DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB    : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Tuesday the 09^th day of January 2023

CC.247/2020

Complainant

Pradeesh. V. V,

Vallikkam Veetil,

Muchukkunnu. P. O,

                        Koyilandy.

Opposite Parties

1.                Proprietor,

Mobile Lab,

Multibrand Authorised Service Centre,

                          2^nd Floor, Darussalam Complex,

IG Road,

Calicut – 673004

Suppl.    2.     Videocon Industries Ltd.,

                      14 km Stone,

                      Aurangabad, Pathan Road,

                      Chetegaon, Aurangabad - 431105

                       Maharashtra.

                       (Suppl. Op 2 impleaded as per order dated 8/8/2023 in  IA 214/2023)

ORDER

By Sri. P.C. PAULACHEN  – PRESIDENT

            This is a complaint filed Under Section 35 of the Consumer Protection Act, 2019

2.  The case of the complainant, in brief, is as follows:

The Cool Pad Note 5 smart phone owned by the complainant was not having backup and hence in January 2020 he approached the first opposite party, which is the authorised service centre. The first opposite party replaced the battery and collected Rs. 950/- towards the price of the battery and also the service charges. Thereafter the complainant noticed that the charge of the battery was suddenly exhausting and when this was brought to the attention of the first opposite party, they stated that the issue might be with the board and agreed to rectify the defect after a few days. Even after 5 days, the defect was not rectified and the phone was not ready for use.After 11 days, the mobile handset was returned to him stating that the issue had been resolved and an amount of Rs. 1,600/- was collected from him. But the problem persisted and he again approached the first opposite party on the next day. The first opposite party stated that the device had to be kept in the service centre for one week and thereafter there was lock down due to Covid-19 pandemic.

3.  On 1.10.2020 he again approached the service centre since the phone was automatically switched off. The first opposite party stated that the battery had to be replaced, for which, Rs. 1,200/- was needed. The complainant then informed the first opposite party that the battery was replaced in January 2020 and it had to be tested whether the battery was original. But the first opposite party was not amenable for that. He was cheated by the first opposite party by supplying a fake battery and refusing to rectify the defects in the mobile handset. He was put to gross mental agony and inconvenience due to the act of the first opposite party. He was constrained to purchase a new smart phone spending Rs.9,000/-.  On 8/10/2020  he had issued a notice to the first opposite party demanding compensation, but the same evoked no response. Hence the complaint for refund of the price of the mobile hand set amounting to Rs. 11,000/-, along with compensation of Rs. 20,000/- .
4. The supplemental second opposite party was impleaded as per order dated 8/8/2023 in IA 214/2023.
5. The first opposite party has resisted the complaint by filing written version. The second opposite party was set ex-parte. According to the first opposite party, the complainant had approached them stating that the mobile handset was not having backup and battery bulged. The warranty for the product had been exhausted by that time. The complaint was promptly attended and replaced the battery and the sub PCBA and the device was taken back by the complainant. After 3 days, he again approached them saying that the battery was having problem. It was found that the initial charging was not done properly and advised the complainant to put the phone in charge for minimum 6 to 8 hours in the off position.
6. The replaced battery is only having 2 months warranty. The complaint about the battery was raised after 5 months. The opposite party suggested for a thorough check up and requested the complainant to entrust the phone with the service centre. But the complainant was not ready for that. They are helpless to replace the battery as it was out of warranty.
7. The first opposite party has stopped the service contract with “cool pad” in March 2019 itself. Thereafter, the service support offered to customers is strictly out of warranty. The complaint is bad for non-joinder of necessary parties as the manufacturer is not impleaded. There is no deficiency of service on their part. None of the reliefs is allowable. With the above contentions, the first opposite party prays for dismissal of the complaint. 
8. The points that arise for determination in this complaint are;

                  1) Whether there was any deficiency of service on the part of the opposite parties, as alleged?

                  2) Reliefs and costs.

9. The evidence consists of the oral evidence of PW1 and Exts A1 and A2 on the side of the complainant. At the time of evidence, the first opposite party also remained absent.  
10. Heard.  
11. Point No 1:    The complainant was examined as PW1. PW1 has filed proof affidavit in terms of the averments in the complaint and in support of the claim. Ext A1 is the copy of the invoice dated 13/01/2020 issued by the first opposite party and Ext A2 is the copy of the notice dated 8/10/2020.
12. The evidence of PW1 stands unchallenged. The supplemental second opposite party has not turned up to file version and to contest the matter. Though the first opposite party has filed written version denying and disputing the allegations and claims made against them, they also chose to remain absent at the time of evidence and PW1 was not cross examined. There is no contra evidence to disprove the case of the complainant regarding deficiency in service. The case of the complainant regarding deficiency of service on the part of the first opposite party stands proved through the testimony of PW1 and Exts A1 and A2 documents.
13. One of the prayers in the complaint is for refund of the price of the mobile handset amounting to Rs. 11,000/-. But it may be noted that the date of purchase of the mobile handset or the period of warranty is not disclosed by the complainant. So it is not known whether the complaint to the device arose during the warranty period. Moreover, there is absolutely nothing to show that the mobile handset is having any inherent manufacturing defect. Even the complainant has no specific allegation in this regard. To establish the claim for replacement of the mobile handset  by a new one or return of the purchase price, the complainant has to prove by cogent, credible and adequate evidence supported by the  opinion of an expert that the mobile handset suffered from any inherent manufacturing defect. The complainant herein has failed to place on record any technical/expert report to show that the mobile handset in question is having any inherent manufacturing defect. In the absence of any such evidence, the prayer for refund of the purchase price cannot be allowed.
14. It is admitted in the written version of the first opposite party that they had stopped the service contract with “Cool Pad”. So on the relevant date, the first opposite party was not the authorised service centre and even then they offered service support to “cool pad” customers.
15. As we have already stated, it has been proved through the unchallenged testimony of PW1 and Exts A1 and A2 that there was deficient service on the part of the first opposite party with regard to the service/repair of the mobile hand set.   There was neglect on the part of the first opposite party to properly address the concerns of the complainant over the mobile handset.   The act of the first opposite party amounts to gross deficiency of service. Undoubtedly, the complainant was put to gross mental agony and inconvenience due to the act of the first opposite party, for which, he is entitled to be compensated adequately by the first opposite party. Considering the entire facts and circumstances, we are of the view that a sum of Rs. 5,000/- will be reasonable compensation in this regard. 
16. Point No. 2:- In the light of the finding on the above point, the complaint is disposed of as follows;

                  a)  CC.247/2020 is allowed in part.

b) The first opposite party is hereby directed to pay a sum of Rs. 5,000/- (Rupees five thousand only) as compensation to the complainant for the deficiency of service on their part. 

  c) The payment as afore stated shall be made within 30 days of the   receipt of copy of this order, failing which, the amount of Rs. 5,000/- shall carry an interest of 6% per annum from the date of this order  till actual payment.

 d) No order as to costs. 

Pronounced in open Commission on this, the  9^th day of January, 2024.

Date of Filing: 03.12.2020 

                              Sd/-                                                             Sd/-                                                               Sd/-

                      PRESIDENT                                                MEMBER                                                       MEMBER

APPENDIX

Exhibits for the Complainant :

Ext.A1 – Copy of the invoice dated 13/01/2020 issued by the first opposite party.

Ext.A2 – Copy of the notice dated 8/10/2020.

Exhibits for the Opposite Party

Nil.

Witnesses for the Complainant

PW1 - Pradeesh. V. V, (Complainant)

                            Sd/-                                                             Sd/-                                                                  Sd/-

                    PRESIDENT                                                MEMBER                                                        MEMBER

True Copy,      

                                                                                                                                                                   Sd/-

                                                                    Assistant Registrar.