SMT.MOLYKUTTY MATHEW : MEMBER

     This is a  complaint filed by the complainant  U/S 35 of the Consumer Protection Act 2019 for an order directing the OP’s to refund  the value of  mobile phone  Rs.28,500/- with 15% interest from the date of purchase  and  to pay compensation of Rs.50,000/- for mental agony caused to the complainant  and  Rs.2,500/-  as cost of lawyer notice ,litigation cost and other expenses to the complainant  for   the deficiency of service  and unfair trade practice on the part of OP’s.

  The brief of the complaint :

   The 1^st  complainant had purchased a  Samsung mobile phone worth Rs.28,500/- from 2^nd OP on 23/5/2020 and  1^st  OP assured  1 year warranty of the product also.  The complainant had purchased the  mobile phone only  on believing the advertisement  and assurance of 1^st OP that the product is free from all defects and will be provided the effective and  speedy after sale service. But within one week from the purchase of the mobile phone become defective.  The problem was not charging , OTG not supporting.  When the complainant contacted 2^nd OP and it was directed to contact 3^rd OP for repair.  At that time no service register has been registered by 3^rd OP.  Then the complainant realized that the 3^rd OP has not registered the service request deliberately with malafide intention.  At that time the product rectified.  There after the same problem frequently and the defect rectified temporarily for the moment  by 3^rd OP.  The 3^rd OP was not ready to register the service request for the continuous visit.  On 12/12/2020 the product was handed over to 3^rd OP with the defects “sometime not charging OTG not  is not  supporting”.   The mobile  phone was delivered after 6 days on 17/12/2020 with acknowledgment of service request with repair description, PBA tape replaced.  But on the  next day  itself the  camera of the product shows some problems  the images and videos became blur and pixelacedon on 18/12/2020 itself.  After 3 days the 3^rd OP handed over the mobile phone  and stated that the camera has been replaced.  But the defect has not been cured and the same problem repeated.  Thereafter the mobile phone has not been fully charging  again handed over the product to 3^rd OP for repair on 23/4/2021 with defect” not  charging”.  After the repair the defect was  not fully rectified and the  defect frequently on 7/5/2021 itself.  Then due to covid 19 pandemic the 2^nd OP registered a complaint on 8/5/2021.  Then on 10/5/2021, Mr.Sujith the Senior executive of 1^st OP sent a mail to the 2^nd complainant requesting to share the copy of purchase invoice and job sheet which has been shared on the same day.  Then the complainant send a mail to above said Sujith on 28/5/2021 and got reply  that the information will be given as early as possible after consulting with 3^rd OP. Then the complainant contacted Mr.Dyson, the technician of 3^rd OP by phone and he stated the  phone was handed over to 3^rd OP.  Then on 31/5/2021 the complainant handed over the phone to 3^rd OP.  The continuous defects within the warranty period  and the product cannot be use smoothly 3^rd OP said that the mother board of the mobile phone has been already replaced twice and it should be again replaced.  Then the complainant demanded to replace the mobile phone or refund the price.  But the OP’s are not ready.  Then the complainant’s send a lawyer notice to OP on 9/6/2021.  But the 1^st OP send a reply on 15/7/2021 stating  false and baseless contentions.  Other OP’s not send reply also.  The complainant’s are Dentist, running Dental clinic lost their valuable  time regarding the  issues and sustained  huge  financial loss as they are compelled to close the clinic while running behind this issue also.  The act of OP’s the complainant caused much mental agony  and financial loss .  So there is deficiency of service and unfair trade practice on the part of OP’s.   Hence the complaint.

       After  filing the  complaint  notice issued to all OP’s .  OPs1&3 appeared before the commission and  filed their written version.  2^nd OP received the notice and not appeared before the commission and not filed version.  So 2^nd OP is set exparte.  1^st  OP contended that 2^nd complainant is a misjoinder and does not have any locus standi in this case.  If there is any manufacturing defect of the product, the complainant can prove the defect on  test report.  Moreover the reference of replacement or refund is not mentioned in the warranty document.  The product does  carry warranty only which means  product shall be  repaired free of  cost upto the period of limited period from the  date of purchase if any   trouble crops up.  Moreover on 31/5/2021 the service engineer detected at the appearance that the display broken due to  some external pressure on the hand set .  So there is no deficiency of service and unfair trade practice on the part of  1^st OP and the complaint may be dismissed.

   3^rd OP contended that he is only the authorised service centre and does not manufacture any product and this  3^rd OP has done everything it is capacity to resolve the issue of complainants.  The continuous issues caused to mobile are due to gross mishandling by complainant.  Several times fall down and  the display was broken and  told  the complainant warranty terms will be out  hence it is physical damage.  So the 3^rd OP is the  authorised service centre and no deficiency of service from the  part of 3^rd OP.  So 3^rd OP may be exonerated.  

      On the basis  of the rival contentions by the pleadings the  following  issues  were framed for consideration.

1. Whether there is  any deficiency of service   on the part of the opposite parties?
2. Whether the complainant is entitled for any relief?
3. Relief and cost.

     The evidence consists of the oral testimony of PW1 and  Exts. A1 to A16 and Ext.C1 were marked . On OP’s side Exts.B1 to B4 were  marked and no witness examined   Both sides argued the matter and 1^st OP filed argument note also..

Issue No.1: 

                The  2^nd Complainant  adduced evidence  by submitting  his chief affidavit in lieu of  his chief examination to the tune of the pleadings in the complaint and denying the  contentions in the version.  He was cross examined as PW1 by 1^st OP.  PW1 relied up on Exts.A1 to A16 documents to substantiate his case.  According to the complainant on 23/5/2020 the complainant purchased a Samsung mobile phone (model SM A 707FZRWINS)_ and paid Rs.28500/- to 2^nd OP that shows in Ext.A1 document.  The product has one year warranty .  But after one week of purchase the mobile phone became defective and the phone is “not charging, OTG not supporting.  Then the complainant informed the matter to 2^nd OP and  the 2^nd OP directed to 3^rd OP for repair.  Thereafter again the problem arise and he approached to 3^rd OP on 12/12/2020 and the acknowledgment of service request is also register the complaint of the mobile phone(Defect description) sometimes not charging, OTG not supporting.  The remark shown as internal inspection not done.  Repair description shown as  PBA, Tape replaced.  The said document is marked as Ext.A2(series).  In Ext.A2 dtd. 23/4/2021 and Ext.A2(b) dtd.31/5/2021 the defective description noted in the service request is” not charging”.  So it is clear that the OP’s are not cured the defect of the mobile phone.  Thereafter the complainant send lawyer notice to OP’s and marked as Ext.A3.  In Ext.A4 is the postal receipt(3 in Nos.) and Ext.A5 is the acknowledgment card of 3^rd OP.  In Ext.A6 is the returned lawyer notice by 3^rd OP.  In Ext.A7  is the reply notice by 1^st OP.   In Ext.A8 series print out of mail by 1^st OP.   In Ext.A9 printout of mail from complainant  to 1^st OP.   In Ext.A10, A12, & A14  are the printout of  mail    from 1^st OP to complainant.   In Exts.A11&A13 are the printout  of mail  from 2^nd complainant to 1^st OP( 2 in Nos.).  In Ext.A15 is the tax invoice of new phone  purchased by the complainant on 13//7/2021 for an amount of Rs.36,499/-.  The same is also defective and in defect description  blank display.  In Ext.A16 is the service request dtd.9//5/2023.  According to the complainant in Exts.A2 to A14 which clearly shows that the mobile phone is showing defects frequently within one week from the purchase itself as the product is having manufacturing defects and the OP’s are cheating the  complainant by selling the product having manufacturing defect. Moreover Exts.A9(a), Ext.A11(a),Ext.A13, A13(a) are also connected to  2^nd complainant  also.   But the OP’s are not ready to replace the mobile phone or refund the value of mobile phone also.

       On 27/6/2022 the complainant filed a petition to appoint an expert commissioner.  3^rd OP  also produced the mobile phone before the commission and keep in safe custody .  Since OP’s have no objection and application  allowed.  Then the panel of expert furnished.  The commission appointed Mr.Suhail E.P is the expert commissioner.  The commissioner filed the report  and marked as Ext.C1. In the commission report it is seen that (1)  on inspection the defects seen are not charging , OTG not supporting, main flex cable defect, back frame net working antenna cut due to the continuous opening of the phone for repair.(2) PBA(PCB) seen replaced.  The PBA(PCB) are replacing only when there is manufacturing defect.  Present PBA(PCB) in the phone also is defective.  (3) On getting the phone the charge was not  charging  when replaced with a new flex cable for the purpose of inspection the set charged for some time.  After a while  it become not charging.  After inspection the expert insert old one which was there in it earlier. (4)  Display of the phone not  broken, a crack on the glass of the phone noticed.  The crack seen in the  glass of the  phone is not the reason for the defects of the  phone.  As per Ext.A2 the defect noted is “not charging and OTG not supporting, but no remarks of display broken or crack in it.(5)  The charge(voltage) is not seen passed from PBA(PCB) to the mother board which is the reason for not charging.  It is due to the manufacturing defects, the same brand handset shows same problem of not charging, OTG not supporting which may be manufacturing defect of the said brand, the said handset cannot be used smoothly after repair as it will show same problems continuously even after repair etc.  In the evidence of PW1, he deposed  before the commission that   “ one year warranty  ആണ് ഉണ്ടാവുക എന്നും അത് പ്രകാരം ഒരു വർഷത്തിനുള്ളിൽ repair ചെയ്തു തരുക എന്നതാണ് OP യുടെ ഉത്തരവാദിത്വം എന്ന് പറയുന്നു? Same complaint  വീണ്ടും വീണ്ടും വന്നതുകൊണ്ട് repair  ചെയ്യാൻ പറ്റില്ല അതുകൊണ്ടാണ് replace or refund ആവശ്യപ്പെട്ടത് .  In re-examination PW1 stated that phone ഇപ്പോഴും OP.NO.3 യുടെ custody യിൽ ആണ്. Display ൽ അല്ല glass ലാണ് crack എന്ന കാര്യം expert പറഞ്ഞപ്പോഴാണ് മനസ്സിലായത് display broken  എന്ന് OP.NO.3 എന്നെ പറഞ്ഞു പറ്റിക്കുകയായിരുന്നു . 1^st OP produced Exts.B1 to B4 documents before the commission to prove their case.  But as per the expert report it is noted that the phone  cannot be used smoothly after repair  it is due to some manufacturing defect.  Then the complainant constrained to purchase another mobile phone worth Rs.36,499/- on 13/7/2021 for  her use. The act of OP’s the complainant caused much mental agony  and financial loss .  There is deficiency of service and unfair trade practice on the part of OP’s. Hence the issue No.1 found in favour of the complainant and answered accordingly.

Issue Nos. 2&3:  

    As discussed above the OP’s are not ready to replace the mobile phone to the complainant in the warranty period.  The complainant  produce Exts.A1 to A14 documents which clearly shows that the complainant had purchased the mobile phone worth Rs.28,500/- and in the warranty  period it becomes defective and not repaired by the OP’s. Then the complainant constrained to purchase another mobile phone worth Rs.36,499/-.  According to the complainant failure to replace the mobile  phone the OP’s directly bound to redressal the grievance caused to the complainant.  Therefore we hold that the OP’s are jointly and severally liable to refund  the value of mobile  phone for Rs.28,500/- to complainant along with Rs.10,000/- as compensation for mental agony caused to the complainant and Rs.5000/- as litigation cost.  Thus the issue Nos. 2&3 are also accordingly answered.

             In the result the complaint is allowed in part  directing the  opposite parties 1 to 3 are jointly and severally liable to refund  the value of mobile  phone for Rs.28,500/- to complainant along with Rs.10,000/- as compensation for mental agony caused to the complainant and Rs.5000/- as litigation cost  within  30 days of  receipt  of this order. In default the amount of  Rs.28,500/- carries 12% interest  per annum  from the date of order till realization.   Failing which the  complainant is at liberty to  execute  the  order as  per the  provisions  of Consumer Protection Act 2019.  After the said proceedings the opposite parties  are at liberty to take back the mobile phone from the commission.

Exts:

A1-Purchase bill dtd.23/5/2020

A2-Acknowledgment of service  request of 3^rd OP(3 in Nos.)

A3-Copy of  registered  lawyer  notice

A4-posal receipt(3 in Nos)

A5- Acknowledgment card by 3^rd OP

A6- returned lawyer notice by 2^nd OP

A7-reply notice by 1^st OP

A8,A10,A12,A14 (series) –Print out of mail by  1^st OP to complainants

A9, A11,13(series)-Print out of mail from complainants  to 1^st OP

A15- Tax invoice dtd.13/7/2021

A16- Acknowledgment of  service request dtd.11/5/2021

C1- Expert commission report

B1&B2- Acknowledgment of service request

B3-Reply to the legal notice

B4-Display images

PW1-Fayas Sali-  2^nd Complainant

Sd/                                                             Sd/                                                   Sd/

PRESIDENT                                             MEMBER                                               MEMBER

Ravi Susha                                       Molykutty Mathew                                    Sajeesh K.P

eva           

                                                                        /Forwarded by Order/

                                                                   ASSISTANT REGISTRAR