SMT. MOLYKUTTY MATHEW : MEMBER

 This is a complaint filed by the complainant U/S 12 of Consumer Protection Act 1986 for an order directing the opposite parties to pay the value of phone Rs.7,600/- to the complainant along with Rs.25,000/- as compensation for mental agony and hardship to the complainant for the deficiency of service and unfair trade practice on their part.

The case of the complainant in brief

            The complainant had purchased a mobile phone LYF wind 7 for an amount of Rs.7,600/- from OP No.1 dated 27/11/2016.  At the time of purchase of the mobile phone 3^rd OP had issued a warranty card to the complainant and assured the warranty that the product has any manufacturing defect for a period of 12 months from the date of its purchase.  The complainant had purchased the mobile phone only on believing the words of OP No.1.  After 2 days of purchase of the mobile phone became defective, ie not charging as it turned switched on.  Charge the phone only when it was switched off.  The complainant had brought the matter to the notice of 1^st OP.  The 1^st OP assured that the defect occurred during the warranty period the manufacturer would replace defective phone with a new one.  On 04/12/2016 the phone became totally in operative and handed over to the 1^st OP.  Thereafter on 08/12/2016 the 1^st OP has informed the complainant that the pin in the socket connecting the phone with charger got damaged and the total cost of repair would come around Rs.4,000/-.  The OP stated the defect occurred due to the negligence on the part of complainant while inserting the charger in the socket, hence the OP No.3 is not replaced the new one.  The act of OPs the complainant caused much mental agony and financial loss. So there is deficiency of service and unfair trade practice on the part of OPs.  Hence the complaint.

            After filing complaint notice issued to all parties.  All OPs appeared before the commission and OP 2 and 3 filed their written version.  OP No.1 has not filed version and OP1 called absent and set ex-parte.  OP No.2 & 3 contended that the charging USB Jack of the product was damaged and the printed circuit Board (PCB) of the mobile phone was short and the said damage to the product was customer induced damage.  The mobile phone was found in customer induced damage state, it was warranty void as per clause 5 of the terms and conditions of warranty extended with the product and OP No.2 give estimate of repair to complainant’s son.  After inspection and verification of the mobile phone OP 2 stated that the product is “dead, diode missing near charging connection, found external repair and noted.  Then the job sheet which was signed by complainant’s son.  The improper use of the mobile phone is not come under the warranty condition.  Moreover the complainant has not take steps to produce the mobile phone before any expert commissioner. No expert report is also produced in this case.  OP No.3 is not a manufacturer.  So there is no deficiency in service on the part of the OP No.2&3.  So the complaint may be dismissed.

            On the basis of the rival contentions by the pleadings the following issues were framed for consideration.

1. Whether there is any deficiency of service on the part of OPs?
2. Whether the complainant is entitled for any relief?
3. Relief and cost?      

The evidence consists of the oral testimony of Pw1 and Ext. A1 to A3and MO1 marked.  On OP’s side OP No.2 is examined as Dw1 and Ext.B1 to B4 marked.  Both side submitted argument notes also.

Issue No.1

The complainant adduced evidence before the commission by submitting his chief affidavit in lieu of his chief examination to the tune of the pleadings in the complaint and denying the contentions in the version. He was cross examined as Pw1 by the OPNo.2& 3.  Pw1 relied upon Ext.A1 to A3 documents to substantiate his case. According to him the complainant had purchased a mobile phone LYF wind 7 on 27/11/2016 for an amount of Rs.7,600/- from OP No.1 and shows  Ext.A1 documents.  In Ext.A2 is the job sheet and symptoms noted as “smart phone dead” Ext.A3 is the warranty card on 04/12/2016 within the warranty period itself the phone became defective and on 08/12/2016 the OP No.1 informed the matter to complainant that the pin in the socket connecting the phone to the charger got damaged and the repair cost will be around Rs.4,000/-.  But OP 2 and  3 contended that actually the mobile phone was purchased by son of Pw1 and he improperly and forcefully inserted the charger in to the socket of the mobile phone, when forcefully pushed into the charger, the diode of the same was damaged. As per Ext.A1 document the version of OP2 is not correct.  The MO1 purchased by the complainant itself.  The other contention put forwarded by the OP No.2&3 is that the MO1 is not sent for expert’s opinion.  The mobile phone became damaged and the complainant produced the MO1 before the commission and expert panel is also produced.  But both sides not taken the steps to obtained an expert opinion.  In examination of Dw1 who deposed that after the inspection and verification of product OP NO.2 noticed that the charging USB jack of product was damaged and printed circuit board (PCB) was short and the damage to the product was customer induced damage.  The OP has not examined the service personnel who reported that the damage has been caused due to improper use.  The burden of proof of such defense shall lie on the person raising such a defense.  In evidence Pw1 stated that Ext.A2 and A3 യിൽ ഒപ്പിട്ടത് എെൻറ മകനാണ്. 22/12/2016 നാണ് OP യുടെ അടുത്ത് ഹാജരാക്കിയതെന്നുപറഞ്ഞാൽ? ഞാൻ 04/12/2016 ന് വാങ്ങിയ കടയിൽ ഹാജരാക്കിയിരുന്നു.  22/12/2016 െൻറ (Ext.A2) രേഖയിലാണ് അക്ഷയ് ഒപ്പിട്ടത്.  In evidence of Dw1 also stated that “സാധാരണ ഗതിയിൽ Guarantee period ൽ എന്തെങ്കിലും Damage സംഭവിച്ചാൽ ആ Product manufacturer repair ചെയ്തുകൊടുക്കാറുണ്ട്? ഉണ്ട് Consumer  induced damage ആണ് എന്ന് Service person ആണ് കണ്ടത്.  ആയതിനെകുറിച്ച് നിങ്ങൾക്ക് എന്തെങ്കിലും അറിയുമോ? ഇല്ല.  AS per Ext.B1 to B4 produced by OP NO.2 which clearly shows that the customer information slip is issued in favour of complainant’s son, Akshay C.V.  Moreover Dw1 stated that the son of Pw1 refused to repair the product.  But the OP has not examined the service personnel who reported the damage has been caused due to improper use.  Now the complainant produce the MO1 before the commission.  So the act of OP’s the complainant caused much mental agony and financial loss.  There is deficiency of service and unfair trade practice on the part of OPs.  Hence the issue No.1 found in favour of the complainant and answered accordingly.

Issue No.2 &3

            As discussed above the OPs are not ready to refund the value of mobile phone to the complainant.  The complainant produced Ext.A1 document which clearly shows that the complainant had paid Rs.7,600/- to OP No.1 dated 27/11/2016.  According to the complainant after 2 days of the purchase of the mobile phone is not charging and the same is switched off.  But the OPs   are not curing the defect within the warranty period.  According to the complainant failure to refund the value  of mobile phone the OP’s are directly bound to redressal the grievance caused to the complainant.  Therefore we hold that the OPs are    jointly & severally liable to refund the valued of mobile phone as amount of Rs.7,600/-  to the complainant along with Rs.5,000/- as compensation and Rs.3,000/- as litigation cost.  Thus the issue No.2 &3 are also accordingly answered.

            In the result the complaint is allowed in part directing the opposite parties 1 to 3 jointly and severally liable to pay the value of mobile phone Rs.7,600/- to the complainant along with  Rs. 5,000/- as compensation for mental agony of the complainant and Rs.3,000/- as litigation cost within 30 days of receipt of this order.  In default the amount of Rs. 7,600/- carries 12% interest per annum from the date of order till realization.  Failing which the complainant is at liberty to execute the order as per the provisions of Consumer Protection Act 2019.  After the said proceedings the opposite parties are at liberty to take back the mobile phone (MO1) before the commission.

Exts.

A1- Cash bill dated 27/11/2016

A2- Job sheet

A3-Warranty card

MO1-Mobile phone

B1-Customer information  slipt dated 07/12/2016

B2-Customer information  slipt dated 22/12/2016

B3- Job sheet dated 07/12/2016

B4- Job sheet dated 07/12/2016

      Sd/                                                                          Sd/                                                     Sd/

PRESIDENT                                                                   MEMBER                                                   MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

(mnp)

/Forward by order/

Assistant Registrar