BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.
Dated this the 27th day of April 2018
Filed on : 02/06/2016
PRESENT:
Shri. Cherian K. Kuriakose, President.
Shri. Sheen Jose, Member.
Smt. Beena Kumari V.K. Member.
CC.No.310/2016
Between
Sagi K.A., : Complainant
S/o. K.J. Antony, (By Adv. Surya J, Kumaran Arcade,
Kottackal house, Pottakuzhy, 1st Floor, power house road, Kochi
Kochi. Pin-682 018)
And
1. Sysmantech – HP world, : Opposite parties
Babus Estate, (party-in-persons)
Madhava Pharmacy Junction,
Banerji road, Ernakulam 682 018,
Rep. by its Proprietor.
2. Ensure Support Service
(India) Ltd., HP Authorised
service centre, 1st floor
No. 39/3723, SR Complex,
Ravipuram road,
Ernakulam-682 016,
rep. by it Managing Director.
3 . HP Mobile world, 5f,
Salarpuria GR Tech Park,
Khatha No. 69/3, Mahadevapura
CMC 5&9 FL, Whitefield road,
Bangalore-560 066,
Karnataka,
rep. by its Authorized
Signatory.
O R D E R
Cherian K. Kuriakose, President.
Complainant's case
2. The complainant purchased one HP mobile phone on 19-04-2014 manufactured by the 3rd opposite party, on payment of its price Rs. 21,895/- with one year warranty. Within one month of its purchase the phone fell down and the touch screen was broken. The complainant approached the 2nd opposite party for replacing the touch screen on payment of Rs. 5,647. 96 paise after receiving the phone on completion of the repairs he found that the phone was not charged and therefore he approached the 2nd opposite party with a complaint of non charging. He approached the 2nd opposite party again to get the phone repaired and to get the complaints of non-charging set right. However, the 2nd opposite party was not able to rectify the defects. According to the complainant the non-charging of the phone was due to manufacturing defect and the 2nd opposite party was unable to repair the same due to their poor workmanship. The defects with respect to the charging occurred within the warranty period and the 2nd opposite party had tactfully delayed the service and the phone continuous to be in defective condition. The complainant therefore prayed for replacement of the defective phone with compensation and costs.
3. Notices were issued to the opposite parties. The 2nd and 3rd opposite parties filed separate versions.
4. The second opposite party, the service provider contended in it's version that there was physical damage to the product and that the allegation of manufacturing defect has to be settled between the consumer and the manufacturer, as the question of warranty is to be determined by the 3rd opposite party-manufacturer. The 2nd opposite party is neither manufacturer nor the dealer. Since the 2nd opposite party is only a service provider, no liability can be attributed to the 2nd opposite party and seeks exoneration.
5. The 3rd opposite party manufacturer filed a separate version contending inter-alia as follows.
6. The product manufactured and marketed by the 3rd opposite party and approved by the appropriate authority certifying its quality and performance. The complainant had approached the Forum by suppressing material fact. The complainant did not obtain an expert report from a recognized and notified laboratory U/S. 13 (1) of the Consumer Protection Act and deficiency in service without any documentary evidence cannot be attributed to the manufacturer. In the absence of expert report the complainant has not established his case of manufacturing defect mobile phone and the complaint is liable to be dismissed. The manufacturer is also not entitled to honour the warranty in case of misuse, abuse, contamination and lack of maintenance with respect to the product manufactured by them. In the instant case, the phone had fallen down as admitted by the complainant and display was changed. Therefore, there was no manufacturing defect for the phone and the 3rd opposite party is not liable to compensate the complainant as prayed for.
7. The following issues were settled for consideration
Whether the complainant had proved that the opposite parties had committed deficiency in service as alleged?
If proved what must be the amount of compensation to be awarded?
Reliefs and costs
8. The evidence in this case consists of the documentary evidence Exbt. A1 to A5 on the side of the complainant and Exbt. B1 on the side of the opposite party. The 3rd opposite party-manufacturer did not adduce any evidence.
9. Issue No. i&ii. There is no dispute to the fact that the complainant purchased the phone on 19-04-2014 which was manufactured by the 3rd opposite party. The complainant has fairly admitted that the phone fell down and the touch screen was broken. He paid Rs. 5,647.96 paise to the 2nd opposite party on 5th February 2015 as per Exbt. A4 bill. The complainant is not challenging that payment as he admitted that the repair works was required due to falling down of the phone. On 2nd February 2016 when the phone was returned to the complainant, the 2nd opposite party should have ensured that the phone was working perfect in all respects. However, as per the complaint it is seen that the phone did not work from the date when it was returned to the complainant as the charging port was defective. The complainant had entrusted the phone to the 2nd opposite party on immediately thereafter to get the charging port repaired properly. Exbt. A2 go to show that the phone was returned to the customer in fine working condition on 21-02-2015. Again it is seen from Exbt. A3 it is also the same as Exbt. B1 that the phone entrusted to the 2nd opposite party again on 02-03-2015. Exbt B1/A3 would go to show that at the time on collection of the phone by the 2nd opposite party no damage or breakage were noticed and it is seen noted that the phone was received without sim card and memory card by the 2nd opposite party for repairs. After receiving the phone on 0203-2015 it is seen that the phone was returned to the complainant on 22-02-2015 with the following comments “ due to memory slot damaged we are not able to replace the system board under warranty, due to touch pad issue we informed the customer, we can replace display unit under warranty, but customer is not willing to repair it. Defective tab returned to the customer”. On going through the comments written by the 2nd opposite party in Exbt. B1/A3 it is very clear that the 2nd opposite party was willing to replace the system under warranty pertaining to the touch pad issue. But the fact remains that the phone was not charging and the charging port was not repaired under warranty. If there was any damage to the memory slot we cannot instruct that such damage was brought at the instance of the case of the consumer. The possibility of getting the damage at the time when repair works done to replace the touch screen earlier could also been possible. The 2nd opposite party did not examine any witness, who had actually worked on the mobile phone concerned. DW1 who examined in this case is only an Accounts manager, who has no nexus with the service or repair works of the phone. The opposite party did not adduce any best evidence to substantiate their case that there was physical damage to the phone so as to deny the warranty. On the other hand in the absence of any noting down damage or leakages in Exbt. B1 at the time of receiving the phone for repairs, the opposite party cannot turn around and say that the damage, if any, had caused exclusively at the hands of the complainant. The complainant had purchased the phone on 19-04-2014 and he was unable to use it peacefully not even for one year. Admittedly the 2nd opposite party had kept the phone idle in the service station, admittedly for more than a month, which would reflect the gravity of deficiency in service at the hands of the 2nd opposite party, who was expected to return the phone at the earliest point of time, considering the fact that the mobile phone is a product which is required for regular use of the consumer. The documents produced by the opposite party itself prove the case against them and we find that the 2nd opposite party who is said to be the authorized service agent of the 3rd opposite party did not do justice to the customer as well as the manufacturer. Since the unjust mistake committed by the 2nd opposite party to the manufacturer is not within our fold we keep that issue apart and confined ourselves to the deficiency committed against the customer. We find on going through the documents produced by the complainant that the phone started giving trouble to the complainant ever since it was repaired for the 1st time by the 2nd opposite party in order to change the touch screen, even after a collection of Rs. 5,647.96 paise. We therefore find that there is grave deficiency in service on the part of the 2nd opposite party and the 2nd opposite party is liable to compensate the complainant.
10. The complainant purchased the phone for Rs. 21,995/- and he had hardly used it for 10 months. He had to run pillar to post to get it repaired in a perfect manner and all its efforts ended into anquish only due to the lethargic attitude of the 2nd opposite party who refused to repair the phone in time and in perfect condition. Despite receipt of notice from this Forum we find that there was no attempt on the part of the 2nd opposite party to settle the matter amicably. Considering the entire circumstances of the case as aforesaid, we find that the complainant is entitled to get Rs. 30,000/- towards the compensation from the 2nd opposite party which would include the cost to be paid for the purchase of a new phone of his choice by the complainant. The issue is therefore found in favour of the complainant and against the 2nd opposite party.
11. Issue No. iii. Having found issue No. and ii in favour of the complainant we direct the2nd opposite party
to pay Rs. 30,000/- towards compensation for the deficiency in service committed against the complainant.
And we further direct to pay costs of this proceedings which we estimated at Rs. 5,000/- to the complainant.
The 3rd opposite party manufacturer is exonerated from payment .
The above said order shall be complied with, within a period of one month from the date of receipt of a copy of this order.
Pronounced in the open Forum on this the 27th day of April 2018
Sd/-
Cherian K. Kuriakose, President.
Sd/-
Sheen Jose, Member.
Sd/-
Beena Kumari V.K., Member.
Forwarded/By Order,
Senior Superintendent.
APPENDIX
Complainant's Exhibits
Exbt.A1 : Copy of invoice dt.19-04-2014
A2 : True copy of e-mail
A3 : True copy of e-mail dt. 02-03-2015
A4 : True copy of receipt
dt. 05-02-2015
A5 : Copy of warranty
Opposite party's exhibits:
Exbt. B1 : Job sheet dt. 02-03-2015
Copy of order despatched on :
By Post: : By Hand:
