O R D E R
Per Sri M.V.L.Radha Krishna Murthy, Member:
This complaint is filed u/s 12 of Consumer Protection Act praying to direct the opposite parties to pay a sum of Rs.21,994/- (comprising of Rs.1600/- towards cost of the cell phone, Rs.264/- towards interest, Rs.20,000/- towards damages for the mental agony and Rs.130/- towards court fee), to pay subsequent interest @12% p.a on the amount claimed from the date of filing of complaint till the date of payment and for costs.
2. The averments of the complaint in brief are as follows
Complainant purchased a cell phone from 2nd opposite party under bill No. 91 dated 05-01-11 by paying Rs.1600/-. Since the date of purchase the cell phone was giving trouble and complainant has reported the same to opposite parties but opposite parties 2 and 3 made small adjustment to it and returned the same. On 20-08-11 the said cell phone failed to give display and then approached 2nd opposite party who sent the complainant to 3rd opposite party and 3rd opposite party has taken the set and noted the remarks as “Display not coming PLG, total checking” and advised the complainant to come after a week days and gave acknowledgement coupon. Complainant visited the 3rd opposite party several times but invain. The efforts of complainant in getting back the cell phone became futile and sustained lot of loss in conducting his business. Opposite parties utterly failed in replace the set or arranging a new display LCD in place of old one or refunding the amount. All the above facts clearly proves that the set was a second hand one and 2nd opposite party tactfully sold it to the complainant saying that it is a new one. The complainant requested to replace the cell phone with a new one or in the alternative to return the amount paid by him with interest @18% p.a.. As there is no response, the complainant got issued a notice to replace the cell phone with a new one or return the amount with interest within a week. The opposite parties received the notices and kept quite. Thus opposite parties caused loss and mental agony to the complainant and there by committed deficiency in service. Hence the complaint.
3. 1st opposite party remained exparte.
4. 2nd opposite party filed its counter and the same in brief is as follows :-
Most of the averments in the complaint are false, incorrect and misleading and the complaint is not maintainable at Law. This opposite party is only seller of the mobile which was manufactured by the 1st opposite party. The complainant purchased the mobile from this opposite party under invoice No. 91 dated 05-01-11. In the said invoice, it was clearly mentioned under the bottom by a stamp in Telugu bold letters that “cell phone repair ku vachina yedala company service center nu sampradincha galaru. Shop variki yetuvanti badyatha ledu”. According to that this opposite party is not having any responsibility and there is no deficiency of service on the part of this opposite party. The opposite parties 1and 3 are opnly responsible and liable for the reliefs claimed by the complainant as such complaint against this opposite party is not maintainable. Therefore the complainant may be dismissed with costs.
5. 3rd opposite party filed its version and the same is brief in as follows : -
All the averments mentioned in the complaint are false, incorrect and not true and the complaint is not maintainable in Law. This opposite party is Authorized Service Centre of “Reding Ton” company who has been dealing with reputed cell phone companies. It is the duty of this opposite party to rectify the problems in warrant cell phones. Complainant approached this opposite party. After verification this opposite party issued receipt to the complainant by showing the remark i.e. “Display not coming, PLG Total Checking”. While things stood thus, this opposite party informed the same to the Reding Ton Company about the problem of the cell phone. Then the said company sent a mail to this opposite party that the cell phone was not come under the warranty period and the warranty period was completed. Immediately this opposite party informed the same to the complainant and advised him to receive his cell phone. But the complainant did not hear the words of this opposite party and by suppressing the above real facts, the complainant filed this complaint only to get unlawful gain and to squeeze money from this opposite party. Hence the complaint is liable to be dismissed.
6. In support of their versions complainant, 2nd opposite party and 3rd opposite party have filed their respective affidavits reiterating their versions.
7. On behalf of complainant Exs.A-1 to A-6 are marked. On behalf of 3rd opposite party Exs.B1 was marked.
8. Now the points that arise for consideration are:
1. Whether the opposite parties have committed any deficiency in
service?
2. To what relief the complainant is entitled to?
9. POINT NO.1: The case of the complainant is that he purchased a cell phone from 2nd opposite party manufactured by 1st opposite party on 05-01-11 by paying Rs.1600/- under the bill No. 91 and since the date of purchase the cell phone was giving trouble, but on 20-08-11 when the cell phone failed to give display he approached 2nd opposite party who in turn sent the complainant to 3rd opposite party and that 3rd opposite party has taken the cell phone and noted the remarks as “Display not coming, PLG total checking” and advised the complainant to come after a week and gave acknowledgment for the same. Subsequently 3rd opposite party failed to return the cell phone after repairing the same or failed to arrange a new display LCD in place of old one or refunding the amount, and that complainant got issued a notice to opposite parties who received the same and kept quite. Thus the opposite parties caused mental agony and committed deficiency in service.
10. The case of the 2nd opposite party is that he sold the cell phone in question to the complainant on 05-01-11 under invoice No. 91 and that in the said invoice it was clearly mentioned by a stamp in Telugu bold letters that ““cell phone repair ku vachina yedala company service center nu sampradincha galaru. Shop variki yetuvanti badyatha ledu” and that therefore 2nd opposite party is not having any responsibility, thus there is no deficiency of service committed by 2nd opposite party and that opposite parties 1 & 3 are only responsible and liable for the reliefs claimed by the complainant.
11. The case of 3rd opposite party is that it is the Authorised service Centre of Reding Ton Company who has been dealing with reputed cell phone companies and that their duty is to rectify the problems of warrant cell phones and when complainant approached this opposite party after verification they issued a receipt to the complainant with the remarks “Display not coming, PLG Total Checking” and that they informed the same to the Reding Ton Company about the problem of the cell phone and the said company sent a mail to 3rd opposite party that the cell phone was not come under the warranty period and that the opposite party informed the same to the complainant and advised him to take back his cell phone and that 3rd opposite party is not liable for the claim made by the complainant.
12. It is not dispute that complainant had purchased a cell phone from 2nd opposite party on 05-01-11 by paying Rs.1600/- under bill No.91. It is also not in dispute that 1st opposite party is the manufacturer of the cell phone , 2nd opposite party is the dealer who sold the cell phone to the complainant and 3rd opposite party is the Authorised Service Centre. When complainant handed over the cell phone to 3rd opposite party, 3rd opposite party has issued Ex.A-2 Job Sheet dated 20-08-11 wherein against remarks column, it was noted as Display not coming, PLG total checking. 2nd opposite party has issued invoice No.91 dated 05-01-11 to the complainant for the sale of mobile and it was marked as Ex.A-1. The case of 2nd opposite party is that they have stamped on Ex.A-1 invoice in Telugu that “cell phone repair ku vachina yedala company service center nu sampradincha galaru. Shop variki yetuvanti badyatha ledu” and that therefore they are not liable for the claim made by the complainant. This kind of stamping on the invoice Ex.A-1 amounts to unfair trade practice. The practice adopted by 2nd opposite party by stamping as stated above amounts to imposing unjustified restriction on the customer and as a result of the same the customers are denied of their legitimate right of getting a new instrument in place of the defective instrument/goods or in obtaining the refund of its value from the dealer who sold it to the customer. Therefore the defense pleaded by 2nd opposite party amounts unfair trade. Therefore, we are of the considered opinion there is deficiency of service on the part of 2nd opposite party.
13. The case of 3rd opposite party is that when the cell phone was handed over by the complainant to them they have informed the same to the Reding Ton Company about the problem of the cell phone and that the said company sent a mail to 3rd opposite party that the cell phone was not come under the warranty period and in support of their case 3rd opposite party filed Xerox copy of e-mail copy Ex.B-1. In Ex.B-1 the customer name was noted as “Deepthi” and the Mobile No. was noted as 7569852515, where as the name of the complainant is Shaik Khasimjon. As per Ex.A-1 invoice the customer name is Shaik Khasimjon and the mobile No. is 9247810878. The name of the customer and the mobile number mentioned in Ex.A-1 invoice are not tallying with particulars mentioned in Ex.B-1 relating to the customer and cell phone. Therefore it can be safely concluded that Ex.B-1 filed by 3rd opposite party does not relate to the complainant. Further as seen from Ex.A-5 terms of warranty the warranty period for the cell was given as 12 months and for accessories like battery and charger the warranty period was given as 6 months and for CD Rom and memory card the warranty period was given as 90 days. In this case the complaint is relating to the cell phone and the complainant has given the cell phone for repair to the service centre 3rd opposite party under Ex.A-2 on 20-08-11, while the date of purchase is 05-01-11. Therefore it can be safely concluded that the complainant handed over the cell phone to 3rd opposite party for repair within the warranty period as stipulated in Ex.A-5. Further the case of 3rd opposite party is that they have informed the complainant about the mail received by them and advised him to take back his cell phone but 3rd opposite party has not filed any document in support of the said plea taken by them. Therefore it can be safely concluded that opposite party has not taken any action as pleaded by him, since the same was not proved by 3rd opposite party. In the said circumstances we find deficiency of service on the part of 3rd opposite party also.
14. Complainant has got issued legal notice to opposite parties 1,2 and 3 on 14-10-11 under Ex.A-3. Inspite of the issuance of the notice, opposite parties 1 to 3 failed to comply the request of the complainant either to replace the set or to refund the amount paid by him. Therefore we find deficiency of service on the part of 1st opposite party also. In view of the foregoing discussion we find deficiency of service on the part of opposite parties 1 to 3. Accordingly this point is answered.
15. POINT NO. 2:- Complainant claimed refund of value of the cell phone i.e. Rs.1600/- together with interest thereon and also claimed Rs.20,000/- towards damages for the mental agony suffered by him. The amount claimed towards damages and compensation is too high and it is imaginary. The complainant has not substantiated the said claim of Rs.20,000/- towards compensation. Therefore, in view of the circumstances and facts of the case, we are of the considered opinion that if the opposite parties are directed to refund the value of the cell phone of Rs.1600/- together with interest @9% p.a thereon from 20-08-11 till realization, and awarding compensation of Rs.2,000/- and costs of Rs.1,000/- would meet the ends of justice. Accordingly this point is answered.
16. In the result, the complaint is allowed in part as indicated below:
1. Opposite parties 1 to 3 are hereby directed to pay an amount of Rs.1,600/- to the complainant together with interest thereon @9% p.a. from 20-08-11 to till the date of payment.
2. Opposite parties 1 to 3 are further directed to pay an amount of Rs.2,000/-to the complainant towards compensation.
3. Opposite parties 1 to 3 are also directed to pay Rs.1,000/- to the complainant towards the costs of the complaint.
The above order shall be complied with in a period of six weeks from the date of receipt of this order, failing which the amount awarded in item No.2 will also carry interest @9%p.a. till the date of payment.
Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 25th day of May, 2012.
MEMBER MEMBER PRESIDENT
APPENDIX OF EVIDENCE
DOCUMENTS MARKED
For Complainant:
Ex.No |
DATE |
DESCRIPTION OF DOCUMENTS |
A1 |
05-01-11 |
Xerox copy of Cash Bill issued by 2nd opposite party. |
A2 |
20-08-11 |
Xerox copy of Reington Job Sheet issued by 3rd opposite party. |
A3 |
14-10-11 |
Office copy of notice. |
A4 |
15-10-11 |
Postal receipts 3 in number (original) |
A5 |
|
Xerox copy of warranty terms and service center list. |
A6 |
|
Returned notice. |
For 3rd opposite party:
Ex.No |
DATE |
DESCRIPTION OF DOCUMENTS |
B1 |
11-01-10 |
Copy of E-mail. |
PRESIDENT
