This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant Smt. Tanuja W/o. Rachanagouda Patil against the Respondents- (1) Tarun Enterprises, Nokia Authorized Dealer Station Road, Raichur (2) Nokia Service Care Center Station Road, Raichur for awarding compensation/damages of Rs. 10,100/- for deficiency in service by the <br /> Respondents. The brief facts of the complaint are as under:<br /> <br /> Complainant is a Government Teacher at Kallur village Tq. Manvi and she purchased a Nokia Mobile Set Model No. 1600 and Battery No. 06704004620400032 A 20524768, IMEI No. 355508/01/69244717, Charger No. 409049704/04020825/10675583 on 05-04-07 from Respondent No-1 vide Bill No. 2304 for Rs. 2,200/-. Respondent NO-2 is a Authorized Service Care Center of Nokia Mobile. On 09-01-08 the said Mobile Set started to give problems i.e, not displaying, no clear sound and no back side light as it was earlier. The said Mobile is still within the warranty period as per the User’s/Guide Book given to her. The complainant immediately approached Respondent NO-1 on 11-01-08 for its repairs but Respondent No-1 advised to contact the Respondent NO-2 accordingly she approached Respondent NO-2 on the same day itself, but Respondent No-2 has requested her to come on next day. On the next day i.e, 12-01-08 Respondent No-2 has told that no one is attending the work so he requested the complainant to come on the next day i.e, on 14-01-08 and same was repeated upto 15-01-08 by giving false assurance further on 15-01-08 the Respondent No-2 checked the said Mobile Set and asked to pay Rs. 750/-towards repairs even though it is within the warranty period. The complainant refused to pay the said sum as it is still within the warranty period but the Respondent NO-2 refused to repair with free of cost. This clearly shows deficiency in service by the Respondents 1 & 2.<br /> <br /> The complainant has to avail Casual Leave on 11-01-08, 12-01-08, 14-01-08 & 15-01-08 for approaching the Respondents for repair of said Mobile Set, therefore the complainant unnecessarily lost her (4) days C.L. She is a Government High School Teacher and was necessary to contact the members of the family, other relatives and colleague for which she used to contact through STD Booth which became excessive from 09-01-08 onwards. The complainant approached her counsel on 17-01-08 and got issued a Legal Demand Notice to the Respondents through RPAD calling upon the Respondents to make its repair with free of cost which is still under warrant period and the said notice was served upon the Respondents 1 & 2 on 21-01-08 but no response from them till today. This attitude of the Respondents clearly amounts to deficiency in service and unfair trade practice therefore the complainant has sought for Rs. 2,200/- towards cost of Mobile Set, Rs. 1,200/- towards loss of pay for (4) days C.L. Rs. 200 towards Auto charges to the Respondents Shop, Rs. 1,500/- towards STD/Telephone charges for contacting relatives and colleagues, Rs. 5,000/- towards mental agony and inconvenience totaling to Rs. 10,100/-. Hence for all these reasons the complainant has sought for awarding compensation/damages of Rs. 10,100/- from both Respondents jointly and severally along with interest at 24% p.a. till its realization. <br /> <br /> 2. Respondents 1 & 2 appeared through respective counsel and filed separate written statement.<br /> Respondent NO-1 in his written statement has contended that complainant had purchased Nokia Mobile Set Model No. 1600 on 05-04-07 from this Respondent for Rs. 2,200/- and he is the care taker of his customers who has purchased the Mobile Set from the shop. Complainant come to his shop stating that her Mobile is giving trouble/problems and immediately this Respondent asked her to approach Respondent No-2 for solving the problems of his Mobile Set as this Respondent is concerned with only sales of Mobiles and not with service of Mobile etc., In-fact complainant knows this fact but intentionally she has made him as party to the complainant. The original bill submitted by the complainant itself clearly shows that as per the terms and conditions namely Condition No.2 it clearly discloses that Tarun Enterprises/Respondent No-1 is not responsible for Mobile service and the total concerned of the service is Company Service Center. As such burden is on Respondent NO-2 Nokia Care Service Center.<br /> <br /> The compensation claimed by the complainant is very high, excessive, exorbitant and un-reasonable she has not approached the Forum with clean and fair hands. This Respondent is neither manufacturer nor service center. So Respondent NO-1 is not liable for the claim of the complainant. Hence for all these reasons Respondent NO-1 has sought for dismissal of the complaint against this Respondent NO-1 with cost.<br /> <br /> 3. Respondent No-2 has filed written statement denying the contents of the complaint. Complainant has made false allegations in order to suit her claim. This Respondent has not received any notice from the complainant and the complainant has not at all approached this Respondent at any point of time, so there arise no question of any deficiency or unfair trade practice on the part of this Respondent NO-2. The amount claimed by the complainant is exorbitant and excessive.<br /> <br /> Immediately after the complaint is received from the customers this Respondent NO-2 will prepare ‘on line Job sheet’ which will be connected to Central Office at Singapore and copy of the same will be given to the customer. In the present case as the complainant has not at all approached Respondent NO-2 and ‘no Job sheet’ was also prepared. Without prejudice to his defence it is submitted that this Respondent NO-2 is ready to look into the grievance of the complainant and if it is permissible and if it is covering under the warranty, according to norms and condition of the company then the grievance of the complainant will be taken care of by the company. Hence for all these reasons Respondent No-2 has sought for dismissal of the complaint with cost.<br /> <br /> 4. During the course of enquiry the complainant has filed her sworn affidavit by way of examination-in-chief. In-rebuttal Respondent NO- 1 & 2 have filed their sworn-affidavits by way of examination-in-chief. On behalf of complainant (4) documents were got marked at Ex.P-1 to Ex.P-4 for the complainant. In-rebuttal one document at Ex.R-1 got marked for Respondent No-2.<br /> <br /> 5. Heard the arguments of both sides and perused the records. The following points arise for our consideration and determination:<br /> <br /> 1.Whether the complainant proves deficiency in service by the Respondents, as alleged.<br /> <br /> 2.Whether the complainant is entitled for the relief sought for.<br /> <br /> 6. Our finding on the above points are as under:-<br /> <br /> 1.In the Negative.<br /> <br /> 2. As per final order for the following <br /> <br /> <br /> REASONS<br /> <br /> POINT NO.1 & 2:-<br /> <br /> 7. There is no dispute regarding purchase of Mobile Set by the complainant from the shop of Respondent No-1 on 05-04-07 under cash bill at Ex.P-1. It is the case of the complainant that in January-2008 i.e, on 09-01-08 her Mobile Set started giving trouble/problems i.e, not displaying, no clear sounds and no back side light as it was earlier and that the Mobile Set for still within the warranty period as per the Users/Guide Book supply to her produced at Ex.P-2. It is also her case that on 11-01-08 she approached Respondent No-1 shop for getting repair of the set for which Respondent No-1 asked her to go to Respondent No-2 – Service Care Center and on the same day she approached Respondent NO-2 Service Care Center who sought time day by day till 15-01-08 on which day Respondent NO-2 asked her to pay Rs. 750/- towards repair charges. It is also her case that since the Mobile Set was within the warranty period she asked Respondent No-2 to repair free of cost for which Respondent No-2 refused and so she has knocked the door of this Forum for deficiency of service against both the Respondents. <br /> <br /> 8. The Respondent No-2 has contended that the complainant has not at all approached him for repair and that no notice has been served on him. So there is no deficiency in service on his part and that after the receipt of the complaint of the complainant he came to know that a false case has been foisted against him and that he is ready to repair the Mobile Set provided if it is providing under the warranty terms and conditions.<br /> <br /> 9. The Respondent NO-1 in his written statement has admitted that the complainant had approached him for repair of Mobile Set and he in-turn asked the complainant to approach Respondent No-2 the Service Care Center. This itself falsify the contention of the Respondent No-2 that the complainant has not at all approached him (Respondent No-2). Further the two postal acknowledgements at Ex.P-3(1) & Ex.P-3(2) show the service of legal notice on the Respondent No-1 & 2. However it appears that mistakenly the seal of Respondent NO-1’s Shop is affixed on the postal acknowledgement of Respondent No-2, and seal of Respondent No-2’s Shop is affixed on the postal acknowledgement of Respondent No-1. So the contention of the Respondent NO-2 that the complainant has not at all approached his shop and no legal notice has been served on him holds no water. This in-turn further strengthen the contention of the complainant that the Respondent NO-2 has asked Rs. 750/- towards repair charges. Of-course the Respondent NO-2 in his written statement has clearly stated that he is ready to repair the Mobile Set of the complainant if it is covering under warranty terms and conditions.<br /> <br /> 10. It is worth-while to note here itself that on 25-07-08 when this case was at the stage of arguments, the L.C. for Respondent No-2 submitted that the Respondent No-2 who is present (on that day in the Forum), is ready to repair the Mobile Set provided if it is covering under warranty terms and conditions or the complainant be asked to seek for appointment of Technician as Forum Commissioner. The L.C. for the complainant who is the husband of the complainant, agreed for the test of the Mobile Set by the Respondent NO-2 and accordingly the counsel for complainant handed over the Mobile Set along with memo which was received by Respondent No-2 and on 29-07-08 counsel for Respondent NO-2 filed memo with Report of Respondent NO-2 that the Mobile Set is not repairable as it is outside the scope of warranty conditions as detailed in the Report. The L.C. for the complainant filed objection to this report and after hearing both sides the Forum vide its order dt. 14-08-08 directed the complainant to seek for appointment expert/technician to know the defects in the Mobile Set. On 22-08-08 the counsel for complainant submitted for not seeking for appointment of Forum Commissioner and submitted for posting the case for final arguments.<br /> <br /> 11. During the course of final arguments the L.C. for the Respondent No-2 by inviting our attention on the warranty terms and conditions under the head MANUFACTURER’S LIMITED WARRANTY vide Nokia- User’s Guide Book at Ex.P-2, at Page-46 to 48 submitted that as per the report of Respondent NO-2 the Mobile Set of the complainant is having two defects (1) Internal short has occurred due to liquid logged near display connector (2) Lot of dry soldering found near in display tracks, warranty void (beyond economical repair) and these defects are not covered under warranty terms and therefore Respondent No-2 cannot be held deficient in service. However the L.C. for Respondent No 1 & 2 submitted that the Respondent NO-1 and 2 generously agreed for replacement of Mobile Set of the complainant and if the complainant hand over the Mobile Set he will be given a new Mobile Set. The L.C. for the complainant however declined to accept the said offer and submitted for awarding compensation of Rs. 10,100/- as sought for.<br /> <br /> 12. From a perusal of report of the Respondent NO-2 showing the two defects in the Mobile Set along with the terms and conditions of the warranty at Ex.P-2 vide Page No. 46 to 48, it shows that the defects found in the Mobile Set do not cover the warranty terms. More over the complainant has not disproved this report of Respondent NO-2 by seeking appointment of expert/technician. Admittedly the Mobile Set was purchased on 05-04-07 and it started to trouble on 09-01-08 as contended by the complainant. So to say the Mobile Set had no problem from 05-04-07 to 09-01-08 (for more than 9 months) consequently it leads wrong handling of the Mobile Set resulting the defects as noted in the Report. Under such circumstances it cannot be said that the Mobile Set had manufacturing defect and therefore the decision in the ruling reported in M/s. Reprographics Division HCL Ltd., V/s. Sanjay Kumar Sharma, 1999(3) CPR Page 195 (SC) State Commission Himachal Pradesh relied on by the L.C. for the complainant will not come to the rescue of the complainant. In the said ruling the defect in photocopier machine had started giving trouble in the copier ie., immediately after its installation. But in the instant case the Mobile Set had started giving trouble after more than (9) months use. If the period of (9) months use of the Mobile Set is taken into account in the light of the defects reported by the Respondent NO-2 namely: “(1) Internal short has occurred due to liquid logged near display connector (2) Lot of dry soldering found near in display tracks warranty void” then, contention of wrong handling of Mobile Set cannot be ruled out. <br /> <br /> 13. Further more the complainant has stated that she being a teacher had to loose (4) days C.L. on 11-01-08, 12-01-08, 14-01-08 & 15-01-08 as stated in Para- 4 & 5 of her complaint. Admittedly Makara Sankramana Festival falls every year either on 14th or 15th January and it will be a general holiday. In this year 2008 15th January was a general holiday for Makara Sankrantri. So the contention of the complainant that she lost C.L. on 15th instant is nothing but a false one. Further more the complainant has not substantiated by producing any documents that she had really applied C.L. on 11th , 12th , & 14th and on 15th January 2008 ( 13-01-08 was a Sunday). In the absence of the same the contention that the complainant lost (4) days C.L. cannot be accepted without cogent evidence. So from the above discussion it follows that the complainant has failed to prove deficiency in service on the part of Respondent. Hence Point NO-1 & 2 are answered in the Negative.<br /> <br /> 14. However as stated earlier during the course of argument Respondent NO- 1 & 2 have generously come forward for replacement of Mobile Set. Under these circumstances we find it just and proper to advise the complainant for accepting the offer of the Respondents for replacement of the Mobile Set so as to give full stop to the litigation. Therefore we feel it just and proper to direct the complainant to hand over her Mobile Set to the Respondents for replacement and in-turn the Respondents to replace the Mobile Set by giving a new one to the complainant. In this view of the matter we pass the following order:<br /> <br /> ORDER<br /> <br /> The complaint of the complainant is liable to be and the same is hereby dismissed. However in-view of the generous offer submitted by the Respondents for replacement of Mobile Set, during the course of arguments<br /> <br /> hence the complainant shall hand over the defective Mobile Set to the Respondents and they in-turn to replace by giving a new Set. <br /> <br /> Under these circumstances we direct both the parties to bear their own cost.<br /> <br /> Office to furnish certified copy of this order to both the parties forth with free of cost.<br /> <br /> (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 17-09-08)<br /> <br /> Sd/- Sd/- Sd/-<br /> Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. N.H. Savalagi,<br /> Member. Member. President, <br /> Dist.Forum-Raichur. Dist-Forum-Raichur Dist-Forum-Raichur.<br /> <br /> <br />