BEFORE THE DISTRICT FORUM:KURNOOL
Present: Sri. K.V.H.Prasad B.A.LL.B., President
And
Smt. C.Preethi, M.A.LL.B., Lady Member
Friday the 16th day of May, 2008
C.C.No. 12/08
Between
Mr. K.T. John Paul, S/o. Jashua,
H.No. 40-265-A, Bangarupeta, Kurnool. … Complainant
Versus
1.Sri.G. K. Venkatesh, Proprietor, G.K.Mobiles (Computerised Service and sales)
Shop No.4, Ground Floor, Opp. M.G. Brothers Petrol Bunk, Abdullah Khan Estate, Kurnool.
2. The Managing Director, Nokia India Private Limited, (Importers of Products from Nokia Telecommunications Limited, Beijing,
2nd Floor, Commercial Plaza, Radison Hotel, National High Way No.8, Mahipalpur, New Delhi-37 … Opposite Parties
This complaint coming on this day for orders in the presence of Sri.B.Deva Prasad, Advocate, for complainant, and Sri.M.Indra Vijaya Rao, Advocate for opposite party No.1 and Sri.D.Narendra Reddy, Advocate for opposite party No.2 and upon perusing the material papers on record, the Forum made the following:-
ORDER
(As per Sri. K.V.H.Prasad, President)
C.C.No. 12/ 08
1. This case of the complainant is filed U/S 10 & 11 of C.P. Act 1986 seeking a joint and several direction on the opposite parties for replacing the defective Mobile Handset with a defect free one or refund its cost of Rs.15,500/-, and a compensation of Rs.10,000/- and an amount of Rs.5,000/- as cost of litigation along with other reliefs which the exigencies of the case provide alleging the purchase of Nokia Cell Phone of Model NOKIA N70-Music, /I.M.E.L. 351863016351245 of Batch No.06704003820660C4 G2 x C 33354 for a sum of Rs.15,500/- on 7-4-2007 from the opposite party No.1, who is the dealer of opposite party No.2, under one year warranty being taken away by of assurances of its excellent performance and thereafter in the September 2007 the said Cell Phone getting problem of light-blinking and on its attending by the opposite party No.1 in the month of October repetition of the same trouble in addition to a defect in memory card feeding and reading and on its attending by the opposite party No.1 and returning to the complainant on 7-12-2007 the repetition of same defects by 10-12-2007 and so the defects were inherent and not rectifiable one and thereby alleging the sale of defective goods and deficiency of service of the opposite party in rectifying the defects.
2. In pursuance of the receipt of the notice of this forum as to this case of the Complainant the opposite parties contested the case denying the truth in complaint averments, cause of action and jurisdiction point and thereby any of their liability for complainant’s claim alleging further the contravention of the terms and conditions of the warranty by the complainant in getting rectification of the defects if any in the purchased handset .
3. In substantiation of the contentions while the complainant side relied upon his sworn affidavit in reiteration of his case and the documents relied which are marked for the appreciation as Ex.A1 to
A9, the opposite parties neither caused any interrogatories to test the veracity of the complainants supra material nor evinced any proper interest in furthering the matters in spite of several adjournments except filling the written versions denying their liabilities and so constrained this Forum for the disposal of the case on merits.
4. Hence the point for consideration is whether the complainant is entitled to the reliefs claimed.
5. The Ex.A1 is the cash bill No. 3467 dated 7-4-2007 issued by G.K. Mobiles Computerized Service and Sales Shop No.4, Ground Floor, opposite M.G. Brothers Petrol Bunk, Abdullakhan Estate, Kurnool -1 (i.e., the Opposite party No.1) in favour of John Paul (i.e., Complainant ) envisaging therein the purchase of Nokia Cell Phone of Model Nokia N70-Music,/I.M.E.L. 351863016351245 of Batch No. 06704003820660C4 G2 x C 33354 ( i.e. Ex.A9 ) for a sum of Rs.15,500/- on 7-4-2007 by the complainant. There being any denial of the purchase envisaged above from the opposite party side the factum of said purchase remains in favour of the complainant as envisaged under Ex.A1.
6. The Ex.A2 is office copy of legal notice dated 12-12-2007 caused to the opposite parties 1 & 2 setting therein the grievances of the complainant consequent to purchase of said Mobile Phone and the conduct of the opposite parties in their failure to rectify them and his demand for replacement with defect free set or refund of its cost compensation of Rs.10,000/- etc.,. The said notice sent to the opposite parties 1 & 2 by Registered Post receipt Nos.1955, 1956 vide Ex.A3 and A4 were acknowledged by the opposite parties under Ex.A5 and A6 ( i.e., postal acknowledgements). The fact of its receipt was reflected in the Ex.A7 reply notice caused at the instance of the opposite party No.1. Hence the Exs A2 to A6 are held proved by the complainant as to their causing on the opposite parties.
7. While the opposite party No.2 in this case being the Managing Director Nokia India Private Limited (Importers of products from Nokia Telecommunications Limited Beijing ) 2nd floor, Commercial Plaza, Radison Hotel, National Highway No.8, Mahipalpur , New Delhi – 37 the vakalath that is filed in this case was executed by an alleged authorized signatory for Nokia India Private Limited without disclosing the identity particulars of said authorized signatory and any authorization infavour of said authorized signatory. Hence this opposite party remains failed in making its valid representation for any proper contest on its behalf in this case and thereby the said conduct of it is amounting to abstaining to the legal proceedings. The written version filed on behalf of said opposite party No.2 neither reveals that it was filed by any authorized signatory of opposite party No.2 nor the verified affidavit enclosed to the above said written version, said to have been verified by Ms.Preethi Varma (Process and Quality Executive-Service Operation) Nokia India Private Limited having its Registered Office at 5F, Tower A & B, Cyber Green , Cyber City , Sector 25A Gurgaon Haryana ,places any such authorization infavour of said affidavitor to depose on behalf of the said opposite party No.2. Therefore there remains any valid written version of the opposite party No.2 in this case effecting the case of the complainant.
8. The written version of the opposite party No.1 denies the truth in the complainant’s case and any deficiency on its part and thereby its liability taking reference to the terms and conditions of warranty. Except to the extent the opposite party No.1 never felt any necessity of causing interrogatories on the complainant’s sworn affidavit for testing the veracity of the complainant nor filed any sworn affidavit in support of its written version contentions and discrediting the complainant’s side material. Hence there appears any valid contest on the side of the opposite party as in the circumstance stated above his contest of the case appears to be very formal without any seriousness.
9. The Ex.A8 is users guide of Nokia Nseries. The page No.118 of Ex.A8 concerns to manufacturers limited warranty under the caption how to get warranty service it says a call to the Nokia Centre or returned the product or affected part to a Nokia Care Centre or Nokia Designated Service Centre. The information which about which could be found at local nokia web pages where available. By the above it remains clear that the Ex.A8 is not providing the locations of said care centers or designated service stations except driving the purchaser to the Technical Assistance of Web Site which may be accessible only to those having knowledge of computer operations. Therefore the Ex.A8 is remaining deficient of providing the required particular information as to care centers and service stations to an ordinary person, who purchases there mobile set for operation of which no computer operation knowledge is essential. Therefore the opposite parties cannot take shelter that the complainant has not followed the procedure stated above in Ex.A8 in rectification of the defects if any in his mobile set and there by can claim any exemption from their liability. When the Ex.A8 is not furnishing any such essential information for the purchasers for their approach for rectification of any defects in the purchased mobile sets, the condition No.5 mentioned in Page No.119 of Ex.A8 under the caption what is not covered under that warranty to the effect that the limited warranty does not apply if the product has been opened, modified or repaired by any one other than an authorized service centre etc., does not appear to be a valid one with any binding force on the purchaser and to the benefit of the manufacturing company which issued said manufacturers limited warranty, especially under those circumstance it is but natural to a purchaser to approach the dealer for rectification of defect as he is only a known source to him from the fact of its purchase. Therefore the opposite parties can not take shelter of non approach, of the complainant to care centre/ service station for rectification of defects in the purchase set.
10. Even though there is a denial in Ex. A7 reply of opposite party No.1 of complainant’s grievances taken in Ex.A2 and in the written version of opposite party No.2 , there being any interrogatories to the sworn affidavit contentions of the complainant testing its veracity the sworn affidavit contentions of the Complainant remained unrebutted and thereby creating any liability on the complainant to submit the so called defective set Ex.A9 to any further examination as contemplated under section 13 (1) ( c ) of consumer protection Act especially when there is any possibility for procuring any such documentary evidence as to the occurrence of said defect under the above circumstances.
11. In the result of above discussion, as there appears bonafidies in the contentions and grievances of the complainant as to the defect in the purchased Mobile Hand set and deficiency of service on the part of the opposite parties in rectifying those defects and in paying a deaf ear to the legitimate demands of the complainant, the case of the complainant is allowed directing the opposite parties 1 and 2 jointly and severally either to replace the said Ex.A9 defective Mobile set which the complainant purchased with a defect free mobile set of same brand taking return of the Ex.A9 defective set or to refund the cost of said set mentioned in Ex.A1 taking return of the Ex.A9-defective set. The opposite parties also to pay at their joint and several liability an amount of Rs.5,000/- as compensation for the mental agony suffered by the complainant at the lapsive conduct of the opposite parties. As the opposite parties by their indifferent conduct driven the complainant to the Forum for redressal of his consumer grievances the opposite parties shall also pay at their joint and several liability a sum of Rs.2,000/- as cost of this case. The time given to the opposite parties for compliance of the directions of this order is one month from the date of receipt of this order. In default the supra stated award shall be payable by the opposite parties at their joint and several liability with interest at 9% p.a from the date of default till realization.
Dictated to the Stenographer transcribed by her corrected and pronounced by us in the open bench on this the 16th day of May 2008.
Sd/- Sd/-
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
Witnesses Examined
For the complainant : For the opposite parties :
-Nil- - Nil-
List of exhibits marked for the complainant:-
Ex.A1. Bill for purchase of Cell dated 7-4-2007 of OP.No.1.
Ex.A2. Office copy of legal notice dated 12-12-2007.
Ex.A3. Postal receipts dated 12-12-2007.
Ex.A4. Postal receipts dated 12-12-2007.
Ex.A5. Postal acknowledgements.
Ex.A6. Postal acknowledgements.
Ex.A7. Reply notice dated 28-12-2007 of OP.No.1.
Ex.A8. User’s Guide of Nokia N-Series.
Ex.A9. Defective Cell Phone.
List of exhibits marked for the opposite parties:
-Nil-
Sd/- Sd/-
MEMBER PRESIDENT
Copy to:-
1. Sri. B Deva Prasad, Advocate, for complainant.
2. Sri. M. Indra Vijaya Rao, Advocate, for opposite party No.1
3. Sri. D. Narendra Reddy, Advocate, for opposite party No.2.
Copy was made ready on:
Copy was dispatched on:
Copy was delivered to parties:
