DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the 25^th day of April, 2023

Present : Sri.Vinay Menon V., President

             : Smt.Vidya A., Member                       

             : Sri.Krishnankutty N.K., Member         Date of filing: 23/09/2021   

CC/156/2021

    Abdul Rihan

    S/o Abdul Kader, 19/373

    Falah Apartments, Kerala Street

Koppam, Palakkad                                          -         Complainant

(By Adv. Darsan.V.K)

                                                           V/s

1. The Chennai Mobiles

    15/195, Coimbatore Road

    Sulthanpet, Palakkad – 678 001

2. Unicom Mobiles Pvt. Ltd.

    Ghanis Building, Near Fort Maidan

    Stadium Bypass Road, Kunnathurmedu

    Palakkad – 678 013

    (Opposite parties 1 & 2 Ex-parte)

3. Oppo Exclusive Show Room

    And service Centre, Building No: 67/6446

    B.C.Banerji Road, Near High Court Road

Kochi – 682 031                                              -         Opposite parties

(By Adv. K.K.Thankappan)

O R D E R

By Smt. Vidya.A, Member

1.  Pleadings of the complainant in brief

      The complainant purchased a mobile phone of Model A15 OPPO from the 1^st opposite party on 07/05/2021 for an amount of Rs. 11,490/-  After a week of its purchase, the complainant faced many malfunctions with the phone when the device is continuously used for more than 15 minutes.  Due to Lock down, he could not contact the opposite parties and later his father was tested Covid positive and he was under quarantine; but he communicated his grievance to 1^st opposite party through phone.  They directed him to contact 2^nd opposite party.

          On 30/06/2021, he approached the 2^nd opposite party.  After checking, they stated that the phone only had minor software issues and they returned it after rectifying it.  After reaching home, he faced the same problem of hanging in the phone.  The phone started getting slower and had the hanging issue.  So he again approached the 2^nd opposite party and told that it is not just a software issue but it is a manufacturing defect and asked for replacement of the phone.  After 2 days, the 2^nd opposite party returned the phone without repairing it or replacing.  The 2^nd opposite party informed that the 3^rd opposite party, their head office instructed him not to replace the phone.

          On 08/07/2021, the complainant caused to issue lawyer notice to all opposite parties.  Only 3^rd opposite party send reply contending that the complainant had installed many unauthorised applications and that is the reason for the issue in the phone.  The complainant has never installed any of the unauthorised application and he bought it for his younger brother to attend the online classes.  The opposite party had sold the phone to the complainant which is having a manufacturing defect and it has to be replaced with a new one or to refund the whole amount.  It is clearly a deficiency in service on the part of the opposite parties.  Hence he filed this complaint for an order directing the opposite parties

1. To replace the phone or to pay Rs. 11,490/- being the cost of the phone together with interest, to pay Rs. 25,000/- as compensation to the complainant towards damages and to pay the cost of this proceedings.

2.   Even after the receipt of notice, opposite party 1 & 2 did not appear before the Commission or file their version.  So they were set ex-parte.  Opposite party 3 appeared and filed version.   

3.   The 3^rd opposite party contended that they are the manufacturers of the mobile phone and they manufacture the mobile phones using the latest technology and design.  They provide 1 year warranty to all the mobile handsets manufactured by it through their authorised service centres subject to the terms and conditions mentioned in the warranty.  They admit that the complainant purchased the handset from the 1^st opposite party on 07/05/2021.  The complainant did not mention what is the exact issue faced by the complainant and how and when exactly the issues arose other than a general statement that the phone was facing general software issues.

          The 2^nd opposite party who is the authorised service centre of 3^rd opposite party serviced the phone, updated the software and handed over the phone to the complainant.  The complainant took it without raising any issues.  The complainant’s allegation is that the phone was having the same issue even after the service.  The complainant demanded for a replacement of the handset with no genuine reason and no apparent issues were found with the phone.  There is no deficiency in service on the part of 2^nd and 3^rd opposite party.

          The 3^rd opposite party sent reply to the lawyer notice send by the complainant.  The reason cited by the 3^rd opposite party is that the software issues faced by complainant’s phone could be due to several reasons including the usage of unauthorised and unverified 3^rd party applications or even by running application which may require a higher hardware specification for the said applications to run.  It was informed to the complainant and the phone was checked by the service centre many times and no defect to the hardware was found.

          There is no deficiency in service or their part and the complaint has to be dismissed with their cost.       

4.   From the pleadings of both parties, the following points arise for consideration

1. Whether the complainant’s mobile phone suffers from any manufacturing defect as alleged by him?
2. Whether the defects in the phone are due to the installation of unauthorised applications as alleged by 3^rd opposite party?
3. Whether there is any deficiency in service/unfair trade practice on the part of opposite parties?
4. Whether the complainant is entitled to the reliefs claimed?
5. Reliefs as cost and compensation.

5.   Complainant filed proof affidavit and exhibits A1 to A4 marked from his side.  The complainant was examined as PW1.  The opposite party did not file proof affidavit.  Evidence closed and heard.    

6.  Point No: 1

      The complainant’s grievance is that within one week of its purchase, his mobile phone started showing some problems.  The main issue was when it was used continuously for 15 minutes, it started hanging.  So he entrusted the phone with the 2^nd opposite party, who is an authorised service centre of 3^rd opposite party and they rectified the issue.  But even after the service, the problem persisted and according to him it is not a software issue; but it is manufacturing defect of the phone.

          But the complainant did not take any steps to appoint an expert to find out the real issue in the phone.  In order to prove the manufacturing defect in a device, the report of an expert is mandatory and in the absence of expert opinion, the complainant failed to prove the manufacturing defect in his mobile phone.  Point No: 1 is decided accordingly.     

7.  Point No: 2

      Complainant purchased the mobile phone from the 1^st opposite party on 07/05/2021.  He produced the ‘Sales Invoice’ issued by 1^st opposite party showing the purchase of mobile phone A15S – OPPO for an amount of Rs. 11,490/- which is marked as Ext. A1.  According to him, the problems in the phone started within a week; but due to Lock Down he could not contact the opposite parties.  Later his father was tested Covid positive and he was under quarantine; but he informed his grievance to the opposite parties through phone.  As per their direction, he entrusted the phone with the 2^nd opposite party who is the authorised service centre of the 3^rd opposite party to rectify the defects.  According to him, he approached the 2^nd opposite party with the issue in the phone on 30/06/2021, i.e., within one and a half months of its purchase.        

8.   The 3^rd opposite party also admitted that the complainant approached the 2^nd opposite party with some issues in the phone.  The 2^nd opposite party serviced the phone, updated the software and handed over the phone to the complainant.  The complainant took the phone without raising any further issues.  They further stated that complainant alleged that the phone is having the same issue even after service.  They admit that the complainant approached the 2^nd opposite party again and asked for replacement.

9.   So from their pleadings, the opposite party also admit that there were some software issues with the phone.  In the reply to the lawyer notice send by the complainant, which is marked as Ext. A4, the 3^rd opposite party contended that when the phone was brought to 2^nd opposite party, no patent defect could be found out.  The software issue was resolved by updating the software and this could be due to installing and using unauthorised application.  But they did not adduce any evidence.  They did not file proof affidavit of mark any documents in evidence.  Nothing was brought out during the cross examination of the complainant.  The opposite parties failed to prove that the issues in the phone were due to installation of unauthorised applications.  Point No: 2 is decided accordingly.

10. Hence from the evidence adduced, it is clear that the mobile handset is having the problem from the beginning itself.  The 3^rd opposite party had assured 1 year warranty for the product.  During the warranty period, the opposite parties failed to resolve the issue by repairing/replacing the phone.  It is a deficiency in service on their part.  All the opposite parties are jointly and severally liable for the same and they are bound to compensate for the same.  During cross examination, the complainant deposed that he is not using the phone because of the hanging issue.  The complainant would have suffered mental agony because of this.  Further he had financial loss in purchasing the phone and additional financial burden in conducting the litigation.

          Since the complainant failed to prove the manufacturing defect in the phone, we are not inclined to allow replacement of the phone or refund its price. 

      In the result the complaint is allowed in part. 

      We direct the 2^nd opposite party to rectify the issue in the phone to the satisfaction of the complainant or in the alternative opposite parties are directed to pay Rs.8,000/- to the complainant.

We further direct the opposite parties jointly and severally to pay Rs.10,000/- for their deficiency in service, Rs. 5,000/- for the mental agony suffered by the complainant and Rs. 5,000/- as cost of the litigation. 

The opposite parties shall comply with the directions in this order within 45 days of receipt of this order, failing which opposite party shall pay to the complainant Rs. 250/- per month or part thereof until the date of payment in full and final settlement of this order.

Pronounced in open court on this the 25^th day of April, 2023.

                                                                                             Sd/-

                                                                                    Vinay Menon V

                                                                               President

                                                         Sd/-

              Vidya.A

                             Member

                                                                                              Sd/-                                                                                                

                                                                                  Krishnankutty N.K.

                                                                                           Member

APPENDIX

Documents marked from the side of the complainant:

Ext. A1: Sales Invoice (Original) dated 07/05/2021.

Ext. A2: Information and Warranty Card (Original).

Ext. A3: Lawyer Notice along with A/D Cards.

Ext. A4: Reply Notice.

Documents marked from the side of opposite parties: Nil

Witness examined from the complainant’s side: Nil

Witness examined from the opposite parties side:

PW1: Abdul Rihan – Complainant.

Cost- Rs. 5,000/-

NB: Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.