By Smt. PREETHI SIVARAMAN.C, MEMBER
1.The complaint in short is as follows: -
On 18/01/2020 complainant had purchased one OPPO A1K Black model mobilephone worth Rs.8,061/- from opposite party No.1 shop for his grandson for attending the online classes. When purchasing the mobile phone opposite party No.1 assured to complainant that the company will provide one year replacement warranty for the above mobile phone. On 16/11/2020 when the grand child of complainant was attending the online class through the above mobile phone, suddenly the phone switched off. Thereafter complainant contacted opposite party No.1 and gave the mobile phone to opposite party No.1 and after inspection opposite party No.1 said that the above mobile phone had manufacturing defect. At that time opposite party No.1 also assured that they will replace the defective mobile phone with a defect free mobile. On 30/11/2020 opposite party No.1 had contacted complainant and demanded Rs. 6,500/- for repairing the mobile phone. Opposite party No.1 again said to complainant that, if he is not willing to pay Rs. 6,500/- he can take back the mobile phone from opposite party No.1 shop. Then complainant taken back the mobile phone from opposite party No.1 shop. Due to the defective mobile phone, the grandson of complainant was unable to attend the online classes. Even after so many requests opposite parties did not take any step to resolve the grievance of complainant. There is clear deficiency of service and unfair trade practice from their side of opposite parties. Hence this complaint.
2. Prayer of the complainant is that he is entitled to get a new mobile phone instead of the defective mobile phone, Rs. 10,000/- (Rupees Ten thousand only) for the financial loss caused to complainant and Rs. 25,000/- (Rupees Twenty five thousand only) as compensation for the deficiency in service and unfair trade practice from the side of opposite parties.
3. On admission of the complaint notice was issued to the opposite parties andnotice served on them and opposite party No.2 appeared before the Commission through their counsel and filed version. But opposite party No.1 did not turn up. Hence they set exparte.
4. In their version, the authorised officer of opposite party No.2 stated that, he knows the facts and circumstances of the case and competent to file version and affidavit on behalf of second opposite party. He again stated that they are the manufacturer of state of the art mobile phone since 2008 and has been the market player among leading mobile phone brands all over the world. They manufacture mobile phone using the latest technology and design. Mobile phones are the combination of multiple small electronics devices such as various integrated circuits, display boards, main boards and battery which requires careful maintenance. They provide one year warranty to all the mobile handsets manufactured by it through its authorised service centres subject to the terms and conditions mentioned in its warranty policy. They admitted that complainant had purchased one mobile phone from opposite party No.1 shop on 18/01/2020. But complainant does not have a case that the handset was not working properly since the date of purchase. Hence considering this aspect alone, the question regarding patent defect is ruled out.
5. They again stated that as per the averments in the complaint, the said handset was brought before the first opposite party on 30/11/2020. The complainant had informed the first opposite party then and there that the handset was taken to a local mobile shop, where they had opened the handset and further instructed the complainant to take it to the authorised service centre. They again stated that it is specifically mentioned that the damages which may occur due to wear and tear due to the rough use by the customer is exempted from warranty. When the handset was received at the service centre of second opposite party, it was seen that the handset was tampered and the same was opened by an unauthorised third party other than the authorized service dealer. The warranty terms and conditions clearly prescribe that in such cases where a handset was tampered by an unauthorized third party, the warranty will be denied. Complainant had suppressed this vital and cogent fact in his complaint and hence the complaint is liable to be dismissed.
6. They again stated that then they checked the handset, it was specifically informed to the concerned person that the handset was found tampered and hence the particular handset is not eligible for warranty and it was informed that the handset could be serviced at the cost of complainant due to rejection of warranty due to the act of complainant himself. They again stated that the alleged complaint arose after 10 months from the date of purchase of the handset. This delay in filing the complaint itself casts a shadow of doubt in the bonafides of the complainant. The complainant does not have a case in his complaint that the handset was not working properly during this period and this aspect substantially proves that there is no patent defect in the said handset. It is further submitted that the allegations raised by the complainant could be the result of careless use of a mobile handset or could occurred due to overcharging of the phone, dropping of the phone etc. To ascertain this aspect an expert evidence is necessary, which this complainant has failed to produce.
7. They again stated that complainant had admitted that the handset was initially serviced by a third party and this alone shows that the complainant stands before this Hon’ble Commission with unclean hands and has filed this complaint to take undue advantage of the process of law by alleging false and baseless allegations to cover his fault to abide by the terms and conditions of warranty as prescribed by the manufacturer. They denied the averment of the complainant in the complaint about the manufacturing defect of the above mobile phone. They again stated that the delay in filing the complaint itself answers the question of patent defect in favour of second opposite party and it is further to be noted that the complainant does not have a case anywhere that this complaint is filed due to the deficiency in service from the side of opposite parties. Moreover production of the original handset is necessary for deciding the issue and only an expert in the subject matter can ascertain the aspect where the phone was tampered before making the same available at the authorised service centre of the second opposite party. They again stated that the handset owned by the complainant, when brought to the authorised service centre was opened and the information label which mentions the IMEI No. and other details were also torn away. Complainant was informed that the warranty will be rejected for this reason and the phone was returned without issuing a Consumer Work Order Card. Hence the complaint may dismiss with cost.
8. In order to substantiate the case of the complainant, he filed an affidavit in lieu of Chief examination and the documents he produced were marked as Ext. A1 and A2. Ext.A1 is the original tax invoice given by opposite party No.1 to complainant on 18/01/2020, Ext.A2 is the warranty details of the above mobile phone. Thereafter opposite party No.2 also filed affidavit and documents and the documents they filed are marked as Ext.B1 series. Ext.B1 (a) is the true copy of authorisation letter authorising Mr. Dimple. M to give evidence on behalf of 2nd opposite party. Ext. B1(b) is the true copy of the warranty terms and conditions.
9. Heard complainant and opposite party No.2. Perused complaint, version, affidavits and documents. The following points arise for consideration:-
- Whether there is any deficiency of service and unfair trade practice on the part of opposite parties.
- If so, reliefs and cost.
10. Point No:1 :-
Case of the complainant is that, the OPPO Mobile phone worth Rs. 8,061/- bought by him on 18/01/2020 from opposite party No1 shop got damaged within the warranty period. Opposite parties demanded Rs.6500/- for repairing the mobile phone during the warranty period. Complainant purchased this mobile phone for his grandson for attending the online classes, but opposite parties did not take any steps to resolve the grievances of complainant.
11. But opposite party No.2 admitted that complainant had bought the mobile phone from their authorised shop and they are the manufacturers of the said mobile phone. They again contented that the handset was taken to a local mobile shop and they had opened the handset. Thereafter complainant had given the mobile phone to the authorised service centre. They again contented that the delay in filing complaint itself the answered question of patent defect in favour of them and there is no expert evidence in this matter.
12. From 2020 onwards the classes were conducted to students through online due to Covid pandemic issues. At that time complainant, the grandfather bought the mobile phone to his grandson for attending online classes for his studies. But the mobile phone, he had bought on 18/01/2020 had damaged on 16/11/2020. Complainant purchased the above OPPO Mobile phone worth Rs.8,061/- from opposite party No.1 shop situated at Kottakkal. Opposite party No.2 also admitted that opposite party No.1 is the authorised shop for the mobile phones manufactured by them. None the less as per Ext.A1 the tax invoice clearly shows the seal of opposite party No1. The seal in that document shows that Selfie Spot opposite party No.1 is the OPPO exclusive showroom.
13. As per complaint, it is clear that the mobile phone mentioned in the complaint was not functioning on 16/11/2020. That means within one year from the date of purchase of the mobile phone by the complainant. He again stated that, he had approached opposite party No.1 and entrusted the mobile phone to them for repairing the same. Thereafter on 30/11/2020, they demanded Rs.6500/- for repairing the mobile phone. From the documents, we are on the opinion that complainant bought the mobile phone on 18/01/2020 and complainant entrusted the mobile phone to opposite party No.1 and they demanded Rs.6500/- on 30/11/2020 that means within one year from the date of purchase. Opposite party No.2 in their version Para 2 clearly stated that as the manufacturer, they provided one year warranty to all the mobile handsets manufactured by it through its authorised service centre subject to terms and conditions mentioned in its warranty policy for mobile handsets. They clearly admitted that the mobile phones manufactured by them including complainant’s mobile phone had one year warranty. The mobile phone of complainant became defective within 10 months of purchase. From the documents and from the version and affidavit it is clear that the above said mobile phone bought by complainant got damaged within 10 months of its purchase. That means during the warranty period.
14. Another contention of opposite party is that, complainant does not have a case that the handset was not working properly since the date of purchase. But we are on the opinion that there is no such case for the complainant that the handset got damaged from the beginning. He clearly stated that he had purchased the mobile phone on 18/01/2020 and phone had switched off on 16/11/2020. There is no discrepancy regarding that aspect.
15. The main contention of opposite party No.2 is that when handset was brought to first opposite party shop on 30/11/2020, then complainant had informed them that the handset was given to a local mobile shop where they had opened the handset and instructed the complainant to take it to the authorised service centre. But no document or a piece of paper which shows the contention raised by opposite party No.2 was true. They are not produced documents to prove their contention regarding that serious aspect. Complainant had no such case in his complaint and affidavit. Opposite party No.2, the manufacturer can easily submit documents or an expert opinion to prove that technical aspect. Opposite party No.2 also stated without proof that complainant had given the phone to a local shop thereafter he had approached the authorised service centre. If the local mobile technician had opened the mobile phone, opposite party No.2 can easily prove that aspect through expert or through documents because they are the manufacturers who knows very well about the handset they made.
16. Another contention of opposite party No.2 is that, the damage which may occurred due to wear and tear due to the rough use by the customer is exempted from warranty. They again stated that when the handset was received at their service centre, it was seen that the handset was tampered and the same was opened by an unauthorised third party other than the authorised service centre. Hence they denied the warranty. But we are surprised that how can an authority like opposite party No.2 submit this kind of averments before the Consumer Commission without legal proof or evidence. There is no evidence about the damage which caused due to wear and tear. They again stated that the handset owned by complainant, when brought to the authorised service centre was opened and the information label which mentions the IMEI No. and other details were also torn away. Complainant had suppressed this fact. But we are on the opinion that the poor complainant does not know about the IMEI number and other details of the mobile phone. When opposite party No.2 raised such contention, it is their duty to prove the technical aspects of the mobile phone by an expert. The onus of proof lies in the manufacturer that means opposite party No.2 to prove these kinds of technical aspects by an expert. They can file petition to appoint an expert to prove the contentions raised by them. They can file petition for directing the complainant to produce the mobile phone before the Commission for inspection by the expert appointed by the Commission as per the request of opposite party No.2.
17. In this matter, complainant had produced the defective mobile phone before
the Commission. At that time it was not functioning. Other details and technical aspects regarding the mobile phone have to be proved by the opposite parties themselves. There is no case for complainant that he had approached a local mobile technician for repair. He clearly stated that 16/11/2020 mobile was not working in between the online classes attended by his grandson and he entrusted the mobile phone to opposite party No1 for repair. On 30/11/2020 opposite party No1 contacted complainant and demanded Rs.6500/- for repairing the mobile phone. To demand money, opposite party No1 contacted complainant after 15 days. On that aspect it is clear that after receiving the mobile phone opposite party No1 contacted the opposite party No.2, the manufacturer for getting details. Then opposite party No.2 rejected the claim of complainant and returned back the mobile phone to opposite party No.1. Hence it is clear that opposite party No.2 rejected the warranty of the mobile phone and it is their duty to submit before the Commission with evidence that the mobile phone in question was opened by a third party other than the service centre.
18. Another contention of opposite party No.2 is that, production of original handset is necessary for deciding the issues and only an expert in the subject matter can ascertain the aspects where the phone was tampered before making the same available at the authorised service centre of second opposite party. On verification it is clear that on 13/04/2021 opposite party No.1 was absent and set exparte and opposite party No.2 filed vakkalath and version on that day. On 26/10/2021 complainant filed affidavit and documents and on that day the case posted for affidavit of opposite party No.2. Thereafter till 01/04/2022 there was no representation from the side of opposite party No.2 and not filed affidavit. On that day case posted for orders on 22/04/2022. Again on 04/4/2022 opposite party No.2 filed a petition as per IA 302/2022 to set aside the exparte order without giving notice to complainant . On 22/04/2022, IA 302/2022 allowed on cost of Rs. 2000/-.
On that day also opposite party No.2 did not file affidavit and documents to prove their case. On 06/07/2022 they paid the cost but affidavit not filed. Thereafter on 12/08/2022 opposite party No.2 filed affidavit and documents. From the documents it is clear that opposite party No.2 was absent for so many posting of the case and complainant was present on those days. In every postings of the case complainant bring the mobile phone with him and he represented the same before the Commission. Opposite party No.2 can file petition for directing the complainant to produce the mobile phone before the Commission and to direct him to handover the mobile phone to them for inspection. But no such step was taken by opposite party No.2.
19. Another contention of opposite party No.2 is that the alleged complaint arose after 10 months from the date of purchase of the handset. They contented that this delay in filing the complaint itself casts a shadow of doubt. But we are on the opinion that, from the complaint itself it is clear that the mobile phone was not working on 16/11/2020 during the online classes attending by his grandson. Then how can he file a complaint before 16/11/2020. So the contention regarding the delay in filing the complaint is not justifiable contention raised by opposite party No.2. Moreover opposite party No.2 stated that the allegation raised by complainant could be the result of the careless use of mobile handset or could occur due to overcharging of the phone, dropping of the phone etc. But opposite party No.2 did not prove that there is careless use of mobile phone by complainant or the above said phone had dropped down or it was overcharged. Complainant only knows that the phone purchased by him for his grandson got damaged within 10 months of its purchase. It is the duty of opposite party No.2 to prove that the damage were caused due to the above mentioned reasons stated by them.
20. From the above facts we are on the opinion that the mobile phone purchased by the complainant got damaged during the warranty period. Opposite party No.1 demanded Rs.6500/- for repairing the mobile phone when warranty exists. Opposite party No.2 also admitted that there is one year warranty for the above said mobile phone which complainant had purchased. During warranty period opposite parties demanded money for repairing the mobile phone. It is a clear deficiency in service and unfair trade practice from their side. Moreover during Covid pandemic season all the students are attending their regular school classes through mobile phone complainant’s grandson also using the mobile phone for his online classes. For that purpose the grandfather complainant had purchased the mobile phone for his grandson. Due to the defective mobile phone the child was unable to attend the online classes. Opposite parties did not take steps to rectify the defect of the mobile phone. For an ordinary person an amount of Rs. 8061/- for a mobile phone is somewhat high. Due to the defect of the mobile phone the studies of complainant’s grandson was interrupted. It is very evident from the complaint filed by complainant. As a grandfather it is sure that it will affect the feeling of complainant. As per Ext.A2 and Ext B1 (a) documents clearly shows the warranty details of the above phone. In that documents there mentioned the terms of warranty for the above product is applicable during the term of 12 months from the date of purchase. Hence there is clear deficiency of service and unfair trade practice from the side of opposite parties as alleged in the complaint by the complainant. Hence we allow this complaint holding that opposite parties are deficient in service.
21. We allow this complaint as follows:-
- The opposite parties are directed to refund Rs. 8,061/-(Rupees Eight thousand and sixty one only) the cost of the mobile phone to the complainant.
- The opposite parties are directed to pay compensation of Rs. 10,000/-(Rupees Ten thousand only) to the complainant on account of deficiency in service on the part of opposite parties and thereby caused mental agony, physical hardships and sufferings to the complainant.
- The opposite parties also directed to pay Rs. 3000/- (Rupees Three thousand only) as cost of the proceedings.
If the above said amount is not paid to the complainant within 30 days from the date of receipt of copy of this order, the opposite parties are liable to pay the interest at the rate of 12% per annum on the said amount from the date of receipt of the copy of this order till realisation.
Dated this 15th day of December, 2022.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
APPENDIX
Witness examined on the side of the complainant : Nil
Documents marked on the side of the complainant : Ext.A1 & A2
Ext.A1 : Original tax invoice given by opposite party No.1 to complainant on
18/01/2020.
Ext.A2 : Warranty details of the above mobile phone
Witness examined on the side of the opposite party : Nil
Documents marked on the side of the opposite party : Ext. B1 (a) & (b)
Ext.B1 (a) : True copy of authorisation letter authorising Mr. Dimple.M to give
evidence on behalf of 2nd opposite party.
Ext. B1(b) : True copy of the warranty terms and conditions.
MOHANDASAN K., PRESIDENT
PREETHI SIVARAMAN C., MEMBER
MOHAMED ISMAYIL C.V., MEMBER
