SMT. RAVI SUSHA: PRESIDENT
This complaint filed U/s 12 of Consumer protection Act 1986, seeking to get an order directing opposite party to pay Rs.50,000/- to the complainants together with cost of the proceedings of this complaint.
The case of complainant in brief is as follows. The complainant No.1 is doing Animation course at Kannur and is the son of complainant No.2’s husband’s friend. The complainant No.2 is the owner of Nokia lumia 920 phone which is the subject matter of this complaint. On 03/10/2016 the complainant No.1 had taken the said mobile phone of the complainant No.2 on her request for repairing the display of the phone to the OP who is running a mobile shop servicing business in the name & style “Fono Communications”. The OP after noting & seeing the complaint and having satisfied with the working of other parts including the camera gave a date & asked the complainant No.1 to come & collect the phone on 17/11/2016. The complainants reached the OP’s shop & OP handed over the phone with bill for Rs.4,000/- which the complainants paid & took delivery. Immediately, Complainant No.1 doubted some mistake while operating the phone. He noticed that the camera was not functioning and the same was confirmed by complainant No.2 after verifying from the shop itself. Due to the deficiency of service the complainants were totally dissatisfied with the repair work & the injustice shown to them after accepting Rs.4,000/-. It was again returned to the OP then & there he also was convinced about the non-functioning of the camera. Thereafter the phone was not returned to the complainants by OP. When asked, the OP abused the complainants stating his image is tarnished in front of the public. The aforesaid phone was purchased for Rs.29,000/- and its present rate is 31,091/- which is increasing day by day. The complainant No.2 has suffered much loss apart from the repair charge & the phone charge. Hence the complainants were caused to file a criminal complaint before the police station, Kannur on 18/11/2016 stating all these facts. The OP was called by the police but he denied the allegations and did not return the phone after repair. A lawyer notice was issued to the OP on 21/11/2016 and it was acknowledged and the OP sent a reply through an advocate denying all the allegations. Hence filed this complaint.
Notice was issued to OP. OP appeared through Advocate and filed written version. It is admitted that complainant No.1 came to this OP’s shop with Lumia 920 complaining display failure. This OP states that complainant No.1 has never disclosed that the lumia 920 phone belongs to complainants No.2. It is admitted that complainant No.1 approached this OP to repair the phone which had display failure. The OP states that he repaired the display of the phone and returned to complainant No.1 after full satisfaction of work and complainant No.1 paid the bill of Rs.4,000/-. It is hereby denied by this OP that he complainant No.1 had complained regarding the camera of the phone when he entrusted the mobile phone to this OP. This OP denies the averment that complainant No.1 doubted some mistake while operating the phone and noticed that the camera was not functioning and which was confirmed by the complainant No.2 after verifying the shop itself. This OP stated that the malfunctioning of the camera was only due to the misuse of the phone and the camera controlling integrated circuit of the phone was damaged due to the water contents in it. This OP has revealed the said fact in front of the complainant. This respondent states that the complainant is not entitled to any damages. It is herby denied the averment that complainant No.2 has come and entrusted phone to this OP. Further denied that the averment in the complaint that the phone would cost of Rs.29,000/-. This OP states that he has repaired the phone properly. Hence this opposite party is not liable to pay the compensation to the complainants. Hence prayed for this dismissal of complaint.
Both parties led their evidence. Both complainants filed their chief affidavit and were examined as Pws 1 and 2. Ext.A1 to A8 were marked. On the side of opposite party one witness was examined as Dw1 as an expert witness. Further opposite party has filed his affidavit and was examined as Dw2. All witnesses were cross-examined for the rival parties.
After that the learned counsels for complainant and OP filed their written argument notes.
The allegation of the complainant is that complainant No.2 is the owner of mobile phone Nokia Lumia 920 phone, worth Rs.29,000/- and on her request for repairing the display of the phone complainant No.1 entrusted the mobile phone to OP. Further as per the instruction complainants approached the OP’s shop for getting back the repaired phone. Then OP handed over the set and received Rs.4,000/- from complainants as repaired charge. While operating the phone it is noticed that the camera was not functioning, that was informed to OP and again the mobile set was returned to OP for the defect of non-functioning of camera. Complainant alleged that when it was entrusted to opposite party at first time, there was no complaint to the functioning of camera, and the non-functioning of camera was happened from the side of opposite party. Complainant has stated that after that the mobile set was not returned so far by opposite party. According to complainants, there was injustice from the side of OP even after receiving Rs.4,000/- from her as repairing charges and the said action of OP amounts to deficiency in service and unfair trade practice.
On the other hand OP’s version is that complainant No.1 entrusted the mobile phone to him to repair the display failure and thus he repaired the display of the phone and returned to complaint No.1 after full satisfaction and received Rs.4,000/-. OP denied the allegation of the complainants that the complaint had complained regarding the camera of the phone when it was entrusted to him. Further denied the averment of the complainants that the non-functioning of the camera was noticed at his shop itself and returned it to him for repairing the defect in camera. According to OP, the malfunctioning of the camera was only due to the misuse of the phone and the camera controlling integrated circuit of the phone was damaged due to the water contents in it and it was revealed to the complainant also. OP further stated that there was no deficiency in service or unfair trade practice from his side and not entitled to pay compensation to complainant. Further denied the cost of the mobile phone as Rs.29,000/-.
Here the question is whether OP has committed deficiency in service. It is not in dispute that complainant No.1 has entrusted the disputed mobile phone to OP for repairing. Ext.A1 reveals that at the time of entrusting, the complaint noted by OP was only to LCD and the model No. Lumia 920. Further Ext.A1 shows that Rs.4,000/- paid. Here, Ext.A1 is not disputed by OP. During the evidence time OP has deposed that after taking back the repaired mobile phone, complainant approached him after two days with the complaint of camera and admitted that the mobile set in dispute was in his custody and at present, the battery became complaint. OP further admitted that the value of the phone might be of Rs.35,000/- at the initial stage of its sale. According to opposite party the defect in camera set was due to entry of water contents in the camera controlling integrated circuit of it which was happened due to misuse of phone by complainant. The complainant’s version is that at the time of entrusting the set, there was complaint only to the display and the non-functioning of the camera was due to the fault from the side of opposite party and it was noticed while operating the phone at the shop itself just after returning it. If the mobile set was returned by complainant after two days with complaint of camera as contended by OP, OP would have given receipt, noticing the said complaint. From the said fact, it is evident that the complainant’s averment that camera became functionless after its repair of LCD complaint and returning the mobile set on the same day to the opposite party, seems to be correct. Further from the statement of Dw2 and from Ext.A8 the value of mobile set as Rs.29,000/- as stated by complainant also can be accepted. Dw1 has stated that if complaint happened to camera of the mobile set, there might be complaint happened to main pcb as well as camera of the phone. Further to rectify the display complaint, the technician need not be check Pcb and other part. Here complaint’s case is different. Further during cross-examination Dw1 deposed that he had not seen the mobile set in dispute. Since the qualification and experience of Dw1 has not been produced, there is no evidentiary value of Dw1’s evidence as an expert.
From the evidence of Dw2, it is evident that the mobile set has complaint in functioning of camera and also the said set is in his hand from 2016 onwards, it is quite evident that OP has not only committed deficiency in service but also committed unfair trade practice. In the result complainant is entitled to get relief.
In the result complaint is allowed in part. Opposite party is directed to give the value of mobile phone Rs.29,000 + Rs.10,000/- as compensation and Rs.1,000/- as cost of proceedings of the case to the complainants within one month from the date of receipt of this order. Failing which Rs.29,000 +10,000/- carries interest @9% per annum from the date of order till realization. Complainant is at liberty to execute the order as per provisions in Consumer Protection Act 2019.
Exts.
A1-Receipt
A2-Copy of the police complaint
A3-Receipt issued by police
A4-Lawyer notice
A5-Acknowledgement card
A6-Postal receipt
A7-Reply notice
A8-Catalog of the mobile
Pw1-Complainant No.2
Dw1-Joju K-Expert witness
Pw2- Ashish V K- Witness of complainant
Sd/ Sd/ Sd/
PRESIDENT MEMBER MEMBER
Ravi Susha Molykutty Mathew Sajeesh K.P
(mnp)
/Forward by order/
Assistant Registrar
