CONSUMER DISPUTES REDRESSAL FORUM, PALAKKAD
Dated this the 15th day of June, 2016
PRESENT : SMT. SHINY.P.R, PRESIDENT
: SMT. SUMA. K.P, MEMBER Date of filing: 6/11/2015
: SRI.V.P.ANANTHA NARAYANAN
CC /164/2015
Ponnuswamy.A : Complainant
S/o.Ayyappa Reddiar, 157/1,
North Street, Thurayoor Post,
Kovilppatti, Tthoothukudi – 678 720
(By Adv.A.Nijamudin)
Vs
Proprietor,
Palakkad Mobiles,
Near Josco Jwellery,
G.B Road, Palakkad : Opposite party
(By Adv.P.K.Anitha)
O R D E R
By Sri. V.P.Anantha Narayanan, Member,
Brief facts of the case:- The complainant purchased “Samsung Galaxy-9003” mobile on 12/10/2014 and “Micromax” mobile on 15/10/2014 from opposite party. For the 2nd mobile purchased no bill was given. “Galaxy 9003” mobile could not be used from the date of purchase. According to the complainant the fact of the mobile having become out of order was informed to opposite party several times. But the opposite party did not either replace the mobile or repair it. On 25/08/2015 opposite party took from him Rs.1,000/- by way of service charge. The complainant appeals that he is a physically disabled person having 70% hearing incapacity. He is a native of Thoothukudi in Tamilnadu. In order to get his mobile phone repaired, he had to came to Palakkad several times and spend a large amount of money for that purpose. Being a differently abled person with 70% disability he found it very difficult physically to come to Palakkad and return from there. Hence he appeals to take back the mobile phones purchased from opposite party and pay him the price of “Samsung Galaxy GTI - 9003” Rs.6000/- and the price of “Micromax” Rs.1,800/-. Besides, he appeals to the Forum to order the opposite party to pay him back Rs.1,000/- service charge taken by the opposite party from him, to give Rs.8,000/- towards his transportation expenses and Rs.30,000/- for physical and mental agony and Rs.5,000/- by way of litigation expenses.
The complaint was admitted and notice was issued to opposite party to file their version. The opposite party in their version contended the following:
According to opposite party, the complaint was not maintainable and the complainant was not entitled to get any compensation through his complaint against the opposite party. The statements made in the complaint were false and hence denied by opposite party.
The statements made by the complainant in his complaint that on 12/10/2014 he purchased from opposite party a mobile phone “Samsung Galaxy GTI 9003” was admitted by opposite party, but that from the date of purchase, he could not use the mobile, that the mobile was out of order, that the matter was informed to opposite party several times, that opposite party was not prepared to replace or repair the mobile phone, that for this purpose, the complainant travelled many a time from Thoothukudy to Palakkad were denied by the opposite party. According to opposite party, these statements were included in the complaint but were subject to proof. Actually the complainant was working in Aryas hotel, which is located near to opposite party’s mobile shop. He purchased from the opposite party on 12/10/2014 “Samsung Galaxy GTI 9003” model second hand mobile with head set, memory card and charger for Rs.6,000/-. He purchased the mobile only after being satisfied with its working condition. After 6 months, the complainant approached the opposite party, stating that the mobile became out of order as it had fallen down, the mike of the mobile was not working and the strip got damaged. The opposite party agreed to set right the mobile for Rs.1,400/- and the complainant handed to opposite party the mobile for repair and service. Opposite party contended that after changing the strip, returned the mobile phone on 15/05/2015. But the complainant paid Rs.400/- and agreed to pay the balance Rs.1,000/- within a week. Believing words of the complainant the opposite party returned the mobile phone after service, but the complainant did not pay the balance amount inspite of contacting the complainant directly and over phone.
Finally on 20/10/2015 the opposite party contacted the complainant to get the amount due from him and on the failure on the part of the latter opposite party informed the complainant to take legal action against him. Then the complainant agreed to pay the balance amount next day itself. But the complainant did not pay the amount. According to opposite party it is suspected that the complainant has mal intention not to pay the amount and willfully cause difficulties to the opposite party. Hence, opposite party’s prayer to the Forum is to dismiss the complaint. Further the opposite party contends that second hand purchase will not came within the purview of the Consumer Protection Act, 1986. Therefore, the complainant is not entitled to get any benefit as a consumer. For mobiles purchased by the complainant no warranties are given by the opposite party.
Hence the opposite party prays to the Forum that opposite party’s version may be accepted and the complaint filed by the complainant may be dismissed.
From the side of the complainant Ext.A1 was marked and from the part of opposite party Ext.B1 was marked. The complainant was cross examined as PW1, Samsung mobile was marked MO1 and Micromax mobile was MO2.
Both parties heard.
The following issues arise in this case.
- Whether there is any deficiency in service on the part of opposite
Party?
- If so, what is the relief?
ISSUES 1 & 2
The complainant purchased “Samsung GTI 9003” from the opposite party for Rs.6000/- on 12/10/2014 vide Ext.A1 and “Micromax” mobile on 15/10/2014 for which no bill was given. The complainant while cross examining him mentioned that for the 1st mobile purchased by him no warranty was given but only bill was given . Along with the mobile charger and memory card were also given to the complainant. The complainant pleads that inspite of repeated complaint to the opposite party regarding the non working condition of the 1st mobile purchased from opposite party, the opposite party did not repair the mobile phone on 25/08/2015. He paid the opposite party Rs.1,000/- by way of service charge. But according to opposite party only Rs.400/- was paid to opposite party by way of service charge vide Ext.B1, out of which Rs.100/- was paid to complainant on his request to meet travelling expenses. Since he is native of Tuticorn in Tamilnadu he had to came to Palakkad several times for getting the mobile repaired by opposite party. Hence his plea to the Forum either to take back the mobile phone and pay him Rs.6000/- along with a service charge of Rs.1,000/-, travelling expense of Rs.8,000/-, compensation for mental agony Rs.25,000/- and litigation expense of Rs.5,000/-.
But from the part of opposite party it is contended that after 6 months of the purchase of the “Samsung Galaxy GTI 9003”, the complainant approached the opposite party and stated that the mobile got complaint due to fall and it was shown to a service center where he was informed about the damage caused to the strip which would cost him Rs.2,800/- for repair . Hence, he approached opposite party to get it repaired for a lesser amount and got the strip replaced for Rs.1400/-. But the complainant paid only Rs.400/- and asked time for the payment of the balance, he had also taken Rs.100/- from opposite party for meeting his travelling expenses . Since the complainant did not pay the balance amount after 6 months, opposite party informed the complainant about taking steps against the latter. Then only complainant made the complaint to the Forum to avoid the payment of the balance amount and harass the opposite party. The opposite party further contends that regarding the second mobile phone “Micromax Mobile” purchased by the complainant no complaint was made by him. During his cross examination and those given in the complaint and affidavit the statements of the complainant are contradictory. The actual service charge for the first mobile phone was Rs.1,400/- but the complainant paid only Rs.400/- and the balance is yet to be paid. He did not mention the exact defect of the mobile except that after the fall, the mike of the mobile was not working and the strip got damaged. The complainant has neither narrated the defect of the 1st mobile nor proved its defect. The complainant has not taken necessary steps to find its defect from a recognized institution. Regarding 2nd mobile purchased he has not made any complaint. Since second mobile set was not sold by the opposite party, no bill was issued for it.
On the basis of the above we observe the following
- The mobile phone purchased by the complainant was without any warranty the complainant had to face the risk of no warranty.
- The Samsung mobile phone entrusted with the opposite party for repair was returned to the complainant after replacement of the strip which was damaged due to falling of the mobile phone which was mentioned by the complainant.
Since the complainant mentioned in his affidavit that he was 70% deaf and during his cross examination he did not know that the mobile was second hand and the new mobile set would cost Rs.12,000/- his complaint is partly allowed. Further, in dealing with a deaf person, he should be fully convinced by the opposite party, that the mobile purchased by him is a second hand with no warranty and hence, we find that there is a small negligence on the part of opposite party and to that extent there is deficiency in service on the part of opposite party.
Hence we order that the Samsung mobile purchased by the complainant should be repaired thoroughly by the opposite party free of cost. The compensation claimed by the complainant for travelling expenses incurred by him cannot be allowed due to absence of proof. If the opposite party fails to repair the mobile within one month from the date of receipt of this order, a compensation of Rs.3,000/- (Rupees Three thousand only) should be paid to the complainant in addition to payment of litigation expenses of Rs.500/- (Rupees Five hundred only).
Order shall be complied within one month from the date of the order failing which interest at 9% per annum should also be paid as the amount due to the complainant.
Pronounced in the open court on this the 15th day of June, 2016.
Sd/-
Shiny.P.R
President
Sd/-
Suma. K.P
Member
Sd/-
V.P.Anantha Narayanan Member
A P P E N D I X
Exhibits marked on the side of complainant
Ext.A1- Original bill of Rs.6,000/-dtd. 12/10/2014
MO1-Samsung Mobile with charger
MO2-Micromax mobile with charger and headset
Witness marked on the side of complainant
PW1-A.Ponnuswamy
Exhibits marked on the side of opposite party
Ext.B1- Carbon copy of bill dtd.15/05/2015
Witness examined on the side of opposite parties
Nil
Cost Allowed
No cost.
