SMT.MOLYKUTTY MATHEW : MEMBER

     This is a  complaint filed U/S 12 of the Consumer Protection Act 1986 for an order directing the opposite party  to repair the  mobile phone and  return  to the complainant with free cost along with  compensation and cost   for  the deficiency of service on his part.

  The case of the complainant in brief :

      The complainant  had purchased Nokiya   mobile phone IMEI/SI No.35311085263531 worth Rs. 4700/- on July 2018  from  the opposite party. The company has offered one year warranty to the mobile  from the date of purchase.  Thereafter the mobile  became defective on 28/11/2018 the complainant informed the matter to  the OP and entrusted the mobile phone  to OP  for repair.  Then the OP  repaired and delivered the phone to  complainant  after collecting service charge and spare  for Rs.1200/- on 5/12/2018 from the complainant.  The complainant stored valuable photos and other datas inside the mobile phone that was completely damaged and the complainant was compelled to take other photos by  travelling different places like Mananthavadi, Sulthanbatheri, Perambra, Kanhangad etc. by spending the  complainant’s valuable time and money.  After repairing the mobile phone, again  the mobile phone  has touch complaint and complainant cannot use the  phone.  Thereafter the complainant entrusted the mobile phone for repair to OP.  Then the complainant has approached  several times to OP for collecting the mobile phone from OP’s shop.  But the OP is not ready  and willing to give the phone  to complainant even after  collecting   huge  service charge from the complainant.  Moreover the OP’s staff have scolded the complainant in  filthy language and threatened  to him.  The OP is not returned  the  phone to the complainant till now.    Then the complainant was forced to purchase another mobile phone at the  cost of Rs.1700/- on 3/12/2018.  The Op’s adamant  attitude towards the complainant due to the  deficiency of service.  The Op  bound to repair the mobile  phone  at free of  cost to the complainant during the  subsistence of the one year warranty period.  Then the complainant send a lawyer notice  to the OP on 15/1/2019.  The Op received the notice and  no reply send to the complainant.    So there is deficiency of service  and unfair trade practice on the  part of opposite party .   Hence the complaint.

      After filing the complaint, notice was issued to the opposite party.  Opposite party  received the  notice and not  appeared  before the Commission and not  filed any  version.  Ultimately the Commission had to hold that the  opposite party  have no version as such in  this case came to be proceed against the  opposite party as  exparte.

    Eventhough the opposite party has remained ex-parte, it is for the complainant to establish the allegation made by him against the  opposite party.  Hence the  complainant was called upon to produce evidence in the form of  affidavit and  documents.   Accordingly the complainant has chosen to  produced his affidavit along with 5 documents marking them Ext.A1to A5 and complainant was examined as PW1.  So the  opposite party remain absent in this case.  At the end the commission  heard the case on merit.

       Let  us have a clear glance at the  relevant documents  of the  complainant.  Ext.A1 is the lawyer  notice send by the complainant  to OP to repair the mobile phone and returned  to the complainant.  But the OP received the notice and no reply send to the complainant.  Ext.A2 is the postal receipt and Ext.A3 is the acknowledgment card.  Ext.A4  shows that the complainant was forced to  purchase a new mobile phone dated 3/12/2018 worth Rs.1700/-.  In Ext.A5 tax invoice dt.28/11/2018 shows that the service charge Rs.1200/- paid to the OP for the repair of the  mobile phone.  According to the complainant  the mobile phone  was purchased in the month of July 2018 and the  mobile phone damaged on 28/11/2018.  The  complainant produced phone before the OP  and paid service charge  Rs.1200/- clearly shows in Ext.A5.  So the opposite party is bound  either  to repair the mobile phone or to  refund the  price of the  mobile phone. Since the OP denied to repair  the mobile phone. There is deficiency  of service on the part of the opposite party. Under this circumstances, we are of the  considered view that the opposite party  is directly  bound to redress the grievance caused to the complainant.   It is an evident before the commission that the complainant  was forced to purchase  another  brand new  phone due to the deficiency of  service on the part of the OP.  Therefore we hold that the  opposite party  to repair the mobile phone at free of cost and  returned to the  complainant or refund the value of  mobile  phone  Rs.4700/- along with  Rs.3000/- as compensation and Rs.2000/- as litigation cost.

            In the result, the complaint is allowed in part directing the opposite party  to repair the mobile phone at free of cost and  returned to the  complainant or refund the value of  mobile  phone  Rs.4700/- along with  Rs.3000/- as compensation and Rs.2000/- as litigation cost  within  30 days from the date of  receipt  of this order,   failing which the   complainant is at liberty to  execute  the  order as  per the  provisions  of Consumer Protection Act 2019.  

Exts:

A1-  lawyer notice

A2-Postal receipt

A3- Acknowledgment

A4- Tax invoice

A5- service  charge invoice.

PW1- T.Karunakaran Nambiar-complainant

PRESIDENT                                               MEMBER                                                        MEMBER

Ravi Susha                      Molykutty Mathew.                            Sajeesh K.P

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