IN  THE  CONSUMER  DISPUTES  REDRESSAL  FORUM,  KOLLAM

            Dated this the   26^th    day of November 2018

Present: -    Sri. E.M.Muhammed Ibrahim, B.A, LL.M. President

         Sri. M.Praveen Kumar,Bsc, LL.B ,Member

       CC.No.202/17

Krishnakumar                                   :         Complainant

LIC Agent, Nedungottu veedu

Ayanivelikulangara Village

Maruthoorkulangara South

Alumkadavu  P.O

V/s

1. Proprietor                                :         Opposite parties

         Unesco Mobile Bazar

       Valiyathu Plaza

        West of  KSRTC  Bus stand

       Karunagappally

       [By Adv.Shajan Cheriyan John]

2. Branch Manager

          Apps Daily Solution Pvt.Ltd.

         Kavanad, Kollam

3. Manager

         Apps Daily Solution

        Oberoi Garden,6^th Floor

         C Wing,Chandhivali,Andheri

         Mumbai-400072.

FAIR ORDER

E.M.MUHAMMED IBRAHIM , President

 This  is a consumer complaint filed under Section 12 of the Consumer Protection Act.

The averments in the complaint in short are as follows:-

On 31.08.15 the complainant purchased one mobile phone paying Rs.9990/- from the 1^st opposite party shop.  At the time of purchasing the mobile  phone  the  1^st opposite party  realised an amount  of  Rs.599/- from  the

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complainant towards insurance charges,  by making the complainant to believe that in case of theft, loss or not properly functioning the mobile phone the insurance company  will  give a new mobile phone.  However on  27.05.16 while the complainant was travelling in a bike one dog abruptly jumped across the road that he suddenly applied the break of the bike.  Thereupon the mobile phone fell down at the water logged area of the road and thereby the same has become defunct.  On the  next day he went to the 1^st opposite party along with the said mobile phone and explained the circumstances in which the mobile phone has become not working.  Thereupon the 1^st opposite party stated that he used to sell the mobile and all the matters  relating  to  insurance are being done by the  2^nd  opposite party and also directed the complainant to approach the 2^nd opposite party.  Accordingly on 28.05.18 itself he approached the 2^nd opposite party at Kavanadu and explained the circumstances  in which the mobile phone has become defunct.    After hearing the facts the 2^nd opposite party realised an amount of Rs.500/- as processing charge and also received the defective phone  and also made him  to believe that he would transmit the mobile phone and processing charge from the complainant and the 3^rd opposite party  would replace a new mobile phone.  The receipt of the defective mobile phone has been acknowledged by the 3^rd opposite party  by sending a telephonic message to the complainant to another mobile phone used by the complainant and agreeing that they would replace the mobile phone  without delay.  However  as

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the new mobile phone has not been received the complainant sent a mail to the 3^rd opposite party.  He has also contacted the 2^nd opposite party but the 2^nd opposite party has not attended the phone call.  Therefore he rushed to the shop  of the 2^nd  opposite party who has given the mobile number of one Ajith, Eranakulam and also contacted the said Ajith.  Thereafter told the complainant  that the said Ajith will send the new mobile phone to the complainant.  The above conduct of the opposite parties has caused much mental agony apart  from physical and financial loss to the complainant.  Therefore the complainant pray to award compensation to the tune of Rs.50000/- from  the  opposite party. 

In response to the notice opposite party No.1 entered appearance.  Notice to Opposite party 2&3 returned  un served by stating that  opposite party No.2 is not known and opposite party No.3 left. 

Though the 1^st opposite party entered appearance through a lawyer no written version has been filed nor cross examined the complainant and therefore the 1^st opposite party has been declared exparte.  The complainant filed affidavit by re-iterating  the averments in  the complaint and got marked Ext.P1 to P5 documents.  Ext.P1 is the retail invoice/cash bill issued by 1^st opposite party  in favour of the complainant while selling the mobile phone.  Ext.P1 would indicate that the complainant has purchased one mobile phone Oppo Find 5 mini from the 1^st opposite party on 31.08.15 by paying Rs.9990/- in ready cash.  Ext.P2 is the  job sheet issued by the collection centre executive Smt.GopikaV.S

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in the name of the complainant while entrusting the mobile phone.  Ext.P2 is dated 28.05.16 and also would  show that Rs.500/- has been collected from the complainant while accepting the damaged mobile phone from the complainant.  Ext.P3 is the Insurance certificate issued by the 2^nd opposite party which would indicate that Rs.599/- was received towards insurance charges and the validity of the insurance is 1 year from the date of insuring the mobile phone.  Ext.P4 is the courier receipt indicating that the mobile phone has been transmitted to the 3^rd opposite party on 12.08.16.  Ext.P5 is the copy of the lawyer notice issued  by  the  complainant  in  favour  of  the  3^rd  opposite party intimating the fact of sending the mobile phone , ID proof, cheques leaf etc. to the  executive  at  Kollam  and  also  complaining  that  even  after 7  months the complainant has not received any information or status report regarding the mobile phone. 

          The unchallenged averments in the proof  affidavit coupled with Ext.P1 to P5 documents would establish the case of the complainant.  As the mobile phone has been entrusted to the 2^nd opposite party as directed by the 1^st opposite party along with the insurance policies and certificate and that the 1^st opposite party has forwarded the same to the 3^rd opposite party no response has been received by the complainant till date.  It is clear from the available materials that the Opposite party No.1 has sold the mobile phone to the complainant  and also persuaded him to insure the mobile phone and made him to believe that if the  mobile  phone  has  been  lost  or  stolen  away  or  become not working the

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insurance company will  substitute a new mobile phone.  By believing the above representation of the 1^st opposite party the complainant purchased the mobile phone and also taken insurance policy by paying premium.  It is also established that the mobile phone has become defective as it has fallen down and when the matter is intimated opposite party 1 directed to approach the 2^nd opposite party who in turn directed to foreword the mobile phone to 3^rd opposite party.  Accordingly the complainant forwarded the said defective mobile phone to  the 3^rd opposite party through 2^nd opposite party.  But none of the opposite parties has cured the defect nor replaced the mobile phone till date.  In the circumstance it is clear that there is unfair trade practice and deficiency in service  on the party  of the 1^st opposite party and he is liable to replace a new mobile phone or to pay its price and also pay a reasonable compensation to the complainant. 

In the result the complaint stands allowed  in the following terms:-

1. The opposite party No.1 is directed to replace the mobile phone or to pay Rs.9990/- being the price of the defunct mobile phone along with interest @ 6% p.a from the date of complaint till realisation. 
2. The 1^st opposite party is also directed to pay compensation to  the tune of Rs.5000/-  and costs Rs.3000/- to the complainant within 30 days.

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3. If the 1^st opposite party has not complied with  the above direction No.1&2 the complainant is entitled to recover Rs.14990/- with interest @ 9% p.a from the date of complaint till realisation from the 1^st opposite party and his assets along with costs Rs.3000/-

Dictated to the  Confidential Assistant  Smt.Deepa.S transcribed and typed by her corrected by me and pronounced in the  Open Forum on this the  26^th   day of  November 2018.        

E.M.Muhammed Ibrahim:Sd/-

 M.Praveen Kumar:Sd/-

              Forwarded/by Order

             SENIOR SUPERINTENDENT

 INDEX

Witnesses Examined for the Complainant:-Nil

Documents marked for the  complainant

Ext.P1                  :         Copy of Retail invoice

Ext.P2                  :         Job sheet

Ext.P3                  :         Copy of Insurance certificate

Ext.P4                  :         Courier receipt

Ext.P5                  :         Copy of lawyer notice

Witness examined for the opposite party:-Nil

E.M.Muhammed Ibrahim:Sd/-

                                                                                    M.Praveen Kumar:Sd/-

                                                                                     Forwarded/by Order

                                                                                   SENIOR SUPERINTENDENT