This CC is coming on before us for hearing, the complainant appeared in-person and opposite parties No.1 to 3 called absent; Upon perusing the material papers on record; upon hearing arguments, and having stood over for consideration, this Forum passed the following:-

O R D E R

(Per Sri R. Kiran Kumar, Member)

This complaint is filed under section 12-A of the Consumer Protection Act, 1986. 

2.        The averments made in the complaint are that the complainant is an agriculture labour by profession, resident of Gopelli village of Lingapuram Post, Charla Mandal, Khammam district using cell phone of Nokia make for the last more than 3 years, which has given best service, as there is a sound problem it has become old, the complainant intend to purchase a new phone, out of broad advertisement of WHAM brand cell phone (touch phone), having impressed the said phone, approached the opposite party No.1 to purchase “WD38-WHAM cell phone”.  The complainant further submitted that he purchased the cell phone by paying the Rs.2,105/- on 09-04-2016 vide invoice No.SIKGD/60/dt.09-04-2016 with TIN No.36598883952 vide IMEI-I NO.911394650161637, IMEI-II NO. 9113394650193638, S/N. WD38TC2008163, NEW HW, Which marketed by the opposite party No.2.  The complainant submitted that after purchasing the phone he used the same from 09-04-2016 to 17-08-2016, to the utter surprise the said phone was dead, not in use, immediately the complainant approached the opposite party No.1, the opposite party No.1 after duly checking that, immediately sent the same to the opposite party No.3, who in turn got the cell phone in his custody for attending its repair and issued job sheet, the complaint as “NO POWER”, and directed the complainant to come after a week days.  The complainant further submitted that he went to collect his cell phone, wherein the opposite party No.3 informed that no service for the said cell phone, the complainant immediately informed to the opposite party No.1, has taken the cell phone and the complainant believed that the opposite party No.1 will make it repair or if not he will replace with a new phone.  The complainant submitted that he made many rounds as and when, the opposite party directed to come and collect the cell phone, finally when the complainant came to know that the cell phone supplied by the opposite party No.1 is already used phone, “the mail in google search as srikanth6169”, when the complainant informed about the phone supplied is a second hand, upon which the opposite party No.1 requested the complainant that he will cause enquiry and replace the same with new one.  The complainant also submitted that, these clearly shows that the opposite party No.1 intentionally sold the second hand / used phone of others as it is new with the valid invoice, as the opposite party No.1 failed to replace the phone with new one, the complainant approached the Forum.

3.      On behalf of the complainant the following documents were marked as Exhibits A1 to A2.

Ex.A-1:- Photocopy of bill issued by opposite party No.1.

Ex.A-2:- Photocopy of Job sheet dt. 21-04-2016 issued by opposite  

              party No.3.

4.      On receipt of the notice, the opposite parties failed to appear before this Forum. 

5.      Upon perusing the material papers available on record, now the points that arose for consideration are,

1) Whether the complainant is entitled for the claim?

2) To what relief?

Point No. 1:-

In this case the complainant purchased WHAM brand cell phone “WD-38-WHAM CELL Phone” by paying Rs.2,105/- on 09-04-2016 from the opposite party No.1.  According to the complainant, the complainant used the phone from 09-04-2016 to 17-08-2016 and the said phone was dead, the complainant informed the same to opposite party No.1. On the advice of opposite party No.1, the complainant approached the opposite party No.3, who in turn got the cell phone in his custody for attending its repair and issued job sheet, with the complaint as “NO POWER”, when the complainant went to collect his phone wherein the opposite party No.3 informed that “No service for the said cell phone”, immediately the complainant informed the same to the opposite party No.1, the opposite party No.1 has taken the cell phone but failed to make it repair or replace with new one, finally the complainant came to know that the cell phone supplied is already used phone and  on search he came to know that “the mail used in google as srikanth6169”, when the complainant informed  the same to the opposite party No.1, the opposite party No.1 requested that he will cause enquiry and replace with new one but the opposite party No.1 failed to repair the phone or handover the new piece, as such the complainant approached the Forum for redressal. 

From the material available on record, we observed that the complainant purchased a new cell phone and was dead within warranty period. The complainant had given a complaint to the opposite parties to rectify the problem or to replace with new one.   We observed from the complaint that the opposite party No.1 failed to rectify the problem and as per the complainant on google search it is came to light that “the mail used in google as srikanth6169” which is a second hand phone supplied by the opposite party No.1.    After that the complainant filed complaint before this forum.  Even after receipt of notice the opposite parties failed to appear before this Forum.   In “Prabhath Kumar Sinha & another Vs. Nitish Kumar III (2016) CPJ 239 (NC) wherein, the Hon’ble National Commission observed that the petitioners being the sellers of defective computer were under obligation either to rectify the defects or to replace computer or refund the consideration amount received”.  From the above we observed that the defect is major or minor, once the consumer looses satisfaction of having cell phone. The loss of satisfaction would be much more in the case when a person buys a new cell phone with his hard earned money.  And also as per the google search made by the complainant, the opposite party no.1 sold second hand cell phone to the complainant.   In view of the aforesaid reasons this point is answered against the opposite party No.1.

Point No.2 :-

In the result, the complaint is allowed in part, directing the opposite party No.1 to replace the defective cell phone with new one, and also directed to pay Rs.500/- towards costs and damages.  The opposite party No.1 is directed to replace the phone within one month from the date of this order.  The complainant against opposite parties No. 2 and 3 is dismissed.

Typed to dictation, corrected and pronounced by us in the open Forum, on this the 20^th day of October, 2016.

FAC PRESIDENT              MEMBER

DISTRICT CONSUMER FORUM

KHAMMAM

APPENDIX OF EVIDENCE

WITNESSES EXAMINED:-

For Complainant:-                                                 For Opposite party:-   

       -None-                                                                       -None-

DOCUMENTS MARKED:-

For Complainant:-                                                           For Opposite party:-   

FAC President              Member

District Consumer Forum, Khammam.