BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 186/2002 Filed on 02.05.2002

Dated : 15.12.2009

Complainant:

E. Firoz, T.C 4/1709(2), Keerthi Lane South End, Opposite Radio Station, Manvila Engineering College P.O, Thiruvananthapuram- 16.

(By adv. M. Abdul Hameed)

Opposite party:

The Proprietor, A.S. Mobile Care, (A unit of Half a Mobile), Kochulloor, Medical College P.O, Thiruvananthapuram.

(By adv. S. Chandra Mohan Nair)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 11.11.2003, the order was not prepared accordingly. This Forum assumed office on 08.02.2008. This O.P having been taken as heard on 07.10.2009, the Forum on 15.12.2009 delivered the following:

ORDER

SMT. BEENAKUMARI.A: MEMBER

Brief facts of the case are as follows: The complainant had entrusted his Nokia 3310 type mobile phone for repair to the opposite party on 06.02.2002 and a receipt for the same had been issued to him. The opposite party assured the complainant that the phone will be returned within a week. But the opposite party till date did not return the phone to the complainant. The complainant made several requests to the opposite party to hand over the repaired phone. All his requests and demands became futile. Hence this complaint.

The opposite party, A.S. Mobile Care filed detailed version contending the entire allegations put forwarded by the complainant. In the version they stated that they had handed over the repaired mobile phone to the complainant without getting back the receipt and repair charge. The complainant had assured that he would search out the receipt and will hand over the same along with the repair charge of Rs. 500/- within 2 days and it was believing the complainant that the mobile phone was handed over to him without receipt and repair charges. But even after a month the complainant did not care to pay the repair charges. At last opposite party contacted the Superior Officer of the complainant and requested him to direct the complainant to pay the service charges to the opposite party. Aggrieved by the act of the opposite party, complainant came to the shop of the opposite party on 02.05.2002 and in the presence of the customers of the opposite party, complainant had abused and threatened the opposite party and it was also told that he would teach the opposite party a lesson for having contacted the Superior Officer for getting the service charges. Thereafter complainant filed a false and vexatious complaint against the opposite party before this Forum. The opposite party further submitted that on getting notice from this Forum, opposite party had made enquiries regarding the mobile phone and came to know that the complainant had given the phone on 02.05.2002 itself to another shop called “Cell Home”situated near the Muthoot Plaza, alleging net work complaint. The copy of the receipt issued to him on 02.05.2002 by Cell Home is produced along with the version. The opposite party submitted that the complainant had approached this Forum with unclean hands and the complaint is false, vexatious and is filed on an experimental basis. Hence they prayed for the dismissal of the complaint with compensatory costs.

In this case the complainant has filed proof affidavit in lieu of chief examination. Nobody has cross examined him. He has produced a document which is marked as Ext. P1. The opposite party has also produced a document as Ext. D1.

Issues that would arise for consideration are:-

1. Whether there has been deficiency in service from the side of opposite party?

2. Whether the complainant is entitled to get the reliefs and costs?

Points (i) & (ii):- To prove his contentions the complainant has filed proof affidavit and produced one document. The document marked as Ext. P1 is the receipt issued by the opposite party at the time of entrusting the phone to the opposite party for repairing i.e on 06.02.2002. Through this document the complainant proved the transaction. The opposite party did not adduce any evidence to show that they had returned the mobile phone to the complainant. The opposite party has produced a document as Ext. D1, the job card issued by the Cell Home in the name of the complainant. In that document, the model No. of the mobile phone is the same number as that of the disputed phone. The contention of the opposite party is that the complainant had given the same phone for repairing to the Cell Home. But the opposite party has not adduced sufficient evidence to support that contention. Hence we find that the allegation put forward by the opposite party is not true. Moreover in this case the affidavit filed by the complainant stands unchallenged. From the above mentioned discussions and available evidence we are of the opinion that the complaint is to be allowed. In this case the complainant has no evidence to prove the price of the mobile phone.

In the result, the opposite party is directed to hand over the mobile phone of the complainant (Nokia Model 3310) to the complainant or to give a same model phone or its price to the complainant. The opposite party shall also pay Rs. 1,000/- as compensation and Rs. 1,000/- as costs. Time for compliance one month from the date of receipt of this order otherwise 12% annual interest shall be paid to the entire amount.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 15^th day of December 2009.

BEENAKUMARI. A : MEMBER

G. SIVAPRASAD : PRESIDENT

jb S.K. SREELA : MEMBER

O.P. No. 186/2002

APPENDIX

I COMPLAINANT'S WITNESS :

NIL

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of Job Card Cum Delivery Note dated 06.02.2002.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT