IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> <br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 361/09 DATED 26.11.2009<br /> ORDER<br /> <br /> Complainant Shubha G.S # 27/28, Jwala mala Traders, Ashoka road, Mysore-570001.<br /> <br /> (In person)<br /> <br /> Vs. <br /> Opposite Party Revanna’s Nokia Care # 854, R.K. Plaza, Opp. to SSS Law College, Kuvempunagar, Mysore.<br /> (By Sri. B. Paneesh Kumar, Advocate,)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 24.09.2009<br /> Date of appearance of O.P. : 15.10.2009<br /> Date of order : 26.11.2009<br /> Duration of Proceeding : 1 Month 11 DAYS<br /> <br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> <br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. The complainant has filed the complaint, seeking a direction to the opposite party to replace a new mobile phone to the existing one and also to award damages detailed in the complaint.<br /> <br /> 2. It is alleged in the complaint that, the complainant is owner of N-73 music edition cell phone worth Rs.12,300, purchased on 15.10.2008. The handset had a strange joystick, problem. Six times facing the problem. The complainant had approached the opposite party, for replacement of joystick unit, which is not working. While purchasing the handset one year guarantee is provided. That is mentioned in the manual also. The opposite party spoke rashly saying only warranty is given and not guarantee. The opposite party tried to cheat by changing the job sheet, but the complainant took Xerox copy. The complainant sent letter on 29.10.2009, to the opposite party for replacement, but no reply. When the complainant called upon the opposite party as to whether they have received the letter the opposite party firstly told they did not received and later when she told that, she has proof, the opposite party answered that, they take their own time to reply and the complainant has to wait. On these grounds, she has prayed to allow the complaint.<br /> <br /> 3. The opposite party in the version, has contended that the complainant has not approached the Forum with unclean hands. The complainant is bad for non-joinder of dealer as party. It is stated, the allegation in the complaint that, the handset has joystick problem is not within the knowledge of the opposite party. However, the complainant had approached on 27.07.2009, with the same problem, which was solved. On 07.08.2009, with the same problem on one more occasion complainant had approached. It is denied that, six times complainant faced same problem. It is contended that, the complainant is taking undue advantage of her representation with the Job sheet. Also, it is stated, the warranty is applicable only for repairs and not for replacement. This opposite party only of service center. If the complainant needs replacement she has approached the dealer or the manufacturer. The allegation that, the opposite party spoke harshly and has tried to cheat are play fraud or baseless allegations made intentionally to secure a favorable order. Hence, it is prayed to dismiss the complaint.<br /> <br /> 4. To prove the facts alleged in the complaint, the complainant has filed her affidavit and some documents are produced. On the other hand, for the opposite party the proprietor has filed his affidavit. We have heard the complainant in person and learned advocate for the opposite party. Also we have perused the records.<br /> <br /> 5. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in service on the part of the opposite party and that she is entitled to the reliefs sought?<br /> 2. What order?<br /> 6. Our findings are as under:-<br /> Point no.1 : Partly affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 7. Point no. 1:- We do consider that, the complainant has sought for replacement of the handset by the opposite party service center. We do agree, under the circumstance that the opposite party being only service center, is under an obligation to replace the handset and in discretion it may refer the matter to the manufacturer. In the case on hand, the dealer or the manufacturer are not parties. Hence, the relief of replacement sought by the complainant cannot be granted against the opposite party-service center. <br /> 8. However, admittedly the opposite party being service center, is under the obligation to repair the defective handset. The complainant alleges that, there is problem of joystick unit of the handset. The opposite party has admitted that, the complainant had approached them and the problem was solved. However, that fact is disputed by the complainant. The opposite party being service center is bound to repair the handset and in case, it cannot be repaired then that has to be intimated to the complainant, according to the procedure.<br /> <br /> 9. It is alleged by the complainant that, when she approached the opposite party, for replacement, they spoke harshly and even they tried to cheat by changing job sheet. In this regard, the complainant claims that, she took Xerox copy of the job sheet and the same are produced. The complainant alleges that, in all six times she approached the opposite party and the opposite party has denied and contend that only twice the complainant had approached. In this regard, the complainant points out, in the service job sheet copy of which is produced, there is mentioned that 5 times the complainant had approached for replacement. Of course subsequently once again complainant had approached the opposite party. Considering this job sheet of the opposite party, prima-facie the case of the complainant that in all she had approached the opposite party for 6 times, has to be believed. The opposite party contends that, what was represented by the complainant that has been noted in the job sheet. But considering the entire fact when the opposite party itself has written that the complainant had approached 5 times asking, for replacement, denial of the same by the opposite party cannot be accepted.<br /> <br /> 10. Learned advocate for the opposite party submitted that, in the job sheet it is mentioned that the complainant had satisfied with the work carried out with the handset and has signed. For this, the complainant submitted that, without signing the job sheet opposite party was not ready to return the handset and as such, to take back the handset she had to signed below the printed matter though the handset was not functioning properly.<br /> <br /> 11. The complainant has produced the user guide of the Nokia and on page 42, getting warranty service is narrated. On page 40, manufacturers warrantee is stated that, it is in addition to and does not affect legal rights and on page 41, warrantee period is mentioned as 12 months, for the mobile device and accessories and in respect of other accessories different period is mentioned. Within the guarantee period from the date of the purchase, the complainant had approached the opposite party.<br /> <br /> 12. As on today the guarantee period of one year is over. But as noted above, within the said period complainant had approached the opposite party to get the problem solved in the hand and the complainant claims, the problem is not solved. Even though in the job sheet, there is mentioned that, the complainant had received the handset with job satisfactory, if really that was so, in the natural course the complainant could not have repeatedly approached the opposite party stating that the handset has problem. Under the circumstances, the opposite party is under an obligation to solve the problem with the handset of the complainant. <br /> <br /> 13. Learned advocate for the opposite party argued about the manner in which the complainant has sought damages, pointed out, that 18% interest on the price of the handset, Rs.1,500/- transportation, cost of sending letter and phone calls to opposite party, Xerox copy etc., Rs.2,000/-, for insulting for crowd Rs.5,000/-, for mental agony Rs.5,000/-, for speaking harshly Rs.3,000/-, for trying to cheat or fraud Rs.5,000/- and court cost Rs.10,000/-. The complainant is a lady. In person she has filed the complaint. Even otherwise, claiming compensation or damages as noted above, itself indicates to what extent she might have suffered. It is different aspect, whether the said claim is just or otherwise. Without repeating the allegations in the complaint and the facts stated by the complainant in the affidavit, we feel it just and proper to award a sum of Rs.3,000/-, towards mental agony and inconvenience and direct the opposite party to solve the problem in the handset of the complainant.<br /> 14. Accordingly, we answer the point partly in affirmative.<br /> <br /> 15. Point No. 2:- From the discussion made above and conclusion arrived at, we pass the following order.<br /> <br /> ORDER <br /> 1. The complaint is partly allowed.<br /> 2. The opposite party is hereby directed to solve the problem in the handset of the complainant, which is the subject matter of the present case free of cost within 15 days from the date of the order.<br /> 3. Further the opposite party shall pay compensation of Rs.3,000/- to the complainant towards mental agony and inconvenience caused, within a month from the date of the order, failing which the amount will carry interest at the rate of 10% p.a.<br /> 4. So also the opposite party shall pay a sum of Rs.1,000/- cost of the proceedings to the complainant.<br /> 5. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 26th November 2009)<br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br /> <br />