SRI.R. VIJAYAKUMAR, MEMBER.

            The complaint is filed for return of repaired  mobile or for getting Rs.10,000/ as value of the same, compensation Rs.5000/- and cost.

          The averments in the complaint can be briefly summarized as follows:

The complainant had entrusted  the first opp.party a Sony Ericson Mobile Phone  for repairing on 17.1.2007 and paid an amount of Rs.700/- as repairing charges.  On demand of the repaired mobile phone, the 1^st opp.party told  the complainant that since the mechanic was on leave the mobile phone will be sent to the complainant through Professional Courier on the following day. But the mobile phone  was not received by the complainant on the following day.   On  enquiry the 1^st opp.party replied that the mobile phone sent through Professional Courier Service to the address of complainant’s company, Kerala Steels, Elampalloor, Kundara, Kollam vide booking No.158790098. complainant  wanted for delivery of  the mobile phone.  But he was not served with the repaired mobile phone.  On 30.1.2007  complainant sent registered notice to the opp.parties calling  upon the return of the repaired mobile phone or for payment of Rs.10,000/- as the value of mobile phone compensation and cost.  But the notice  sent to 1st opp.party was returned stating ‘unclaimed’ and 2^nd opp.party received the notice on 1.2.2002.   The act of the opp.parties amounts to deficiency in service and unfair trade practice.  Hence the complaint.

The 1^st opp.party filed version stating that the complaint is not maintainable either in law or on facts.   The complainant brought an old mobile phone for repairing on 17.1.2007.   The complainant expressed  his inability to come back the next day as he was working at Kollam and   sent the  instructed to repaired mobile phone through profession courier.   As per the  instruction,  the office staff  namely sherin sent the mobile phone through 2^nd opp.party.   The allegation that the phone worth Rs.10000/- is false  and hence denied.   The said phone costs only below Rs.5000/- .  The 1^st opp.party is not responsible for any loss if at all sustained by the complainant. There is no cause of action against the 1^st opp.party, no deficiency in service on the part of opp.party and hence the complaint is liable to be dismissed.

The 2^nd opp.party filed version contenting that the complaint is not maintainable either in law or on facts.  The complaint has not disclosed the branch where he booked in consignment.   The complainant ought to have been filed before the Forum where the consignment was  booked and handed over.   So the complaint is bad for nonjoinder of necessary parties.  There is no consumer relationship between the complainant and 2^nd opp.party.

The allegation of the complainant that the 1^st opp.party had sent a Sony Ericson Mobile Phone  Model  No.K.500 I, through professional courier itself is disputed by the 2^nd opp.party because mobile phones are   prohibited from sending through  courier.  The complainant and 1^st opp.party joined in collusion to make unlawful gain against 2^nd opp.party.  The liability of receiving station to deliver the consignment to the consignee arises only when the consignment reaches the office of 2^nd opp.party.  No such consignment as alleged reached in the office of the 2^nd opp.party.  In the case the consignment lost in transit also the booking station is liable.

          The allegation in para 3 of complaint that the complainant informed about non delivery of consignment and 2^nd opp.party replied that the mobile sent by 1^st opp.party as per booking No.15879098  showed in the incoming list of 2^nd opp.party is not correct.   The 2^nd opp.party is incorporated in this case only to  attract territorial jurisdiction.   The complaint is vexatious and deserves dismissal with cost.

The complainant filed affidavit

The complainant was examined as PW.1

From the side of opp.parties DW.1 examined

Heard both sides.

The points that would arise for consideration are:

1.Whether there is any deficiency in service on the part of opp.party

2. Compensation and cost.

Points 1

It is  admitted by 1^st opp.party that a Sony Ericson Mobile Phone Model No.K 500 I was brought by the complainant to the 1^st opp.party.   The 1^st opp.party is claiming that the repaired mobile phone was sent by them through Professional courier service, the 2^nd opp.party .  The complainant has stated that  on enquiry , he was informed by the 2^nd opp.party that the said mobile phone was sent by 1^st opp.party as per booking No.15879098 shows in the incoming list of 2^nd opp.party and so far the complainant has not received the same.   The 2^nd opp.party denied the allegation that the incoming list of 2^nd opp.party confirm the sending of mobile phone as per booking No.15879098.   The learned counsel for 2^nd opp.party had argued that the allegation is absolutely false.  The 1^st opp.party is admitting the receipt of mobile phone and repairing charges.

Even though the 1^st opp.party has stated  in their version that the mobile phone  was sent  through Professional courier by one of their staff namely Sherin, they have not produced any sufficient document to prove this statement.  No booking receipt was produced by the 1^st opp.party.  It is the duty of the 1^st opp.party to send mobile phone as they agreed to the complainant and to ensure that the consignment reached in the address to which it was sent.  But in this case we  find that the 1^st opp.party is trying to wash  hands and to evade from  liability. We have perused the documents.  We are of the opinion that there is deficiency in service on the part of the  1^st opp.party.

Point No.2

The quantum of compensation to be decided on the basis of the value of mobile phone and the mental agony and financial loss sustained to the complainant.   Even though  the complainant has stated that the prize  of the said mobile phone   was Rs.10,000/-, he has not produced the purchase bill of the mobile phone or any other  evidence to prove that the  actual price of mobile  phone is Rs.10,000/-.  The 2^nd opp.party contended that the allegation that the mobile phone worth is Rs.10,000/- is false.   But according to him the phone cost below Rs.5000/- .  The price of mobile phone can be calculated as per this admission of opp.party 2  and leased on  the feet that the said mobile is an old one.

In the result the complaint is allowed in part.   The 1^st opp.party is directed to pay Rs.4500/- as the price of the mobile phone along with compensation Rs.2,000/- .   The 1^st opp.party is further directed to pay the cost of Rs.1500/-. 

The order is to be complied with within one month of the date of receipt of the order.

Dated this the  30^th      day of April, 2010.

                                                                                    I N D E X

List of witnesses for the complainant

PW.1. – Cash receipt dt. 17.7.2007

P2. – Copy of legal notice

P3. – Postal acknowledgement dt. 30.1.2007

P4. -  Postal acknowledgment dt. 30.1.07 for letter to Branch Manager

P5. – Acknowledgement card from Branch Manager

P6. – Acknowledgement car

List of witnesses for the opp.party

DW.1. – Nikhil

List of documents for the opp.party: NIL