BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM;
VIZIANAGARAM
(UNDER THE CONSUMER PROTECTION ACT, 1986)
PRESENT:- SRI T.SRIRAMA MURTHY, M.A., LL.B., PRESIDENT
SRI G.APPALA NAIDU, M.Com.,MBA., P.G.D.C.S., B.L., P.G.D.M.V.O., MEMBER
FRIDAY THE 31st DAY OF JANUARY ,2014
C.C.No.85//2012
Between:
Mrs. Ch.Prasanna,
W/o Mr.Srinivasa Rao, Dr.No.2-34,
Sathiwada Village,
Nellimerla Mandal,
Vizianagaram District. … Complainant
And:
1. The Proprietor,
Taj S.S.Cell World, Near 3 Lamps Junction,
Beside Maszid, Poolbagh Road,
Vizianagaram – 535002.
2. The Proprietor,
Aditya Cell Care, Authorized Nokia Service Centre,
F-3, Besides Sweet India,
Sai Durga Commercial Complex,
Railway Station Road, Vizianagaram – 535002.
3. The Chief Executive Officer,
Nokia India Pvt. Ltd.,
Radison Complex commercial plaza,
Mahipalpur, New Delhi – 110037. … Opposite Parties
This complaint is coming on for final hearing before us in the presence of Sri Swaroop Kumar Dwarapureddi, Advocate for the complainant and no representation from the opposite parties and having stood over for consideration, the Forum made the following:-
O R D E R
G.APPALA NAIDU, MEMBER
This complaint is filed U/s-12 of the C.P.Act 1986 seeking reliefs to direct the OP’s jointly and severally to give new mobile handset along with new invoice, warranty under the terms of company and compensation of Rs.25,000/- for loss of mental tension and agony suffered by the complainant along with costs of the complaint and such other further reliefs as Hon’ble Forum deems fit and proper in the interest of justice.
The complainant submits that she purchased Nokia Mobile Handset for Rs.13,600/- under tax invoice no.48 on 19.09.2010 and as per the note underneath the said tax invoice the OP no.1 assured warranty for one year on handset and OP no.3 vide the user guide OVI service terms book supplied along with the mobile handsets assured warranty of one year on the handset.
The complainant further submits that previously she preferred complaint in CC No.132/2011 before this Hon’ble Forum against all the OP’s as the said mobile failed to function as promised and assured by them within the warranty period and while the same is pending for disposal, the OP no.2 and the complainant settled the matter out of court. On 21.11.2011 at the time of the disposal of aforesaid complaint and as per the settlement arrived out of court, the OP no.2 gave one Nokia Mobile towards replacement of the disputed and defective old mobile and the replacement handset bears IMEI No.358627043582657-C-6-01 and accordingly the Hon’ble Forum is pleased to terminate the above consumer complaint by its order dated 21.11.2011 based on the memo filed by the complainant and the OP no.2.
The complainant also submits that the OP no.2 handed over the replacement handset (Nokia Mobile) under the full and final settlement dated 21.11.2011 and as such it is deemed that the OP no.2 on behalf of OP’s No.1 and 3 agreed for all warranty conditions under the terms of the company as demanded in the earlier legal notice dated 9.9.2011 and also as prayed in the complaint in CC.No.132/2011 and the Hon’ble Forum also vide its order dated 21.11.2011 declared that the said cell guarantee is there upto 23.11.2012.
It is further submitted that the Replaced handset also started to give trouble giving rise to repairs and this time the touch screen stopped functioning from January 2012 and therefore she approached OP no.2 who repaired the Mobile thrice in the months of February, March and May 2012 but the mobile handset did not function to its best or atleast to the minimum satisfaction of the complainant and finally failed to function and when asked the OP No.2 he stated that though he changed the entire software of the said mobile it is not functioning in normal way and hence expressed his helplessness in the above matter. Therefore the complainant submits that the OP No.2 with an intention to escape from the future obligation under the Forum order in the above pending case, gave the defective Replacement handset instead of giving a brand new complete Mobile set under seal. The above said action of the OP comes under further negligence.
In view of the above reasons though the complainant requested the OP no.2 to replace the defective mobile with a new mobile handset of the same brand as the warranty period is upto 23.11.2012, he did not give new mobile handset inspite of several visits made by the complainant to the shop of OP no.2 but finally gave evasive replies. The complainant is subjected to lot of mental tension and physical suffering mainly due to the negligent, defective and deficient service and acts of OP No.2 and OP No.3 vicariously for the acts of the OP No.3 as well. The complainant seeks relief in the complaint for the deficiency of service and negligence and also for the unfair trade practice adopted by the OP’s and hence all the OP’s are jointly and severally liable to pay compensation and damages etc., The complainant also got issued legal notice dated 15.10.2012 calling upon all the OP’s to give another new mobile handset but invain.
It is further submitted by the complainant that the 1st and 2nd OP’s having received the aforesaid legal notice did not make arrangements to give new mobile handset nor gave any reply to the aforesaid notice and as such it is deemed that they have admitted the contents of the legal notice. Further the registered cover containing legal notice sent to 3rd OP is returned unserved with a postal remark “left”.
The OP’s 1,2,3 called absent inspite of several adjournaments granted and opportunities given nor they filed counters, Evidence Affidavits and brief written arguments respectively. Since the process for OP 3 is not filed, petition against OP 3 is dismissed.
As per the direction of this Forum since it is alleged that there is defect in the Mobile set, the complainant deposited the mobile set in the Forum and also a sum of Rs.300/- to the credit of the Forum towards the fee payable to the laboratory for carrying out the analysis/test in relation to the said cell the same was sent to Gowri authorized mechanic for cellkon mobile (present independent mechanic), Sai Plaza, M.G.Road, Vizianagaram for analysis who reported that the alleged cell phone is having defect in motherboard as a reason of which the touch screen is not working.
Exhibits A1 to A8 are marked on behalf of the complainant. Exhibit A1 is the Tax invoice/cash bill of Taj S.S.Cell World. Exhibit A2 is the copy of order of this Forum. Exhibit A3 is the copy of the settlement. Exhibit A4 is the copy of the legal notice dated 15.10.2012. Exhibit A5 is the postal receipt evidencing dispatch of the legal notice sent to OP’s. Exhibit A6 is the postal acknowledgement received from 2nd OP. Exhibit A7 is the postal acknowledgement received from OP-1. Exhibit A8 is the returned postal cover from the 3rd OP.
Heard arguments from the side of the complainant whereas the OP 1 to 3 are absent and did not comeforward to advance arguments.
As the OP’s 1 and 2 are absent and did not appear before this Forum inspite of several adjournaments granted and having received the legal notices nor gave any reply to the same, it is deemed that they have admitted the contents of the complaint and also the legal notice. Since the process for OP 3 is not filed, the petition against OP 3 has been dismissed.
As the report submitted by the present independent mechanic, Gowri authorized mechanic for cellkon mobiles, Sai Plaza, M.G.Road, Vizianagaram clearly reveals that there is defect in the mother board as a reason of which the touch screen of the mobile is not working, the complaint is liable to be partly allowed, since the aforesaid report is given based on thorough verification and examination.
In the result, the OP’s 1 and 2 are directed to rectify the defect in the mother board of the Mobile set to ensure that the touch screen and the mobile set functions to the entire satisfaction of the complainant or alternatively to deliver a new Mobile handset of the same brand to the complainant. The OP’s 1 and 2 are further directed to pay costs of Rs.3,000/- to the complainant which includes Advocate fee of Rs.500/- This order shall be complied within one month from today.
Dictated to the Steno, transcribed by him, corrected by me and pronounced by us in the open Forum, this the 31st day of January, 2014.
Member President
C.C.No.85/2012
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
For complainant:- For opposite parties:-
PW 1. RW 1.
DOCUMENTS MARKED
For complainant:-
Ex.A-1 Tax invoice/Cash Bill.
Ex.A-2 Original Order passed in C.C.No.132 of 2011 by this
Honourable Forum.
Ex.A-3 Full and final settlement agreement copy.
Ex.A-4 Registered Legal Notice got issued by the complainant
to the opposite parties.
Ex.A-5 3 Nos.of postal receipts.
Ex.A-6 1 No.Acknowledgement.
Ex.A-7 1 No.Acknowledgement.
Ex.A-8 Returned un-served cover from 3rd opposite party.
President
