O R D E R

By Sri. K. Gheevarghese, President:

The complaint filed under section 12 of the Consumer Protection Act.1986.

The Complainant filed this complaint alleging the manufacturing defect of the Mobile Phone Hand Set in the brand Nokia 5500.

2. The sum up of the complaint is as follows:- The Complainant was attracted by the advertisements of the Opposite Party on the quality and effectiveness of the hand set. A few days after the purchase, the set found to be defective. The Complainant contacted the Opposite Party to rectify the defects. The request of the Complainant for repairing the hand set was not responded positively. More over the 1^st Opposite Party the seller of hand set was not ready to supply an another hand set for the use in substitute of the defective one. The sale of the defective hand set to the Complainant is an unfair trade practice on the part of the Opposite Parties. There may be an order directing the Opposite Party:-

1. To refund the cost of the hand set or to replace a new hand set which functions properly

2. And compensation of Rs.20,000/- is also to be paid to the Complainant.

3. The 1^st Opposite Party filed version. The allegation of the Complainant is that the purchase of the hand set was guided by the advertisement of the Opposite Party. The 1^st Opposite Party inform the Complainant that if any defect in manufacture for the hand set it is to be sent to the authorised service centre or the set is to be entrusted to the 1^st Opposite Party for sending it to the Authorised Service Centre. The set is defective in manufacture. It is to be repaired by the manufacture. The hand set purchased by the Complainant was not a defective one as alleged in the complaint. There is no unfair trade practice on the part of the Opposite Parties. The 1^st Opposite Party is not an authorised service centre of Nokia. If any defect in manufacture as alleged in the complaint the manufacture is a necessary party and the complaint is bad for non jointer of necessary party. The complaint is to be dismissed with the compensatory cost to the Opposite Party.

4. The 2^nd Opposite Party is arrayed as a party subsequent to the version and 2^nd Opposite Party is declared exparte on refusal of the notice.

5. The points in consideration are:-

1. Whether any deficiency in service or any unfair trade practice on the part of the Opposite Parties?

2. Relief and cost.

6. Points No.1 and 2:- The evidence in this case consists of the proof affidavit of the Complainant Ext.A1, A2 and MO1 to MO3. The 1^st Opposite Party along with the Complainant filed a joint statement that the 1^st Opposite party is ready to substitute the hand set if provided by the 2^nd Opposite Party. The 1^st Opposite Party has no contention that the hand set is free from any defect. Ext.A1 is the cash bill dated 28.01.2009 issued by the 1^st Opposite party. The price of the hand set is Rs.19,507/- including tax. Ext.A2 is the users manual guide issued to the Complainant at the time of purchase. The repair for the replacing of the hand set if necessitated it is to be done by an authorised centre of the manufacture, the 2^nd Opposite Party who is already declared exparte in this case. We are in the opinion that the hand set sold to the Complainant cannot be considered free from any manufacture defect unless the contrary is proved. The hand set is found to be defective and that is in the warranty period. The 2^nd Opposite Party has to replace the hand set of the same brand and type to the Complainant taking back the defective one. In the absence of it the cost of hand set Rs.19,507/- is to be refunded to the Complainant by the 2^nd Opposite Party. The 1^st and 2^nd Opposite Parties are also liable for payment of the cost of Rs.1,000/- to the Complainant.

In the result, the complaint is partly allowed. The 2^nd Opposite Party is directed to replace hand set of the same brand and type to the Complainant through the 1^st Opposite party receiving back the defective one. The cost of this complaint Rs.1,000/- (Rupees One thousand only) is also to be paid to the Complainant by the 1^st and 2^nd Opposite Parties. This is to be complied within one month from the date of receiving this order.

Pronounced in open Forum on this the day of 27^th February 2010.

PRESIDENT: Sd/-

MEMBER : Sd/-

MEMBER : Sd/-

A P P E N D I X

Witness for the Complainant:

Nil.

Witness for the Opposite Party:

Nil.

Exhibits for the Complainant:

A1. Cash Bill. dt:28.01.2009.

A2. User Guide.

MO1 Mobile Phone Hand Set.

MO2 Mobile Phone Charger.

MO3. Wire connected to Television.

Exhibits for the Opposite Party:

Nil.