BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT MANGALORE

Dated this the  30^th September 2009

COMPLAINT NO.69/2009

(Admitted on: 24.3.2009)

PRESENT:              1. Smt. Asha Shetty, B.A. L.L.B., President                                                                                                                                                                                                                                                                                                                                   

2. Smt. Sulochana V. Rao, Member
3. Sri. K. Ramachandra, Member

BETWEEN:

Mr.A.C.Vinayaraj,

Advocate, S/o late K.V.Chacko,

Aged 39 years, Prime Tower,

Near Mangalore Nursing Home,

Mangalore-575 002.                               …….. COMPLAINANT

(Advocate for Complainant: Sri K.S.Sharma)

          VERSUS

1. The Care Manager,

    Nokia India Private Limited,

    4F, Tower-A & B, Cyber Green,

    DLF Cyber City, Sector-25A,

    GURGAON-122 002. (India)

2. Metro Telecom,

    Nokia Care,

    Marz Chambers, Falnir Road,

    Mangalore-575 001.

3. M/s Girias Investment Pvt. Ltd.,

    Nalapad Apsara Chambers,

    Opp. Hotel Poonja International,

    K.S.Rao Road, Hampanakatta,

    MANGALORE-575 001.   ……. OPPOSITE PARTIES

(Advocate for Opposite Party No.1: Sri.K.Nikesh Shetty

Advocate for Opposite Party No. 2 & 3: Exparte)

ORDER DELIVERED BY PRESIDENT SMT. ASHA SHETTY:

1.       The facts of the complaint in brief are as follows:

This complaint is filed under Section 12 of the Consumer Protection Act alleging defect in mobile handset as against the Opposite Parties claiming certain reliefs. 

          The Complainant purchased Nokia Mobile Hand Set bearing Model No.N95 from Opposite Party No.3 for total sum of Rs.18,950/- as per invoice dated 4.9.2008.  The Opposite Party No.1 being the manufacturer issued warranty card against all defects for a period of one year from the date of purchase. 

It is stated that the above mobile set started malfunctioning all of a sudden on 14.2.2009 and it has turned switched off on its own.  The Complainant tried to put the set on, but it was not getting on.  Immediately, thereafter approached the Opposite Party No.2 for service on 14.2.2009.  The Opposite Party No.2 issued a Service Job Sheet and made a note that water inside.  It is submitted that, the above handset suffers from manufacturing defect, which resulted in non-functioning and power does not switch on.  It is stated that with intention to suppress the manufacturing defect in the mobile set, the Opposite Parties made wrong note in the service job sheet to avoid service of warranty.  It is stated that the above handset has manufacturing defect and the reasons stated by the Opposite Parties only to avoid the service of warranty.  However the Complainant issued a legal notice dated 18.2.2009 to replace the defective mobile handset but the Opposite Parties refused to replace the handset and hence the Complainant filed the above complaint under Section 12 of the Consumer Protection Act 1986 (herein after referred to as ‘the Act’) seeking direction from this Hon'ble Forum to the Opposite Parties to replace the defective mobile set with new set of same standard or inturn refund the above amount along with interest at 12% per annum from the date of purchase till the date of payment and also pay Rs.60,000/- towards compensation and cost of the proceedings.

2.       Version notice served to the Opposite Parties by RPAD.  The Opposite Party No.1 appeared through their counsel filed version.  Opposite Party No.2 and 3 despite of receipt of the notice not appeared nor contested the case till this date.  Hence we have proceeded exparte as against the Opposite Party No.2 and 3. The postal Acknowledgement marked as Court Doc.No.1 and 2.

          Opposite Party No.1 raised preliminary objections stating that the complaint is not maintainable.  And further stated that the hand set is not defective as per the service canter’s endorsement, the handset was found liquid damage which is not covered under the warranty. The above said defect in the handset was on account of the misuse/mishandling of the handset and the defect in the handset was caused due to the external factors which is evident from the fact that the damage has been due to the insertion of liquid in the handset.  It is again submitted that there is no manufacturing defect and the complaint filed by the Complainant is not maintainable and prayed for dismissal of the complaint.

3.       In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainant proves that the handset purchased from the Opposite Parties suffers from manufacturing defect?

2. If so, whether the Complainant is entitled for the reliefs claimed?

3. What order?

4.         In support of the complaint Mr.A.C. Vinayaraj (CW1) filed affidavit reiterating what has been stated in the complaint and answered the interrogatories served on him. Ex.C1 to C5 were marked for the Complainant as listed in the annexure. One Sri.Veerendra, Centre Manager of Opposite Party No.1 (RW-1) filed counter affidavit and answered the interrogatories served on him. Ex.R1 was marked for the Opposite Parties as listed in the annexure. Both the parties have filed written notes of arguments.

          We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before the Hon’ble Forum and answer the points are as follows:                

          Point No.(i): Affirmative

          Point No.(ii) & (iii): As per the final order.

REASONS

5.  Points No. (i) to (iii):

It is undisputed fact that, the Complainant purchased the Nokia Mobile handset bearing Model No.N-95, IMEI No.352026022852718 from Opposite Party No.3 for total sum of Rs.18,950/- as per invoice dated 4.9.2008 at Mangalore.  The Opposite Party No.1 is the manufacturer of the handset and Opposite Party No.2 is the Authorized Service Center at Mangalore.  The above handset has one year warranty from the date of purchase.

The Complainant alleged that the handset purchased by him all of a sudden on 14.2.2009 turned switched off on its own.  Thereafter immediately approached Opposite Party No.2 and the handset was delivered to the Opposite Party No.2, inturn Opposite Party No.2 has issued service job sheet on accepting the set for service by endorsing “subject to technical verification for liquid logged and tempering of handset”.  It is contended that, the above note made by the Opposite Party No.2 is unwarranted, unfounded and the above note made with malafide intention to avoid the warranty against the mobile set purchased by him and contended that the above set sold by the Opposite Party suffers from manufacturing defect which resulted in the handset becoming non-functional.  And it is also submitted that after filing this complaint before this Fora the Opposite Party No.2 replaced the handset on 7.5.2009 to the Complainant.  But the replaced handset also gave a problem and the Complainant approached the Opposite Party No.1 and surrendered the handset and Opposite Party No.1 issued service job sheet for the replaced handset.  Hence this complaint. 

The Opposite Parties interalia contended that, the aforesaid problem caused due to liquid damage and the same was not covered under the warranty and further contended that the defect in the handset was on account of the misuse/mishandling of the handset and caused due to the external factors which is evident from the fact that the damage has been due to the insertion of liquid in the handset.  It is further stated that, the handset is having liquid damage and not the manufacturing defect.  When such being the case it is the duty of the Opposite Party to prove that the handset having liquid log, on account of the misuse/mishandling of the handset by the Complainant the above damage caused.

In the instant case, except the oral assertion nothing has been placed on record to show that the handset found liquid damage.  However, the Opposite Parties, the authorized service center drawn a Job Sheet by endorsing that “Subject to technical verification for liquid log and tempering of handset”.  The above endorsement is found baseless because the Opposite Parties ought to have produced the detailed investigation report conducted by the Opposite Party technician to show that the handset has liquid log/damage.  It is also not forthcoming that which part of the handset got damaged is it below the keypad or near the board connector or ESD.  Nothing has been elicited by the Opposite Parties except the bald assertion.  It is the bounden duty of the Opposite Party to prove before the Fora by producing detailed investigation report along with oral evidence on the subject that how the liquid damage is caused, on which part of the handset got damaged, whether it is due to the negligence on the part of the Complainant or due to the poor quality or imperfection on the set.  The same has not been proved by the Opposite Parties by giving material evidence.  The Opposite Parties contended that the defect in the handset was caused on account of misuse/mishandling of the handset.  No prudent person/purchaser will misuse the handset because no one wants to run to pillar to post.  The above contention cannot be accepted in the absence of any cogent/material evidence.  One cannot come to the conclusion by presumption and assumption. 

On the other hand, it is significant to note that the Complainant purchased the above handset admittedly on 4.9.2008 and paid a sum of Rs.18,950/-.  The job sheet dated 7.5.2009 produced before the Fora by the Complainant shows that the defective handset was replaced with a new handset of the same series.  The service job sheet dated 1.6.2009 shows that the new replaced handset had a problem of power switch off, audio/poor outgoing audio quality, poor incoming audio quality and getting disturbance at talk ends.  The above job sheet clearly reveals that even the new replaced handset also proved to be having certain problems as stated in the service job sheet.  From the above job sheet it is proved that the handset sold by the Opposite Parties suffers from imperfection or shortcoming on quality or standard.  A person purchases a new set only for his use and not to suffer the inconvenience of repeated visit to the workshop and deprivation of the use of the set.  It shows the quality and standard of the manufacturing of the product. 

That the facts, circumstances and evidence on record proved that, the handset supplied by the Opposite Parties is not up to the standard.  The Opposite Parties have miserably failed to prove that the handset has liquid log, the same is caused on account of the misuse/mishandling of the Complainant.  In the absence of any material evidence, we hold that the handset purchased by the Complainant suffers from imperfection and not fit to be use because of the short coming on quality or standard. 

In view of the aforementioned discussions, we hold that the handset purchased by the Complainant is not upto the standard and suffers from some manufacturing defects  and also it is proved that even the replaced handset also defective within the warranty period.  By considering the above, we hereby direct the Opposite Parties to refund the entire amount i.e. of Rs.18,950/- by taking back the defective mobile handset from the Complainant.  And further Rs.5,000/- awarded as compensation for the inconvenience and harassment and Rs.1,000/- awarded as cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.

6.       In the result, we pass the following:

ORDER

The Complaint is allowed. The Opposite Parties are jointly and severally liable to refund the entire amount i.e. of Rs.18,950/- by taking back the defective mobile handset from the Complainant.  And further Rs.5,000/- awarded as compensation and Rs.1,000/- as cost of the litigation expenses.  Payment shall be made within 30 days from the date of this order.

Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

(Dictated to the Stenographer typed by him, revised and pronounced in the open court on this the 30^th day of September 2009.)

PRESIDENT

                                (SMT. ASHA SHETTY)

            MEMBER                                          MEMBER

(SMT. SULOCHANA V. RAO)              (SRI. K.RAMACHNADRA)

APPENDIX

Witnesses examined on behalf of the Complainant:

CW1 – Sri. A.C. Vinayaraj – Complainant

Documents marked on behalf of the Complainant:

Ex C1 – 04/09/2008: Purchase Bill.

Ex C2 – 14/02/2008: Service Job Sheet.

Ex C3 – 14/02/2009: Delivery Challan.

Ex C4 – 18/02/2009: Lawyer’s notice got issued to the Opposite Parties by the Complainant.

Ex C5 – Postal Acknowledgements ( 2 in Nos.)

COURT DOCUMENTS:

Doc.No.1 : Postal Acknowledgement.

Doc.No.2 : Postal Acknowledgement.

Witnesses examined on behalf of the Opposite Parties:

RW-1: Sri. Veerendra A.S., Centre Manager of Opposite Party No.1.

Documents marked on behalf of the Opposite Parties:

Ex R1:Settlement Agreement.

Dated:30/09/2009                                           PRESIDENT