Date of filing: 03-07-2010 Date of order: 22-11-2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD CC.156/10 Dated this, the 22nd day of November 2010 PRESENT: SRI.K.T.SIDHIQ : PRESIDENT SMT.P.RAMADEVI : MEMBER Sajeesh, S/o Kunhikannan.E, Complainant Purathemad, Achamthuruthi Po, Kasaragod (Adv.N.P.Ravindran,Hosdurg) 1.The authorized Sub Dealer for M/s Nokia Priority Dealer, Net work& Cellular,MKAN Towers, RS Road, Kottachery, PB No.9, : Opposite parties Kanhangad. 2.The ASC Engineer, Mobile Zone, Land Mark Centre, New Busstand,Kasaragod. (Adv.George John Plamoottil,Hosdurg) ORDER SRI.K.T.SIDHIQ : PRESIDENT The case of the complainant is that he purchased a branded N 73 Model Nokia mobile phone on 5/10/09 from opposite party No.1 for ` 11600/-. But within one week after the purchase it showed defects such as improper display, automatic switch off ,sudden drops in signal and error in connection of the chip. Though the mobile phone was taken for repair to Ist opposite party several times they could not rectify its defects permanently. As a result complainant could not use the mobile phone and it also affected his profession as an insurance agent. Therefore, the complaint claiming the replacement of mobile phone or refund of its purchase value with compensation and cost. 2. Opposite parties filed version. According to them the complaint is bad for non joinder of necessary parties since Nokia Mobile Co. is not made a party. It is true that complainant approached 2nd opposite party with a complaint of automatic switch off and chip connection problem. 2nd opposite party attended the handset and found that there is no complaint of automatic switch off and rectified other complaints . Again on 29/10/09 he came to 2nd opposite party with a complaint of memory card. 2nd opposite party attended and provided free service and advised to change the adopter if the complaint persists. The complainant t used the handset during all this period . Thereafter the complainant not turned up to the opposite parties so far. The mobile phone is not having continuous complaints . It is not correct to say that the opposite parties could not cure the defects even after 5 continuous services. The opposite parties are not liable to replace the mobile phone. Therefore the complaint is liable to be dismissed. 3. Complainant examined himself as PW1 and Exts.A1 to A4 marked through complaint. On the side of opposite parties Ext.B1 marked. Both sides heard. Documents perused. 4. Complainant deposed that the mobile hand set Model N 73 manufactured by Nokia, purchased on 5/10/09 as per Ext.A1 cash bill became defective within a week and he entrusted the set to opposite parties. Opposite party No.1 after examining the set for an hour returned it to the complainant stating that it has no defect. Again after 2 days defects noted when it is in constant use. Then Ist opposite party sent it for service to 2nd opposite party. 2nd opposite party replaced the battery stating that it is a defect of battery. Few days after there was recurrence of defects. Initially Ist opposite party told that they will replace the mobile. But on contacting a person to whom Ist opposite party directed the complainant, it was told that the mobile phone cannot be replaced. Again the mobile phone showed defects. Ist opposite party repaired it through 2nd opposite party and returned after 3-4 days. Again the defects recurred but Ist opposite party was not ready to replace the mobile set. Now the mobile is not using due to its defects. Further the mobile set was manufactured in the year 2008 and when it was sold, it was told that it is a new model. Now the said model is not available in the market. The mobile was necessary for his profession also since he is working as an insurance agent and he has to take photos of the vehicles. But due to the defects of the set he could not store more than 5 photos at a time. Hence he lost its use. 5. Learned counsel for opposite parties Sri.George John cross examined the complainant at length. He stressed on the warranty condition printed on the users guide. In cross examination complainant admitted that Ist opposite party promised to do service to the mobile phone but he refused the offer since it took 4 to 5 days to get back the mobile phone after each service and the service center is failed for rectifying the defects permanently. 6. Ext.B1(a) is manufacturers limited warranty contained in page 136 of Ext.B1 . As per Ext.B1(a) 12 months warranty is provided for mobile phone and its accessories and 6 months for batteries, chargers, desk stands, headsets, cables and covers and 90 days for the media on which any software is provided eg. CD Rom, memory card etc. 7. But it is seen that after the purchase of mobile on 5/10/09 it was taken to Ist opposite party as per Ext.A2 on 2/10/09(may be 12/10/09) on 29/10/09, 15/2/2010. Further the complainant stated that he took the mobile phone for service at least 6 times and some of the service job sheet are not available with him. The intermittent defects to the mobile phone and the failure of service center to fix the defects permanently show that the mobile phone is not fit for the purpose it is manufactured. Therefore, complainant is eligible either to get the phone replaced with a defect free one or for the refund of purchase money. 8. The contention that manufacturer is a necessary party to the complaint is not tenable. !st opposite party being the authorized dealer of the mobile phone manufactured by Nokia India pvt.Ltd is the front man on the face of the manufacturer having privity of contract with complainant. Therefore it is their bounden duty to redress the grievances of the customers approaching them with the complaints. Further our Hon’ble State Consumer Disputes Redressal Commision in the case of Pioneer Motors(Kannur) Pvt.Ltd vs. Chandran, Winspot Tailors & another 2010 CTJ 344(CP)( SCDRC) has held that dealers are usually absolved from any liability in cases where manufacturing defects are alleged by the purchasers and this is not a correct approach. The dealers are as much responsible for the sale of the products as their manufacturers . we are of the view that manufacturer is not a necessary party to this proceedings. Opposite parties are liable to refund the purchase price of the mobile phone sold to the complainant since the order for replacement may again lead to further complications. In the result complaint is allowed and the Ist opposite party is directed to refund ` 11600/- to the complainant with a cost of 2000/-. 2nd opposite party is exonerated from liabilities. Had the Ist opposite party got a contention that it is the manufacturer ie, Nokia India Pvt.Ltd is liable to refund the amount to the complainant then Ist opposite party can recover the amount from Nokia India Pvt.Ltd by initiating appropriate legal proceedings. Time for compliance of the order is one month from the date of receipt of copy of the order failing which I st opposite party is liable to pay @12 %interest on ` 11600/- from the date of complaint till payment. Exts; A1- 5/10/09-cash bill A2 to A4- service job sheets B1- User’s guide B1(a)- warranty PW1-Sajeesh- complainant Sd/ Sd/ MEMBER PRESIDENT eva /Forwarded by Order/ SENIOR SUPERINTENDENT
| | HONORABLE P.Ramadevi, Member | HONORABLE K.T.Sidhiq, PRESIDENT | , | | 
