CC No.1853/2018                                                                        Date of filing:16.11.2018

                                                                                                 Date of Disposal:23.09.2019

BEFORE THE III ADDITIONAL BANGALORE URBAN DISTRICT

CONSUMER DISPUTES REDRESSAL FORUM,

BENGALURU– 560 027.

DATED THIS T23rd  DAY OF SEPTEMBER 2019

CONSUMER COMPLAINT NO.1853/2018

PRESENT:

Sri    Venkatasudarshan  D.R.  B.Com,LL.M.,              …. President

Smt  L.Mamatha, B.A., (Law), LL.B.                              ….      MEMBER

COMPLAINANT:

Sri. Harshith. C

S/o Channegowda .M,

23 years, R/at No.1, A block,

Police quarters, 8^th cross,

Behind National Public School,

Kengeri Satellite Town,

Bengaluru-560060.

 (Complainant by Sri. Ramachandra .N,Advocate)          

 V/s

OPPONENTS:

1. Nokia Network India,

Corporate office (Manufacture

Of Nokia Mobiles) 7^th floor,

Building 9A, DLF Cyber city

Phase III, Gurgaon-122022, Haryana.

2. Poorvica Mobiles Pvt. Ltd.,

(Dealer of Nokia Mobiles), No.45,

3. HMD Global India

(Customer Support) Pioneer

Urban Square, Tower C, 5^th floor,

Golf Course Extension road,

Sector 62, Gurgaon-122002,

4. Technoservicezone,

(Authorized Nokia Mobile Service

Center), # 15, 1^st temple street,

Near 10^th cross, opp Asha sweets,

Malleshwaram, Bengaluru-560003.

 (Opponent  No.1 & 3 By Sri.N. Jagadish Baliga,

Opponent No.2 by Sri. Kiran M.M , Advocate,

Opponent No.4 - Exparte)

= = = = = = = = = = = = =                                         

Written by Sri Venkatasudarshan D.R., President

              ******

// ORDER//

This is a complaint filed under section 12 of the Consumer Protection Act 1986 by the complainant Sri. Harshith .C against Nokia Network India & 3 others praying for direction to the opponents to pay a sum of Rs.75,699/- being the loss incurred by the complainant, damages for causing mental agony, for refund of the purchase amount together with interest 18% p.a from 21.09.2018 till the date of actual realization and for cost.

2. The brief facts of the case of the complainant are that opponent No.1 is a manufacturing company of Nokia Mobiles.  Opponent No.2 is the dealer of Nokia Mobiles.  Opponent No.3 is the customer support of the 1^st opponent and opponent No.4 is the authorized service center of Nokia mobile.

3. It is the case of the complainant that on 24.06.2018 he purchased one Nokia 7 Plus –Black:Nokia M- mobile from the 2^nd opponent for a sum of Rs.27,699/-.  It carried a warranty for a period of one year and six months for accessories.  The complainant was assured that the battery backup is good and it work efficiently. 

4. It is the further case of the complainant that on  21.09.2018 while checking the photos gallery the screen went off and the complainant tried to restart the mobile.  At that time, it appeared on the screen “Your Phone has ever been rooted this may result in system instability, malware or virus attack or privacy information leakage”.  The complainant immediately approached the 2^nd opponent and requested him to rectify.  The 2^nd opponent directed the complainant to 4^th opponent who is an authorized mobile service center.  When the complainant approached the 4^th opponent on 21.09.2018 and handed over the mobile he was given job sheet.  On 21.09.2018 the 4^th opponent returned the mobile to the complainant saying that the mother board has to be changed for which the complainant has to pay 70% of the total cost and collected Rs.350/- from the complainant for having inspected the mobile. 

5. After receiving the mobile from 4^th opponent the complainant sent e-mail to opponent No.1 regarding the said complaint and requested to rectify the same.  The complainant got reply from the opponent asking him to perform software reset in order to boot up.  The complainant complained to opponent No.3 through e-mail but not of any avail. On 24.09.2018 as per the instruction given by opponent No.3 the complainant again visited opponent No.4 and called opponent No.3 over phone to its toll free number.  After communication between opponent No.3 and opponent No.4, the opponent No.3 told the complainant that mother board has to be changed towards which he has to bear 70% of the cost, as the same do not come under warranty condition.  Opponent No.3 has closed the case though the issue was not resolved.  Thus it is submitted that none of the opponents have attended to cure the defect in the mobile which according to the complainant was a manufacturing defect.  This also amounts to deficiency in service.  The complainant has claimed Rs.75,699/- which includes cost of the mobile, loss of income, compensation for mental agony and travelling expenses.

6. There are 4 opponents in this case.  After admitting the complaint the notices were ordered to be issued all the opponents.  Opponent No.1 to 3 entered appearance through their advocate, opponent No.1 and 3 have filed version.  A separate version has also filed by opponent No.2.  opponent No.4 has remained absent, though the notice was served.  Hence, opponent No.4 has been placed exparte. 

7. In the version filed by opponent No.1 and 3 it is contended that the complaint as brought is not maintainable.  It is contended that the manufacturing defect alleged by the complainant has not been proved.  It is contended that the complainant has failed to operate the handset with  due care. It is also stated that the mobiles are manufactured with great care and caution and under stringent quality mechanism to ensure that they are free from all defects when it reaches the consumers.  In the event of any defect or problem in the handset it will be repaired free of charge in the authorized service center during the warranty period.  The defects if any in the set alleged by the complaint is only due to negligent handling and not a manufacturing defect.  It is contended that there is no deficiency in service on the part of the opponents.  Therefore it is contended that the opponents are not liable to pay any amount much less the amount claimed in the complaint.  Hence, prays for dismissing the complaint. 

8. Opponent No.2 the dealer of mobiles has filed a separate version in which it is admitted about the sale of the mobile in question to the complainant with a warranty of one year and six months accessory warranty if not physically damage.  It is further submitted that if any problem occurs during the warranty period opponent No.2 is not liable it is only a dealer.  It is contended that the product was in a very good condition when sold.  It is admitted that when the complainant came on 21.09.2018 with some problem in the mobile he was refered to opponent No.4 who is an authorized service center.  It is contended that opponent No.2 is not responsible for any damage.  Hence, prays for dismissing the complaint.

9. When the case was set down for recording evidence the complainant got examined by filing his affidavit evidence, sworn to the contents of the same and also referred to some documents about which the reference will be made in the course of this order.  In spite of granting sufficient opportunities the opponents 1 to 3 have not let in any evidence much less the evidence by filing affidavits.  Hence, it was taken that the opponents have no evidence to lead.

10. Heard the arguments of the learned advocate for the complainant who has also filed written arguments.  No arguments advanced on the opponent side in spite of sufficient opportunities being given. 

11.      The points that arise for our determination are:-

(1) Whether the complainant proves that there is deficiency in service on the part of the opponents?

(2) Whether the complainant is entitled for the reliefs sought in the complaint?

12.    Our findings on the above points are:-

Point No.1:- In the affirmative.

Point No.2:- Partly in the affirmative.

Point No.3:- As per the final order for the following.

13. Point No.1:- This is a complaint filed by the complainant Sri. Harshith .C seeking direction to the opponent No.1 to 4 to pay a sum of Rs.75,699/- with interest at 18% p.a to be calculated from the said amount from 21.09.2018 till the date of realization and for cost.

14 In order to substantiate the case of the complainant the complainant got himself examined by filing affidavit evidence in which he has repeated all the complaint averments on oath.Since the averments made in the complaint have already been narrated above, there is no need for us to again narrate the averments in the affidavit.Further to substantiate the oral evidence the complainant has produced the copy of the tax invoice annexure-A for having purchased the said mobile from the 2^nd opponent for a sum of Rs.27,699/-.The another document produced is annexure-B which is the copy of the service job sheet dated 21.09.2018 by the authorized service center for having received the mobile perhaps for rectification.The evidence of the complainant that the authorized service center has received Rs.350/- towards inspection charges is also proved by producing the copy of the invoice.There are series of e-mail communication between the complainant and opponent No.1 in particular and also opponent No.3 in connection with the repairing of the said mobile.All these evidences both oral and documentary have remained unchallenged since the opponent No.1 to 3 who have filed version denying the case of the complainant have not let in any evidence including the evidence affidavit of any responsible person or authorized signatory of their respective establishments.So all the averments made in the version filed by opponent No.1 to 3 have remained as version only without there being any evidence on oath to support the same.The opponents who have contended that the defect had occurred in mobile set because of the complainant not handling it carefully and not operating properly.By taking such contention the opponents have admitted defect in the mobile which warrants replacement of mother board.That too within 3 months from the date of purchase.When such being the case the opponents ought to have proved that the defect in the mobile set was due to in efficient operation handling by the complainant.Therefore we have to accept the undisputed evidence of the complainant.Under such circumstances we have to rely only on the evidence of the complainant and the documents produced.All these would clearly show that there was deficiency in service on the part of the opponents.It is more so when opponent No.4 the authorized service center who’s appearance before the Forum and statement in the form of version was more important.To answer the allegations made in the complaint the opponent No.4 himself remained absent and thus placed exparte.This conduct of opponent No.4 show by implication that the allegations made in the complaint against opponent No.4 are not denied.In the light of above, we answer point No.1 in the affirmative and in favour of the complainant.

15. Point No.2 & 3:- In view of the finding recorded on point No.1 in favour of the complainant the next aspect considered is about to reliefs to which the complainant is entitled., to claim from the opponents and which of the opponents are liable.

16. In this case there are 4 opponents.  Opponent No.2 is the dealer who sold mobile to the complainant.  The tax invoice issued by the opponent No.2 and produced by the complainant itself shows that the dealer opponent No.2 cannot be held liable for defect in the product or any deficiency.  The opponent No.3 is only the customer support of opponent No.1.  Hence, no liability can be fastened on opponent Nos.2 and 3.  Hence, the complaint filed against opponents No.2 and 3 is liable to be dismissed.  Consequently whatever the relief to which the complainant is entitle, it has to be fulfilled/complied by opponent No.1 the manufacturer and opponent No.4 the authorized service center.  They are liable jointly and severally.  

17. In the case on hand, the complainant has sought for refund of the price of the mobile i.e., Rs.27,699/- or for the replacement of the mobile.  This relief cannot be given all at once.  Instead the opponents No.1 and 4 are to be directed to see that the mobile set is completely repaired by replacing the parts with new one wherever it is necessary and  make it 100% functional.  After effecting such repairs it should be returned to the complainant with an extended warranty for a period of 9 months.  If for any reason the opponents No.1 and 4 cannot carry out the repairs as mentioned above, then only the complainant would be entitle for refund.  The complainant has purchased the mobile on 24.06.2018. It went out of order on 21.09.2018.  That means the complainant had used the mobile for 3 months.  Therefore when it comes to the question of refund, taking into consideration the period of usage, we deem it fit and proper to direct the opponents No.1 and 4 to refund either jointly or severally a sum of Rs.20,000/- which shall be together with interest at 8% p.a. to be calculated from 21.09.2018.

   18. The complainant has claimed Rs.20,000/- towards loss of income  except making an averment in the prayer column there is no averment in the complaint as to how and in what manner the complainant has suffered any loss much less the loss of Rs.20,000/- claimed in the complaint.  Therefore no compensation is awardable under this head.

   19. Though compensation for mental agony caused has to be awarded in cases of this type because of the physical and mental harassment undergone by the complainant, the claim of Rs.25,000/- made by the complainant is baseless and without any proof.  But it cannot be ruled out that the complainant suffered mental agony.  Therefore, having regard to the facts and circumstances of the case, we award a sum of Rs.5,000/- as compensation for mental agony undergone by the complainant.

     Further, no document is produced by the complainant to show that he had incurred Rs.3,000/- towards travelling expenses as claimed in the complaint.  Hence, this claim is disallowed. 

    20. However, the facts remains that the opponents by their conduct have driven the complainant to file this complaint before the forum by engaging the services of an advocate  and took pains to fight out this case in order to take the same to the logical end.  The opponents have not even bothered to reply to the legal notice sent by the complainant under RPAD before  the complainant filing this complaint.  The copies of the document produced in the form of track consignment shows that the notices issued were delivered at the address.   Despite that opponents kept quiet and that made the complainant to file this complaint.  Therefore, we award a sum of Rs.3,000/- towards cost of litigation.  In the result we answer point No.2 partly in the affirmative and in favour of the complainant and proceed to pass the following final order.

ORDER

     The complaint filed Under Section 12 of Consumer protection Act by Sri. Harshith .C is allowed in part as under:-

   1.  The opponents No.1 and 4 the manufacturer and authorized service center are hereby directed to carry out repair to the mobile by replacing the spare parts wherever necessary and make it perfectly functioned 100% and return the same along with extended warranty for a period of 9 months.

                                                   OR

    In the alternative if for any reason opponents No.1 and 4 are not able to effect repairs as ordered above, they  are jointly and severally liable to pay a sum of Rs.20,000/-(Twenty thousand) only together with interest at 8% p.a. to be calculated from 21.09.2018 till the date of payment to the complainant.

    2. The complainant is entitled to receive a sum of Rs.5,000/- (Five Thousand only)  as compensation towards mental agony sustained by them  and also further sum of Rs.3,000/- towards cost of litigation from the opponent Nos.1 and 4 who are jointly and severally liable to pay the same. 

     3. The opponent Nos.1 and 4 shall comply with the above direction within 30 days.

     4. The complaint filed against opponents No.2 and 3 is dismissed.

     Supply free copy of this order to both the parties.

(Dictated to the Stenographer, typed by her, the transcript corrected, revised and then pronounced by the open Forum on  23^rd day of September 2019  )                                            

  (L.Mamatha)                                 (D.R. Venkatasudarshan )      

     Member                                                    President.   

      //ANNEXURE//

Witness examined for the complainant side:

1. Mr. Harshith .C, who being the Complainant has filed his affidavit.

Witness examined for the opponent side:

1. Sri. Sridharmurthy N.S, Senior Divisional Commercial Manager being the  Opposite Party by way of affidavit.

Documents marked for the complainant side:

1. Copy of legal notice.
2. Copy of postal receipts and acknowledgements.

Documents marked for the opponent side: