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. 433/2002

Dated : 31.03.2009

Complainant:

V.G. Prabhakaran Nair, Suprabha, Perumulloor, Ooruttambalam P.O, Thiruvananthapuram – 695 507.

Opposite parties:

1. Regional Manager, Escotel Smart Phone Service, Regional Office, 4^th Floor, Mercy Estate, Ravipuram, Kochi-682 015.

    

(By adv. B. Vijayakumar)

Addl. Complainants :

2. Manager, One 2 One Communications, ESCOTEL, Sasthamangalam P.O, Thiruvananthapuram-10.

    

3. Binu Michael, One 2 One Communications, Sasthamangalam P.O, Thiruvananthapuram-10.

(By adv. Philipose John)

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 21.12.2004, the order was not prepared accordingly. This Forum assumed office on 08.02.2008 and re-heard the complaint. This O.P having been heard on 28.03.2009, the Forum on 31.03.2009 delivered the following:

ORDER

SMT. S.K.SREELA : MEMBER

The case of the complainant is as follows: The complainant had purchased a new mobile hand set on 19.09.2001 from One 2 One Communications by paying an amount of Rs. 5,909/-. On 20.12.2001, the set was handed over to the Sasthamangalam Office as the same was not working for which a receipt was also issued. But they never returned the same saying that it has been sent to Ernakulam for repair and it has not been returned yet. Hence this complaint.

Opposite parties have filed separate versions. 3^rd opposite party remains exparte.

1^st opposite party has filed their version contending that the opposite party has not received any hand set from the complainant till date and the complainant has not handed over any handset to the opposite party for any purpose. This opposite party has only mobile phone service. Escotel provides only service facilities, for providing the service of the opposite party any handset can be used and the opposite party does not insist any consumer for any particular handset. The complainant has approached this Forum without clean hands and hence prays for dismissal of the complaint.

The additional 2^nd opposite party has filed their version contending that the manufacturer of the mobile phone is Ericsson and the manufacturer who is a necessary party has not been impleaded. This opposite party is only a dealer of the 1^st opposite party. Hence this opposite party is an unnecessary party. Moreover the complainant has neither made any complaint against this opposite party nor has he sought any relief against this opposite party. He has not proved the defects of the instrument as provided in Consumer Protection Act. The mobile phone was received by this opposite party for and on behalf of the 1^st opposite party, and the same was handed over to the 1^st opposite party vide acknowledgement receipt dated 21.12.2001. The 1^st opposite party informed that the instruments cannot be repaired as per warranty, as the instrument is waterlogged. This information was passed on to the complainant. But the complainant insisted on getting the instrument replaced or repaired without making any payment. And with oblique motive he did not take back the instrument. This opposite party is not aware of the physical condition of the complainant. If at all the complainant has suffered any loss it is due to the misuse of the instrument by himself. He cannot benefit from injury perpetrated by himself. The complainant has no cause of action against this opposite party. Hence prays for dismissal of the complaint.

On the contentions raised, the following issues arises for consideration:-

1. Whether there is any deficiency in service on the part of the opposite parties?

2. Whether the complainant is entitled for any of the reliefs claimed?

Points (i) & (ii):- The allegation of the complainant is that he had entrusted his mobile phone handset to One 2 One Communications at Sasthamangalam for which Ext. P2 has been issued. Ext. P1 reveals the purchase of a handset for Rs. 5,909/- by the complainant from the 1^st opposite party. Ext. P2 is the receipt dated 20.12.2001 proving the acceptance of the said handset by One 2 One communications. Ext. P1 has been marked subject to proof. At this juncture, the aspect to be looked into is whether the complainant has handed over the handset to the opposite parties as alleged. In the version filed by the 1^st opposite party dated 26.03.2003, the 1^st opposite party has totally denied the allegations in the complaint and he has further contended that the complainant has not handed over the handset to them for any purpose. But the 2^nd opposite party has admitted in their version dated 27.02.2004 that the mobile phone was received by them for and on behalf of the 1^st opposite party and the same was handed over to the 1^st opposite party vide acknowledgement dated 21.12.2001 which has been marked as Ext. D1 subject to proof. Ext. D1 is the acknowledgement receipt issued by the 1^st opposite party dated 21.12.2001 regarding the receipt of the handset in dispute. The interesting aspect is that, after the filing of the version by the 2^nd opposite party, the 1^st opposite party has filed a memo stating that after impleading the additional opposite parties, the dealer has handed over the handset to the 1^st opposite party and it is with the 1^st opposite party which cannot be repaired because it was damaged due to water affected damage. If at all the above contentions in the memo is to be taken into consideration, why the 1^st opposite party has not produced any document corroborating the receipt of the handset by them only after impleading additional opposite parties. Moreover, when the only contention in the version of the 1^st opposite party is with regard to the non-receipt of the handset, then the contention that the acceptance of the handset, at a later stage, after the filing of version and pending dispute that too without any receipt is unbelievable. The 1^st opposite party cannot blow hot and cold at the same time. Taking the above discussed facts and circumstances into consideration we find that the allegation in the complaint with regard to the entrustment of the handset to the opposite parties has been proved and established beyond any doubt.

The mobile handset purchased on 19.09.2001, has been entrusted for repairing on 20.12.2001, which is within a period of 3 months from the date of purchase. Moreover, the handset is with the opposite parties. In such a situation, it has been held by the Apex court in MRF Ltd. Vs. Jagdish Lal 1999(4) SCC 315 that, no fault can be found with District Forum or State Fora or the National Commission in the matter of not following the procedure under Sec. 13(1)(c) of the Consumer Protection Act. The said procedure was not capable of being followed as the handset is with the opposite parties.

The learned counsel for the 2^nd opposite party has produced rulings of the Hon'ble Consumer Disputes Redressal Commission, Kerala in Poulose A.A Vs. Philomina Johy reported in 1997(1)CPR 634 wherein it has been held that where a manufacturing defect is alleged by complainant, the liability has to be fastened with the manufacturer and not on the dealer or agent. But, by now it is settled position that the dealer cannot evade its liability. It is the responsibility of the dealer to make necessary arrangements to fulfil their obligations under the warranty. The dealer has brought the equipment from the manufacturer and sold it to the complainant on profit. Hence the dealer is equally responsible for the same.

In the light of the above discussions, it is found that the mobile phone has become defective and the failure of the opposite parties in not attending to the repair and after sales service in time in spite of various complaints by the complainant is a gross deficiency in service in the manner and nature of performance on the part of the opposite parties resulting loss to the complainant. The complainant is entitled for the refund of the sale price. The improper functioning of the phone would have obviously caused loss and inconvenience to the complainant for which the opposite parties are bound to compensate.

In the result, the opposite parties shall jointly and severally refund Rs. 5,909/- along with a compensation of Rs. 2,000/- and Rs. 500/- towards costs of the proceedings within a period of one month failing which the above amounts shall carry interest @ 12%.

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 day of 31^st March 2009.

S.K. SREELA : MEMBER

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER

O.P. No. 433/2002

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - V.G. Prabhakaran Nair

II COMPLAINANT'S DOCUMENTS :

P1 - Photocopy of cash receipt No. K/01/30199 dated

19.09.2001 for Rs. 5,909/-.

P2 - Copy of receipt dated 20.12.2001.

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Acknowledgement receipt with ARF No. 29 dated 21.12.2001.

PRESIDENT