DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, KOZHIKODE

PRESENT: Sri. P.C. PAULACHEN, M.Com, LLB    : PRESIDENT

Smt. PRIYA.S, BAL, LLB, MBA (HRM) :  MEMBER

 Sri.V. BALAKRISHNAN, M Tech, MBA, LL.B, FIE: MEMBER

Friday, the 29^th  day of November 2024

CC No. 391/2024

Complainant

Muhammed Shafi.K,

S/o Basheer.T,

Kodathinkal House,

                       Thiruthiyad,

Vazhayur, Malappuram District,

673 633 (PIN).

(By Adv. Sri. Mufeed.M.K and Adv. Sri. Juseena.V.P)

Opposite Parties

1.              Manager,

Eham Digital Electronics and Home Appliances,

Unison Tower,

Thondayad Bypass Junction,

Calicut – 673 017.

2.             Eham Digital LLP,

Rep. by Designated Partner,

Mr. Nikshan Ahamed,

16/501-O, Monrana Estate,

Paingottupuram, Peringolam (PO),

Kozhikode – 673 571.

                                                                               ORDER

By Sri. P.C. PAULACHEN  – PRESIDENT

            This is a complaint filed under Section 35 of the Consumer Protection Act, 2019.

2. The case of the complainant, in brief, is as follows:

On 07/11/2022 the complainant purchased a VIVO MOBILE V25 PRO 8/128 SALLING BLUE from the first opposite party paying Rs. 34,999/-. An additional warranty was also availed paying Rs. 4,720/-.

3. The mobile handset had fallen down from the complainant and the camera and the back side glass were broken and the same was taken to the opposite parties   on 20/10/2023 for repairing the camera and broken glass as it is covered under the warranty. The service executive of the opposite parties had assured that the work would be completed within 10 years.
4. But later a call was received from the service team of the opposite parties informing that they had mistakenly formatted the whole data of the phone, which was totally unwarranted for repairing the physical damage. The complainant, being an industrial work designer, had kept all the work designs, models and measurements in the phone and the loss was in fact incalculable in terms of the money as far as his work is concerned. The service team of the opposite parties informed that they were making earnest effort to recover the data and assured recovery of the same. But even after repeated assurances, they have not intimated any progress. Hence on 11/12/2023, the complainant enquired about status and then the service team arrogantly stated that the complainant could take back the phone and stepped back from the assurance given.  As of now, the phone has not been repaired or reinstated to the previous condition and it is kept with the opposite parties. Much loss, injury, hardship and damage have been caused to the complainant on account of the callous and negligent act and unfair trade practice of the opposite parties.
5. On 03/02/2024 the complainant issued a lawyer notice to the opposite parties seeking damages. The opposite parties sent a reply stating untenable contentions. The opposite parties are jointly and severally liable to refund the price of the phone amounting to Rs. 34,999/- and also Rs. 4,720/- collected for additional warranty and to pay compensation of Rs. 1,00,000/- for the loss, pain and suffering and mental agony suffered by the complainant on account of the negligence, deficiency in service and unfair trade practice on the part of the opposite parties. Hence the complaint.
6. The notice issued from this Commission was duly served on the opposite parties. But the opposite parties did not respond to the notice and hence set ex-parte.
7. The points that arise for determination in this complaint are;
   1. Whether there was any deficiency of service on the part of the opposite  parties, as alleged?

                 b. Reliefs and costs.

8. PW1 was examined and Exts A1 to A8 were marked.   
9. Heard.
10. Point No 1:     PW1, who is none other than the complainant, has filed   proof affidavit  in terms of the averments in the complaint and in support of the claim. Ext A1 is the tax invoice dated 07/11/2022, Ext A2 is the tax invoice dated 07/11/2022 for Eham ADLD phone secure plus mobiles and tablets, Ext A3 is the job card dated 20/10/2023, Exts A4 and A5 are the copies of the lawyer notice dated 03/02/2024, Ext A6 and A7 are the postal receipts and Ext A8 is the postal acknowledgment card.
11. The evidence of PW1 stands unchallenged. The opposite parties have not turned up to file version and contest the matter. The opposite parties have not adduced any evidence to disprove the averments in the complaint or to rebut the veracity of the documents produced and marked on the side of the complainant. There is no contra evidence to disprove the claim. The case of the complainant regarding deficiency of service stands proved through the testimony of PW1 and Exts A1 to A8 documents.
12. The first prayer in the complaint is for refund of the price of the handset. But it may be noted that there is no case for the complainant that the device is having any manufacturing defect and the manufacturer of the product is not in the party array. Even according to the pleadings, the device had fallen down which resulted in physical damage. It was damaged at the hands of the complainant. No manufacturing defect is alleged. Unless and until it is proved by cogent and convincing evidence supported by the evidence of an expert that the device suffered from any inherent manufacturing defect, the prayer for the refund of the price or replacement of the product cannot be ordered. It is also pertinent to note that there was no such demand in the lawyer notice issued. In the absence of pleadings and evidence regarding manufacturing defect in the product, the prayer for refund of the purchase price cannot be allowed.  However, the complainant is entitled to get the device repaired. The opposite parties have no right to retain possession of the handset without returning the same to the complainant after repairs. Hence the opposite parties are to be directed to repair/service the handset and return it to the complainant in a sound working condition.
13. The second prayer is for refund of Rs 4,820/- which was paid for the additional warranty. It may be noted that the complaint has enjoyed the benefit of extended warranty or in other words, the device had the extended warranty coverage. The complainant has entrusted the phone to the opposite parties for repairs of physical damage. It is specifically pleaded in the complaint that physical damage is covered by warranty. It is also stated in Ext A3 that there is warranty seal and the service charge is nil. No reason is stated by the complainant for demanding back the amount paid for the additional warranty. That being the position, we are of the view that the prayer for refund of the amount paid for availing additional warranty cannot be entertained.
14. As far as the third prayer for compensation is concerned, it may be noted that the specific case of the complainant is that the opposite parties formatted the whole data in the handset which was totally unwarranted to repair the physical damage  to the phone. There is nothing to indicate that deletion of the data stored in the memory of the phone was inevitable to repair the physical damage and that it was done with the consent or knowledge of the complainant. By the loss of valuable data the complainant was put to loss and injury and the negligent action of the opposite parties has caused intense mental agony and hardship to the complainant, who is an industrial work designer. The complainant is entitled to be compensated adequately by the opposite parties, who are jointly and severely liable. Considering the entire facts and circumstances, we are of the view that a sum of Rs 35,000/- will be reasonable compensation in this case. The complainant is also entitled to get   Rs. 3,500/- as cost of the proceedings. The opposite parties are jointly and severally liable. Point found accordingly.
15. Point No. 2:- In the light of the finding on the above point, the complaint is disposed of as follows;
    1. CC.391/2024 is allowed in part.
    2. The opposite parties are hereby directed to return the mobile handset to the complainant after repairing and making it in sound working condition within 30 days of the receipt of copy of this order.
    3. The opposite parties are hereby directed to pay a sum of  Rs. 35,000/- (Rupees Thirty five Thousand Only) as compensation to the complainant.
    4. The opposite parties are directed to pay a sum of Rs. 3,500/- (Rupees three thousand five hundred only) as  cost of the proceedings to the complainant.
    5. The payment as afore stated shall be made within 30 days of the receipt of copy of this order, failing which, the amount of Rs. 35,000/- shall carry an interest of 9% per annum from the date of this order till actual payment.
    6. The liability of the opposite parties shall be joint and several.

Dictated to the Confidential Assistant, transcribed by her, corrected and pronounced by us in open Commission,  this the  29^th  day of November, 2024.

Date of Filing: 29.08.2024

     Sd/-                                                            Sd/-                                                               Sd/- 

PRESIDENT                                              MEMBER                                                    MEMBER                                

APPENDIX

Exhibits for the Complainant :

Ext A1 - Tax invoice dated 07/11/2022,

Ext A2 - Tax invoice dated 07/11/2022 for Eham ADLD phone secure plus mobiles and tablets,

Ext A3 - Job card dated 20/10/2023.

Ext A4 - Copy of the lawyer notice dated 03/02/2024.

Ext A5 - Copy of the lawyer notice dated 03/02/2024.

Ext A6 - Postal receipt.

Ext A7 - Postal receipts.

Ext A8 - Postal acknowledgment card.

Exhibits for the Opposite Party

Nil

Witnesses for the Complainant

PW1  -  Muhammed Shafi.K    (Complainant).

Witnesses for the opposite party

NIL                         

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PRESIDENT                                              MEMBER                                                    MEMBER                                

                                                                                    True Copy,      

                                                                                                          Sd/-  

                                                                                            Assistant Registrar.