By. Smt. Beena. M, Member:
The complainant has filed the complaint under section 12 of the Consumer Protection Act. The case of the Complainant is that he had purchased one mobile phone Nokia 6 SMART Phone 0095 from Opposite Party No.1 for a sum of Rs.15,000/-on 06-02-2018 with the warranty of one year. It is averred by the Complainant that the mobile phone was not working properly as it was having hanging problem and its network gets disconnected itself. While checking the
-2-
network, it is shown that the network is showing 2G connection instead of 4G. The Opposite Party No.1 told that the problem is not with the hand set and it is a net work problem. The mobile set of the Complainant thereafter stopped working completely and the complainant contacted the Opposite Party No.1 into the land phone and informed the matter, he asked to approach service centre Kalpetta. The Complainant again called, then the sales man of the Opposite Party No.1 shouted and misbehaved. Thereafter he went directly to the Opposite Party No.1’s shop at Mananthavady and handed over the mobile phone and bill and returned to his house by the assurance of the Opposite Party No.I that he will clear the defects. Later he informed that there is no problem found with the phone, the issue is stuck off the phone and it will correctly function after switch off and restart. But after that also the phone showing several problems and on 03-08-2018 the phone completely dead and the complainant went to the shop of the Opposite Party No.1 and hand over the phone with sim card and external memory card. At that time only he knows that the service center of the mobile is at Calicut. When he approached the Opposite Party No.1 after one week pursuant to the assurance that he will cure the defect within one week. After that he intimated to the complainant that the problem is because water entered into
-3-
the mobile phone and demanded Rs.3,000/- for curing the defect. The complainant told that there is no chance to get water into the phone because he has been using the mobile phone with due care and caution. Later on 04-09-2020 the complainant went to the Opposite Party No.1’s shop and offered Rs.1,000/-. The salesman assured that matter will be informed to the Company and will call the complainant, then at about 7 P.M he informed that he could not get the company person and asked further time to contact them. After that there was no reply from the Opposite Party No.1 till 13-09-2018 and on the same day, a registered notice was received by the Complainant asked to collect the phone otherwise he must bear Rs.4,000/- as the cost occurred to cure the defect.
2. The complainant further averred that he is a Craftsman by profession due to defective mobile, he was unable to contact his customers, usually he sold his products through Whatsapp and through online. After brought the phone he could not properly contact with his customers and served the products to his customers due to the malfunctioning of the mobile phone and he sustained difficulties and damages. Now the phone, sim and memory card are with the Opposite Party No.1. Due to the act of the opposite party, the complainant has
-4-
suffered physical and mental harassment. Hence the present complaint is filed seeking the following reliefs;
(a) to issue directions to the Opposite party to repair the mobile phone or
replace the same with a new one for the same cost.
(b).to pay Rs.25,000/- as compensation and
(c).Rs.3000/- as legal expenses.
3. Upon notice, the Opposite Party No.1 appeared and filed version. The Opposite Party No.1 admitted the sale of the mobile phone and denied the other allegations. The Opposite party No.1 averred that the Nokia 6 phone is a 4G handset and it is having high performance also. Except some system hanging issue there is no other issues occurred within 6 months. It is very clearly realized on verifying the Browsing History/WhatsApp messages/Call logs. There is no latches or deficiency of service from the opposite parties party to give after sale services. After checking by the service centre it is found that water get into the phone and the display board get damaged and the matter was informed to the complainant. Warranty is not available if the phone is damaged by water. It is a fake complaint and he suppressed material facts and truth. The complaint was filed with the
-5-
intention of getting the phone repaired for free of cost and defaming the Opposite Party No.1’s institution. Hence Opposite Party prayed for dismissal of the complaint. The Opposite Party further contended that the company and the distributor are necessary parties and must be implead them in this case. After filing of the version of the Opposite Party No.1 the distributor and the company are impleaded as additional opposite parties 2 and 3 respectively. Opposite parties 2 and 3 are remained ex party as they were not filed their version and not turned up.
4. On perusal of complaint, version and documents the Forum raised the following points for consideration:-
1. Whether the opposite parties are liable to repair the defects
happened to the handset or replace it?
2. Whether any deficiency of service occurred from the opposite parties
side?
3. Whether the complainant is entitled to get compensation?
4. Relief and cost.
-6-
5. Point No. 1 to 4 :- For the sake of convenience and brevity all points are considered together.
For substantiate the case of the complainant, the complainant produced purchase bill, bill and registered notice issued by the Opposite Party No.1. Complainant filed chief affidavit and he examined as PW-1 and Ext. A-1 to A3 were marked. The documents produced by the complainant and the allegations set forth in the complaint are challenged by the opposite party No.1. The opposite party No.1 examined as OPW-1 and Ext.B-1 to B-5 were marked.
6. On going through the available records and submissions there is no dispute regarding the purchase of mobile hand set by the complainant from the 1st opposite party which was manufactured by the 3rd opposite party. It is true that the phone is damaged. But the first opposite party alleges that the complaint occurred due to the water getting into the phone and the display board had got damaged. During the pendency of the case the Opposite Party No.1 produced the mobile phone before the Forum. The complainant did not produce the warranty card before the Forum. According to the available documents, the damage to the mobile phone was due to the water getting into the phone. The burden of proof
-7-
on the compliant to prove the damages happened due to manufacturing defect and not gets water into the phone. The complainant had not taken any steps to examine the phone with an expert. As per the Indian Evidence Act the burden lies upon the Complainant and he has to prove that the mobile phone is defective and the Opposite Parties are not repaired its defect, the Complainant failed to prove the same. Mobile phone malfunction is a common complaint among consumers. As a manufacturer, they have a responsibility to repair the damaged product in the event that it is subsequently damaged. But, if the damage is out of warranty the complainant should pay the cost of repairing.
7. The Forum finds that there is no deficiency of service and latches from the Opposite parties side and the complaint has no basis and not entitled to get any relieves as prayed in this case.
In the result, the complaint is dismissed without cost.
-8-
Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Commission on this the 29th day of December 2020.
PRESIDENT :Sd/-
MEMBER :Sd/-
APPENDIX.
Witness for the complainant:-
PW1. V. Prakash. Handicraft Work.
Witness for the Opposite Parties:-
OPW1. Sunil. P. John. Manager.
Exhibits for the complainant:
A1. Invoice. Dt:06.02.2018.
A2. Copy of Receipt. Dt:03.08.2018.
A3. Copy of Notice sent by Opposite Party. Dt:12.09.2018.
Exhibits for the opposite parties:-
B1. Copy of Screen Shot from Backup Files.
B2. Copy of Receipt. Dt:03.08.2018.
-9-
B3. Copy of Service Job Sheet. Dt:06.08.2018.
B4(a). Photograph.
B4(b). Photograph.
B4(c). Photograph.
B5. Acknowledgment Card.
PRESIDENT :Sd/-
MEMBER :Sd/-
/True Copy/
Sd/-
SENIOR SUPERINTENDENT,
CDRC, WAYANAD.
