O R D E R.

By Sri. A.S. Subhagan,  Member:

          This is a complaint filed under section 12 of the Consumer Protection Act  1986.

          2. Facts of the complaint in brief:-  The Complainant had purchased a LAVA-A44 brand Mobile Phone   on 24.12.2017  for Rs.4,600/- from the first Opposite Party who is the proprietor of M/s  Whatts app Mobile,  Sulthan Bathery.  The Mobile  phone had  two years warranty.  In the  month of October 2018 the mobile phone became useless due to  failure of its  charging.  Subsequently while the Complainant on telling  the  above matter  to the 1^st  Opposite Party,  he took  the Complainant to the  2^nd  Opposite Party and told that the  complaint is within the warranty period  and agreed to repair  the mobile phone.  The 2^nd  Opposite Party is the authorized service provider of the mobile manufacturing  company.  On  knowing the fact that the mobile phone has been repaired,  on 07.11.2018,  the Complainant approached  the 2^nd   Opposite Party to take back the repaired mobile phone.  But the  2^nd  Opposite Party gave back the mobile phone to the Complainant after charging Rs.302/-.   After reaching home and seeing the same complaint again to the mobile phone,  he again approached the 2^nd  Opposite Party for curing the defect of the mobile phone.   But the 2^nd  Opposite party treated the Complainant with anger and told him that he  had no  responsibility in the issue.  Hence,  charging repair charges during the period of warranty and non-repairing  of the mobile phone by the  2^nd  Opposite  Party and non-providing  of the warranty facilities promised by the 1^st  Opposite Party at the time of purchase of the mobile phone are deficiency in service and unfair trade practice from the part of the 1^st  and  2^nd  Opposite Parties.  The above acts of the Opposite  Parties have caused mental  agony and financial loss  to the Complainant.  Hence the Complainant has approached the Commission with the  complaint  praying to

1.  Direct the Opposite  Parties to pay Rs.54,902/-  together with interest @ 12%.
2. Direct the Opposite Parties to pay  the cost of this complaint and
3. Direct the Opposite  parties to give such other relief to the Complainant as the commission deems fit enough to grant.

2. The  Commission registered the complaint and notices were served on the

Opposite Parties. The Opposite Parties entered appearance and versions were filed.

          3. Contents  of version in brief,  filed  by the 1^st  Opposite party:-  The 1^st  Opposite Party admitted  the sale of the mobile phone to the  Complainant and its warranty conditions.  He  contents that as a retailer he has only selling  responsibility.  After sale,  the responsibility regarding the defects and services are vested with the manufacturing company and service provider.   If the  Mobile Phone  was not got  repaired from the service centre,  the complainant had to approach the manufacturer.  The mobile phone  might have  fallen in water and that might have caused for the defects of the phone.  If  the  Complainant had to get any compensation, he had to approach the manufacturer.  So the 1^st  Opposite Party has no responsibility to make good the  loss  and the Complainant has no right to get the relief sought for.  So,  the 1^st  Opposite Party prays before the Commission to dismiss the complaint advising the Complainant  to file  complaint against those who are responsible. 

          4. Contents of version in brief,  filed  by the 2^nd  Opposite Party:- The 2^nd  Opposite Party contents that at the time of entrusting the LAVA-44 Mobile Phone for service in the  service centre the service technician had examined and  seen that the phone had became useless as water and fungus were entered in it.  This fact was informed to the Complainant and it was serviced and had given back to the Complainant as it was known and  agreed by the Complainant.  The 2^nd   Opposite  Party had no permission to repair the Mobile phone having liquid  damage in warranty condition.  The  company has not  given any permission to the 2^nd  Opposite Party to do so.  If the mobile phone had the same complaint  mentioned in the complaint, he was at liberty to approach the  2^nd  Opposite Party.    This  had not  happened.  If needed,  the Complainant could  make  a complaint to the customer care number of the company regarding this.  This matter was informed to the Complainant at that time.  Hence,  the 2^nd  Opposite Party  prays before the commission  to exclude the 2^nd  Opposite Party  from the complaint and to direct the Complainant to implead the manufacturing company.

          5. Affidavits  were filed by the Complainant and 1^st  Opposite Party.  Exts.A1, A2 and MO1 were marked from the side  of the Complainant and he was examined as  PW1.  Ext.B1 was marked from the side of the 1^st  Opposite Party and he was examined as OPW1. 

6. Considering the complaint, versions, the documents filed,  MO1 marked and the oral evidence adduced by the parties,  the Commission raised the following points for consideration.

1.  Whether there has been any deficiency in service/ unfair trade practice from the  part of the Opposite Party?
2. If so whether the Complainant is entitled to get compensation,  interest and other expenses as prayed for?
3. Whether  the Complainant is entitled to get cost of this complaint?

7. Point No.1:-  It is the  admitted fact that the mobile phone referred  in the

complaint was purchased by the Complainant from  1^st Opposite Party and it was entrusted to the 2^nd Opposite Party for  repair, after approaching the 1^st Opposite Party.  The main allegation of the Complainant is that during warranty period  the 2^nd  Opposite Party charged Rs.302/-  for the repair of the mobile phone,  which is evident from Exts.B1 and A2 documents.  On the acknowledgement  of  service  request (A2) the estimated amount for repair is shown as “O” but 2^nd Opposite Party has charged Rs.302/-  from the complaint.  These are seen contradictory and against natural justice.  On seeing  the same complaint again to the Mobile phone, the Complainant says that, he had approached the 2^nd  Opposite Party, the  second time.  But the  2^nd  Opposite Party  denied repairing it telling that he was not responsible for repairing it as the defect was caused to the phone as water was entered in it.  The  2^nd  Opposite Party  also says that this matter was informed to the Complainant and the first repair was done on his concurrence.    The 2^nd  Opposite Party has not produced any evidence to substantiate his contention and hence it cannot be accepted.  According to  2^nd  Opposite  Party,  if the Complainant had again any grievance, he was at liberty to contact and approach the  manufacturing company of the mobile phone.  On perusing the complaint,  version,  affidavits and documents marked and the oral evidence adduced,  we see that the complaint was during the period of warranty and the mobile phone was not able to be used by the Complainant.  Though it was repaired, again it had the same complaint which was not cured by the Opposite party No.2.  On the other hand the 2^nd  Opposite Party contents that the mobile phone was damaged due to the presence of water in it.  The 2^nd  Opposite Party has not taken  and produced any expert opinion to prove his contention.  So this contention cannot be accepted.  As a responsible service provider  he had a duty to contact the   manufacturing company for seeking advice and instruction regarding this matter and had to inform the details to the Complainant.  He has not done this.  On the  other hand he vehemently  told the Complainant that he was not responsible to repair the mobile phone and instructed the Complainant to approach the manufacturing company.  Merely directing  a consumer to approach the manufacturing company without curing the defect of the mobile phone  for a simple matter like this and charging repair charge during the period of warranty amounts to deficiency in service/unfair trade practice from the  part of the 2^nd  Opposite  Party. 

          8. The 1^st  Opposite Party contents that being a retailer he has no responsibility after the sale of the mobile phone.  He  also contents that the mobile phone might have plunged  into water or water might have entered  into the mobile phone in any other manner and that shall be the cause of damage to the mobile phone.  This contention of the 1^st  Opposite party cannot be accepted as he also has failed to prove his contention by taking and producing any expert opinion.  As a reliable and responsible seller of a product, even the retailer has some  responsibility and liability towards the consumer for the after sale service of the product he has sold.  Here the 1^st  Opposite Party also has failed to fulfill  his responsibility to extend  fruitful  after sale service.  This also amounts to deficiency in service from the  part of the 1^st  Opposite party.  So deficiency  of service is proved  against the 1^st  and 2^nd  Opposite Parties. 

          9. Point No.2:-  As point  No.1  is proved against the  1^st and 2^nd  Opposite Parties,  the Complainant  is entitled to get compensation .

          10. Point No.3:-  As point No.1 and 2  are proved against the Opposite  Parties the Complainant has the right to get cost of this complaint.

          In the result,  the complaint is partly allowed and the Opposite Parties are directed

1.  To pay Rs.10,000/-  (Rupees Ten thousand only)  as compensation.
2. To pay Rs.4,902/-  (Rupees Four thousand Nine hundred and Two only) being  the purchase price and amount of charges paid for repairs and
3. To pay Rs.4,000/-  as cost of this complaint to the Complainant.

The above amounts will carry interest @ 6% per annum from the date of this

complaint .  The total  amount shall be contributed in the  ratio of 1.3 by Opposite Party No.1 and 2 respectively and shall be paid to the complainant within  one month from the date of this complaint failing which  the  complainant has the right to recover the amount by due process of law. 

Dictated to the Confidential Assistant, transcribed by him and corrected by me and pronounced in the Open Commission on this the 31^st  day of March 2022.

Date of filing:03.09.2019                                     

PRESIDENT:  Sd/-

                                                                   MEMBER    :  Sd/-

                                                                   MEMBER    :  Sd/-

APPENDIX.

Witness for the complainant:

PW1.           Benny A.V.                    Complainant.

Witness for the Opposite Party:

OPW1.        Sanoop.  K.A                 Sales man

Exhibits for the complainant:

A1.              Cash Memo.                                               dt:24.12.2017.

A2.             Copy of  Acknowledgement of Service Request.            

Exhibit for the Opposite Party:

B1.              Warranty Certificate.