

Date of Filing: 17/12/2018

                                Sd/-                                                         Sd/-                                                       Sd/-

                      PRESIDENT                                              MEMBER                                               MEMBER

APPENDIX

Exhibits for the Complainant :

Ext A1 -  Retail invoice dated 5/6/2018 issued in the name of the complainant by the first opposite party.

Ext A2 -  Service job sheet dated 5/7/2018.

Exhibits for the Opposite Party

NIL

Witnesses for the Complainant

PW1 -  Bigiljith (Complainant)

Witnesses for the opposite parties 

 Nil

                                      Sd/-                                                             Sd/-                                                           Sd/-

                             PRESIDENT                                                MEMBER                                                  MEMBER

True Copy,      

                                                                                                                                                     Sd/-

                                                    Assistant Registrar.