IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE <br /> PRESENT: 1. Shri.D.Krishnappa<br /> B.A., L.L.B - President <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> CC 176/08 DATED 29-08-2008<br /> ORDER<br /> <br /> Complainant M.Mohanraj, S/o Late Mahadevi, R/o D.No.484, 16th Main, 29th Cross, J.P.Nagara, Mysore. Rep. by GPA Holder S.Byrappa, S/o Late B.Siddaiah, R/o D.No.85, 2nd Main, 13th Cross, Vidyarnyapuram, Mysore.<br /> (By Sri.Dileepkumar., Advocate)<br /> Vs. <br /> Opposite Parties 1. Senior Manager, Nokia Care, Head Office at No.17, Chamaraja Double Road, Mysore-24.<br /> 2. The Proprietor, Swastik, The Electronic World Nokia Priority Dealer & Care Centre, no.127, D.Devaraja Urs Road, Mysore.<br /> 3. Service Officer / Service Head, Nanies Enterprises (Nokia Care), Nokia Service Centre, Kalidasa Road, Mysore.<br /> 4. Service Officer/Service Head, Revanas Nokia Care, Nokia Service Centre, New Kantharaja Urs Road, Mysore.<br /> (By Sri.Sudharshan, Advocate for O.P.1,2, and 4 and Sri B.Paneesh Kumar, Advocate for O.P.3)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 17.06.2008<br /> Date of appearance of O.P. : 09.07.2008<br /> Date of order : 29.08.2008<br /> Duration of Proceeding : 1 MONTH 20 DAYS<br /> <br /> <br /> PRESIDENT <br /> <br /> MEMBER<br /> MEMBER<br /> <br /> Sri.D.Krishnappa,<br /> President<br /> <br /> 1. The grievance of the complainant in brief against the Opposite parties is, that the first Opposite party is the Sole Supervising Authority of supply and distribution of Nokia Mobile Handset in Mysore. The second Opposite party is the dealer of the mobile set and third and fourth Opposite parties are the service centers of Nokia Mobile company. That he on 10.03.2006 purchased Nokia mobile model No.3230, EMI No.357099009077877 for Rs.11,600/- from the second Opposite party. That he after purchasing the same within a short span developed locking up, not responding, it was not getting switched off, blank display, phone hang, keypad problem etc., Then he handed over that handset to third Opposite party for repair on 10 to 12 occasions, but he could not set right the problems and directed him to approach the fourth Opposite party. Accordingly in the 3rd week of December 2007 he contacted fourth Opposite party and handed over the set to him on 27.12.2007 for solving the problems. But till date despite approaching the fourth Opposite party, they have not returned the mobile set after repair and even not responding, then he got issued a legal notice to fourth Opposite party on 11.02.2008, but only third Opposite party to whom he also got issued a legal notice replied having provided good service. Attributing that the Opposite parties have failed to provide efficient service has prayed for a direction to the Opposite parties to give him a new mobile set of the same brand and to award compensation of Rs.50,000/- by way of damages and cost.<br /> 2. The first, second and fourth Opposite parties who appeared through an advocate, later on failed to file their version and to defend the complaint. The third Opposite party has filed version through his advocate by contending that the complaint is not maintainable and that the complainant is a businessman is not within his knowledge denying that there is warranty of 2 years to the mobile set purchased by the complainant has contended that the warranty period is only for one year. Further contending that the complainant had only approached him on 2 to 3 occasions for repair of the mobile set and not on 10 to 12 occasions and stated that when ever the complainant approached him he has given the best service and denying that he had told the complainant to approach fourth Opposite party for further service and further denying all other allegations has prayed for dismissal of the complaint.<br /> 3. In the course of enquiry into the complaint allegations, the complainant’s power of attorney holder has filed affidavit evidence reproducing what they have stated in their complaint. The third Opposite party through his Manager has filed affidavit evidence reiterating their contentions canvassed in the version. The complainant has produced a receipt for having purchased the mobile set from second Opposite party and Xerox copies of job cards issued by third and fourth Opposite parties. The third Opposite party has produced the Nokia set users guide. Heard the counsel for the third Opposite party and perused the written arguments filed by the counsel for the complainant and perused the records.<br /> 4. On the above contentions, following points for determination arise.<br /> 1. Whether the complainant proves that the mobile set sold to him by second Opposite party is a defective one and that third and fourth Opposite parties have failed to provide efficient service by repairing it and thereby the Opposite parties have caused deficiency in their service?<br /> 2. To what relief the and against whom the complainant is entitled to?<br /> 5. Our findings are as under:-<br /> Point no.1 : Proved against 2nd and 4th Opposite parties..<br /> Point no.2 : See the final order.<br /> <br /> REASONS<br /> <br /> 6. Point no. 1:- The claim of the complainant that he had purchased a mobile handset of Nokia company as described in the complaint on 10.03.2006 from second Opposite party for a total sum of Rs.11,600/- is not in dispute as none of the Opposite parties have denied it. The fact has been proved by the complainant through his power of attorney holder by filing affidavit evidence and also by producing the bill.<br /> 7. The complainant further in his complaint and affidavit evidence has stated that within a short span of time he approached the third Opposite party when the mobile set developed many problems, but the third Opposite party did not provide effective service by repairing the handset, but directed him to fourth Opposite party. The third Opposite party has denied that the complainant had approached him 10 to 12 times, but admitted that he approached on 2 to 3 occasions and at all time he had rendered good service. The complainant has produced the job cards issued by third Opposite party dated 09.02.2007, 13.02.2007 in which there is a mention of the problems that cropped up in mobile set, but third Opposite party has not taken the signature of the complainant in that complaint having had satisfied with the repairs or service rendered by him. Therefore, it cannot be said that the third Opposite party had rendered efficient service. Even that contention cannot be accepted because if the third Opposite party had effectively repaired the set on first or second occasion there was no need for the complainant to approach him again and the fourth Opposite party which leads to an inference that the defect in the mobile set was not completely cured by the third Opposite party and that prompted the complainant to approach the fourth Opposite party.<br /> 8. It is seen further from the complaint and affidavit of the power of attorney holder of the complainant, the complainant thereafter on 19.12.2007 gave the mobile set to fourth Opposite party for repair and then again on 27.12.2007 for attending the same problems. The complainant further contended that the fourth Opposite party who received the mobile set on 27.12.2007 did not return the same to him after repairing it or even otherwise and sworn to affidavit that the fourth Opposite party himself has retained the handset and failed to respond to him when he approached him many times. This grievance of the complainant with regard to the defect in the handset and deficiency in the service of fourth Opposite party is apparent and same has not been controverted. The complainant has contended that there is 2 years of warranty to the mobile set, but the counsel for third Opposite party has produced the users guide wherein there is warranty period of one year to the handset purchased by the complainant and not 2 years as claimed by him. Even then it could be seen that the problem in the handset cropped up within one year from the date of its purchase. As already stated by us, the mobile set was purchased on 10.03.2006 and the affidavit of the power of attorney holder of the complainant reveal that within short span the problem developed in the mobile set, therefore it was given for repair to third Opposite party has remained uncontroverted. It is even proved through job card dated 19.12.2007 and 13.02.2007 and further the job cards of fourth Opposite party also reveale that the mobile set was given to the third and fourth Opposite party within the warranty period and even fourth Opposite party was not able to repair that mobile set to working condition. With this, it is clear that the mobile set sold by the second Opposite party in favour of the complainant proved to be defective one, which was intrensic and that could not be set right probably fourth Opposite party must have found that the mobile set given by the complainant was not repairable because of the manufacturing defect. <br /> 9. The complainant has not made the manufacturer of the Nokia set as a party, first Opposite party is said to be a Controlling authority, but no deficiency of service is attributed against it. Even according to the complainant, third Opposite party finding that mobile set could not be repaired stated to had told the complainant to approach the fourth Opposite party and he did not retain that set with him in the guise of repair, therefore we find no deficiency in the service of the third Opposite party as he was not able to attend the problem. The second Opposite party who sold the mobile set which developed problem within the warranty and the fourth Opposite party the servicing agency of the manufacturer after receipt of the mobile set retained with them either without attending to repair or in not returning it are alone could be held as deficient in their service and liable to compensate the complainant. In this regard, we rely upon decision reported in 2008 III CPR page 37 National Commission and another decisions reported in 2008 (III) CPR National Commission page 85 and answer point no.1 accordingly and pass the following order:- <br /> ORDER<br /> <br /> 1. The complaint is allowed against the second and fourth Opposite parties and those Opposite parties are held jointly and severally liable to deliver the brand new Nokia mobile set model No.3230, the model which the complainant had purchased and if that model is not available any other model of the choice of the complainant and if there is variations in the rate of the mobile set if it is on the higher side, the complainant shall pay the balance excess amount and if it is a set worth less than Rs.11,600/- the balance amount shall be paid to the complainant by second and fourth ;Opposite parties and that shall be done within 30 days from the date of this order, failing which the second and fourth Opposite parties shall pay Rs.50/- p.d. for each of the days delay till the order is complied.<br /> 2. The second and fourth Opposite parties shall also pay Rs.2,000/- as damages for inconvenience and mental agony of the complainant within 30 days from the date of this order, failing which they shall pay interest at 9% p.a. from the date of this order till the date of payment.<br /> 3. The second and fourth Opposite parties shall also remit a sum of Rs.2000/- to the Legal Aid Account of this Forum.<br /> 4. The complainant is entitled to cost of Rs.500/-.<br /> 5. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 29th August 2008)<br /> <br /> <br /> <br /> <br /> <br /> (D.Krishnappa) <br /> President <br /> (Y.V.Uma Shenoi)<br /> Member<br /> (Shivakumar.J.)Member<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />