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 /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 243/09 DATED 29.09.2009<br /> ORDER<br /> <br /> Complainant Manoj, S/o S.Govindraj, No.44, MIG, 1st Stage, Kuvempunagar, Mysore.<br /> <br /> (By Sri.K.Sanjay, Advocate)<br /> <br /> Vs. <br /> Opposite Parties 1. Senior Manager, Revann’s Nokia Care, New Kantharaj Urs Road, Mysore.<br /> <br /> 2. Proprietor, Jeeth Communications, No.32/3, Narayan Shastry Road, Mysore-24.<br /> <br /> (By Sri. B.Paneesh Kumar, Advocate for O.P.1 and <br /> O.P.2 - dismissed)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 10.07.2009<br /> Date of appearance of O.P. : 11.08.2009<br /> Date of order : 29.09.2009<br /> Duration of Proceeding : 1 MONTH 18 DAYS<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. Under Section 12 of the Consumer Protection Act, the complainant has filed the complaint, seeking a direction to the opposite parties to replace or exchange the defective mobile handset to new one or to any other model and in the alternative to refund the entire price of the said handset along with litigation cost, amounting to Rs.2,000/-.<br /> <br /> 2. In the complaint, it is alleged that the first opposite party is the Nokia Care Centre and the second opposite party is the retail seller of Nokia Handset products. On 12.07.2008, the complainant purchased a Nokia 6500 cc (IMIE No.357683012745610) for Rs.14,862/- from the second opposite party. Within 15 days from the date of purchase, charging and connectivity problem arose. When the complainant approached the second opposite party, it directed to contact the first opposite party Nokia Care Centre. Accordingly, the complainant handed over the handset to the first opposite party. On the next day itself, the first opposite party delivered back the handset by repairing it. Thereafter, within 4 days again same problem occurred. Then, the complainant again approached the first opposite party. The first opposite party took the handset for observation purpose. After 2 days, the handset returned back to the complainant. On 12.12.2008, again the handset started to give trouble. The first opposite party received the handset for repair and it gave a stand by for temporary use till the defective handset is repaired. The standby handset was 1208 with IMIE No.359846019098972 and BL-5C-B11063467. After, the first opposite party repaired the handset, the standby handset was delivered back. On 12.01.2009, again same problem repeated. The first opposite party after receiving the complainant’s defective hand, swapped it. The word IMIE No. changed to 357683012809945. After some day, the handset was delivered back to the complainant. In the month of June 2009, again problem occurred. The complainant complained the same to the first opposite party. It rejected to repair. The first opposite party arrogantly rejected to repair and issued a vague letter dated 02.07.200, that the warranty period is expired. It is further alleged that, the opposite parties by giving defective handset and not responding properly or negligent in rendering service, which establish deficiency in service. Accordingly, it is prayed to allow the complaint.<br /> <br /> 3. The first opposite party in the version has contended that, the complainant has mis-represented the Forum to suit his convenience by creating documents to make wrongful gain. It is denied that, the complainant purchased the handset as alleged, particularly on the date mentioned. The bill dated 12.07.2008 produced by the complainant is created in collusion with second opposite party. Further, though some other allegations in the complaint are denied, it is stated that whenever, the complainant approached this opposite party, it has provided prompt service to the complainant. It is stated in the month of June 2009, complainant had approached this opposite party, but by that time warranty period was lapsed and on request, a letter was given to the complainant. It is contended that, this opposite party is just an authorized service centre. There is no deficiency in service whatsoever from the site of this opposite party. Further, it is contended that manufacturer has not been made a party to the proceedings. On these grounds, it is prayed to dismiss the complaint.<br /> <br /> 4. The complainant did not take steps against the second opposite party. Hence, by the order dated 16.09.2009, the complaint against the second opposite party is dismissed.<br /> <br /> 5. The complaint was proceeded only against the first opposite party. When the matter was posted for filing the affidavit of the complainant, the complainant as well as advocate remained absent. No affidavit for the complainant has been filed. Proprietor of the first opposite party has filed his affidavit. For both the parties, certain documents are produced. When the matter was posted for arguments, the complainant and the advocate were absent. On earlier two dates also, the complainant and advocate were absent. Hence, we heard the arguments of the advocate for the first opposite party and perused the material on record.<br /> <br /> 6. Now the points arises for consideration are as under:-<br /> 1. Whether the complainant has proved any deficiency in the service on the part of the first opposite party and that he is entitled for reliefs sought?<br /> 2. What order?<br /> <br /> 7. Our findings are as under:-<br /> Point no.1 : Negative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 8. Point no. 1:- As alleged in the complaint, the complainant purchased the mobile handset from the second opposite party. The complainant in the complaint all along has alleged that it was defective handset. On this ground, the complainant has sought the relief either to replace the said handset or exchange it to new one and further, in the alternative, to pay back the price of the said handset.<br /> <br /> 9. As noted earlier, since the complainant did not take steps against second opposite party, the complaint against second opposite party has been dismissed. As alleged, the complainant has purchased the handset in question from the second opposite party. Hence, the second opposite party dealer has to replace or exchange the defective handset. It is different matter that the complainant has to prove the handset was defective. Irrespective of proof or otherwise that the handset was defective, assuming that the facts alleged by the complainant are proved, since the complainant has purchased the handset from the second opposite party, the liability either to replace or refund the price is on the second opposite party. Since, the complaint against the second opposite party is dismissed, no relief against the said second opposite party can be granted.<br /> <br /> 10. Now, coming to consider the liability of the first opposite party, the complainant alleges that he had taken the defective handset for repairs to the first opposite party and 4 to 5 times, it was attended by the first opposite party. Further, complainant alleges that, thereafter, the first opposite party did not yield to the request of the complainant to attend the said handset on the ground that the warranty period was expired. If, that is so, after expiry of warranty period, no liability can be fastened on the first opposite party to repair the handset.<br /> <br /> 11. Leaned counsel for the first opposite party pointed out that, the complainant has filed false and vexatious complaint on the basis of the bill created in collusion with the second opposite party. This contention has been taken by the first opposite party in the version and further, that is stated on oath in the affidavit filed for the first opposite party.<br /> <br /> 12. The learned advocate pointed out the first document that the complainant has produced along with the list. It is a bill bearing No.439 dated 12.07.2008. According to the complainant, he has purchased the mobile handset, last four digits 5610. But, the counsel for the first opposite party submitted that, infact, said handset is swapped handset. In this connection, the learned counsel pointed out the second document produced for the first opposite party with the list. It is Xerox copy of delivery challen. The document is dated 30.07.2008. It is copy of job sheet. In the lower part of the document, the job pertaining to complainant and other particulars are narrated. The old handset and it’s serial number is mentioned as 354871024364495. The handset in question 357683012745610 is also mentioned. It is stated as swapped. The said job sheet is duly signed by the complainant. The date of swapping is 15.07.2008. According to the complainant, he purchased the handset on 12.07.2008. It is subsequent. As alleged in the complaint that, after about 15 days from the date of purchase, the handset had problem and hence, that was taken to the first opposite party for repair. But, the date of swapping mentioned in this document is 15.07.2008. When the complainant had purchased the handset as per the bill in question on 12.07.2008 and after 15 days, it had problem, then it must be 15 days after 12.07.2008. Hence, on 15.07.2008, there was no question at all to swap the handset. At Serial no.5, the opposite party has produced service job sheet dated 09.07.2008. IMIE No. of the handset of the complainant is mentioned as 357683012275295. This document is duly signed by the complainant. This document is dated 09.07.2008. When the complainant had given the handset for repair to the first opposite party on 09.07.2008 itself, the contention of the complainant that as per the bill in question he purchased the handset on 12.07.2008 cannot be believed and as submitted by the advocate for the first opposite party, the said bill is concocted or created one. Because, as noted above, that the complainant as alleged had purchased the handset on 12.07.2008, he had no occasion or reason at all to approached the first opposite party for repair 3 days earlier, on 09.07.2008 as per the document at serial no.5 produced by the first opposite party. Hence, the contention of the first opposite party that the complainant has created the bill at serial no.1 in collusion with the second opposite party has to be believed. This fact is stated by the first opposite party in the affidavit. Considering the facts, absolutely, we have no reason to dis-believe the said statement made by the first opposite party on oath. Not only that said statement is made by the first opposite party on oath, that statement is further corroborated by the documents referred to above. Hence, we are convinced that the complainant has created the document at serial no.1, the bill in collusion with the second opposite party and based on that created document, has filed the complaint. The learned advocate further pointed out that when the first opposite party filed the version stating that the complainant has created the bill in collusion with the second opposite party, the complainant as well as advocate subsequently remained absent, apprehending that he will be prosecuted or action may be taken etc., As pointed out by the learned advocate, in fact, thereafter complainant and the advocate remained absent on subsequent dates.<br /> <br /> 13. The learned advocate for the first opposite party submitted to taken action against the complainant for filing false complaint on the basis of created document, so as to curb such attitude of the complainant. Considering the facts, we feel it just to impose fine on the complainant to curb filing of false or vexatious complaint. Under section 26 of the Consumer Protection Act, it is provided that where the complaint instituted before the Forum, is found to be frivolous or vexatious for reasons to be recorded in writing dismiss the complaint and make an order that the complainant shall pay to the opposite party such cost not exceeding Rs.10,000/-. Considering the said provision, facts and the circumstances of the case, imposing of cost of Rs.2,000/- on the complainant is just necessary only with a view to prevent filing of frivolous and vexatious complaint.<br /> <br /> 14. Accordingly we answer the point Negative.<br /> <br /> 15. Point No. 2:- Considering the discussion made above and conclusion arrived at, we pass the following order:- <br /> <br /> ORDER<br /> <br /> 1. The Complaint is dismissed with cost of Rs.2,000/-.<br /> 2. The complainant shall pay cost of Rs.2,000/- to the first opposite party within a month from the date of this order.<br /> 3. 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 29th September 2009)<br /> <br /> <br /> <br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> (Shivakumar.J.)<br /> Member<br /> <br /> <br /> <br /> <br /> <br /> <br />