By. Sri. Jose. V. Thannikode, President:-

The complaint is filed under section 12 of the Consumer Protection Act against the opposite parties to replace or repair the mobile and to get compensation and cost due to non repair of the defective mobile set.

2. The complainant has purchased a Mobile Phone, Samsung S5222 Duos Star 3 Mobile Phone on 15.12.2012 for an amount Rs.4950/- from 1^st opposite Party, at Sulthan Bathery. But during May 2013 the Phone has started showing Symptoms of charge dropping and losing of wallpaper from the screen intermittently. The Complainant has tried several time to keep on the charge the phone but every attempt was failed and the complainant come to know that the phone set has some severe problems. In pursuance of repairing the phone, during the month of May as well as in the first week of June the complainant approached the 1^st opposite party where in the complainant was returned with a reply that after a long charging of Phone the problem can be cured. The complainant after returning home tried several time doing long charge despite there was no improvement in the condition of phone. Again when the complainant approached to the first opposite Party they totally denied acceptance of phone mere stating that they are only the sales agent and the phone has to be repaired by Authorized service agency and thereby directed the complainant to approach opposite party No.2. When the complainant approached the opposite Party No.2, they stated that the repairs done by the 1^st opposite party was not proper. The rectification required in the phone was not properly carried out by 1^st opposite party, thereby the board was washed out. The phone cannot be repaired by simple method and it require Rs.3500/- to Rs.4000/- for changing the board otherwise nothing is possible it is stated. 2^nd opposite party has stated that being authorized service centre they cannot repair a phone which has heavy incurrences of repair charge specially with regard to the changing of board for replacing it to a new one, Other-wise they demanded Rs.3000/- as advance for repair. Thereafter 2^nd opposite party returned the item with a slip remarking "no charging, dead". Thereafter again the complainant approached 1^st opposite party but they turned down the request of the complainant and asked to pay the money as demanded by 2^nd opposite party. 1^st and 2^nd opposite parties were communicating each other on this case and they were acting hand in glow with each other to defeat the genuine request of the complainant. Due to the unfair trade practices on the part of opposite parties the complainant was in heavy problems to cope up his daily works. All these inconvenience were caused due to the negligence and deficiency of service which had affected the financial income of the complainant and also caused mental agony. The fatigue suffered by the complainant in shuttling from Bathery to Kalpetta many times has caused innumerable damages which cannot be weighed in terms of Money. Hence opposite parties are liable to pay compensation at the tune of Rs.20,000/- on that account alone and also liable for replacing the phone or rectifying it properly unconditionally. The cause of action for the complaint arose during May 2013 when the subject phone started showing symptoms of losing charge on 15.02.2013 and when the Mobile phone was purchased from 1^st opposite party and the repairs conducted at their level on those days. Thereafter on 12.08.2013 when 2^nd opposite party has fully denied the acceptance of phone for repair and there after during September when 1^st opposite party denied to entertain the complaint and every day there after at Sulthan Bathery Coming under the jurisdiction of this honorable forum. Complainant alleges that the act of opposite parties are deficiency of service, hence filed this complaint.

3. Notices were served to opposite parties, opposite parties entered appearance and filed version. On 04.03.2014 2^nd opposite party's counsel reported no instruction. Hence 2^nd opposite party is set ex-parte. In the version, 1^st opposite party stated that it is true that this complainant purchased Samsung Duos 5522 STAR 3 Mobile handset from this opposite party on 15.12.2012. But the allegation in the complaint that soon after purchase of this handset it started showing symptoms of charge dropping and loosing of wallpaper from the screen etc. are not correct. The further allegation of the complainant that he came to know that the handset is having several problems and hence he approached the 1^st opposite party and for which we reply that “after a long-charging the phone the problem can be cured”. The further allegation that the handset again shown the same problem and he again approached the 1^st opposite party, for which we did not given any advise but to approach opposite party No.2 are also not correct but cooked up story narrated by the complainant. The further allegation of the complainant that when he approached the 2^nd opposite party and they told him that the repair done by the 1^st opposite party was not proper by which the board was washed out so they can repair the handset only after payment of Rs.3,500 to 4,000 are also false and baseless allegation of the complainant. The further allegation of the complainant that the opposite party No. 1 & 2 with each other to defeat the genuine request of the complainant, hence this opposite party done unfair trade practice in this matter and that caused huge damages hence this opposite party liable to pay Rs.20,000/- compensation are false and baseless contentions of the complainant only for the purpose of filing this complainant. The actual fact is that after purchasing the handset, complainant approached the opposite party's showroom with a complaint that wallpaper was loosing. After hearing the complaint of the complainant the 1^st opposite party advise him to approach the 2^nd opposite party being the authorized service center. Accordingly the complainant directly approached the 2^nd opposite party. It is respectfully submits that this 1^st opposite party is totally unaware what are the things transparent there between the complainant and the 2^nd opposite party. But after few days this opposite party came to understand that the complainant handset caused this problem only because of "water entry" in the handset. It was detected by the opposite party No.2 and they informed that since the water entry detected the complainant is not entitled to get any warranty benefit. It is respectfully submits that this opposite party never done any deficiency in service in the above matter. The problem may caused only because of the careless handling of handset by the complainant. There is no manufacturing defect alleged by the complainant. Here the complainant approached the service center and all incidents are took place between the complainant and the service center. It is respectfully submits that the complainant purchased this particular brand of handset as his own will and wish. Even though we are having a multi branded mobile handset in all International brands including Nokia, Samsung, Blackberry, Sony etc, he chosen the particular brand and model of his own wish and will. Since we neither done any unfair trade practice nor do any deficiency in service, we are not liable to refund the cost of handset and to pay an amount of compensation as alleged by the complainant. Since the water entry detected by the service center, the complainant is not entitled to get any free of cost benefit from the service center. This opposite party respectfully submits that since the authorized service center not recommended for a replacement, we are not in a position to replace the handset also. Hence prays to dismiss the complaint.

4. Complainant filed proof affidavit and stated as stated in the complaint and he is examined as PW1 and Ext.A1, A2 and Ext.C1 are also marked. Ext.A1 is the Bill issued by the 1^st opposite party to the complainant. Which shows that the mobile set purchased by the complainant on 15.12.2012 from the 1^st opposite party and value of the mobile set was Rs.4,950/- and also show the warranty of six moths and also shows that for samsung set, authorized service center is 2^nd opposite party. Ext.A2 is the Job sheet given by the 2^nd opposite party to the complainant, where in the date of return back the set to the complainant is shown as 12.08.2013. The set's IMEI number is same as in the Ext.A1 and customer name is as in the Ext.A1 and the complaint noted as “no charging-dead”. It shows that it is not charging and dead condition. It is pertinent to note that the 2^nd opposite party the service center not reported any manufacturing defect and not noted any physical damage and not noted any cause for the reported complaint. Ext.C1 is the Commissioner Report, which reported that “the complaint is due to software complaint and can be traced to manufacturing defect. The screen display is divided into two equal halves with the menu items appearing in each half. The chance of water entry causing that problem is remote and can be ruled out. Further such a defect cannot occur in normal course”.

5. 1^st opposite party filed proof affidavit and stated as stated in the version and he is examined as OPW1 and denied all the allegation in the complaint.

6. On perusal of complaint, version and documents the Forum raised the following points for consideration:-

1. Whether there is any deficiency of service from the part of opposite parties?

2. Relief and Cost.

7. Point No.1:- Ext.A1 proves that the complainant purchased the mobile set from the 1^st opposite party on 15.12.2012 for Rs.4,950/- and it given 6 month warranty. Complainant deposed that the mobile set shown symptoms of charge dropping and losing of wallpaper from the screen intermittently in the month of May 2013 itself ie after 5 months of purchase. It was admitted by the 1^st opposite party in their version. In the version 1^st opposite party stated that “he came to know that the handset is having several problems and hence he approached the 1^st opposite party and for which we reply that after a long charging a phone, the problem can be cured”. It is not denied by the 1^st opposite party. And the contention of the complainant that the mobile set is entrusted to 2^nd opposite party within the warranty period is not disproved by 2^nd opposite party. Hence we opine that the mobile set entrusted with 2^nd opposite party within the warranty period. Since the 2^nd opposite party not mentioned the warranty issue in Ext.A2, we are in the opinion that the 2^nd opposite party is the only person to say whether the mobile set is entrusted after the warranty period or not or any physical damage or any handling defect or manufacturing defect. But the 2^nd opposite party has only stated in the Exhibit that “No charging-dead”.

8. It itself shows the deficiency of service from the side of 2^nd opposite party and not rectifying the defects of the mobile set is also clear deficiency of service from the side of 2^nd opposite party. Hence the Point No.1 is found accordingly.

9. Point No.2:- Since the Point No.1 is found against the 2^nd opposite party, 2^nd opposite party is liable to cure the defects of the mobile set and to pay cost and compensation and the complainant is entitled for the same.

In the result, the complaint is partly allowed and the 2^nd opposite party is directed to rectify the defects of the complainant's mobile set ie Samsung S 5222 Duos Star 3 bearing IMEI No.354319052211576 and also directed to pay Rs.10,000/-(Rupees Ten Thousand) as compensation and Rs.3,000/- (Rupees Three Thousand) as cost of the proceedings to the complainant. The 2^nd opposite party should comply the Order within 30 days from the date of receipt of this Order.

Dictated to the Confidential Assistant, transcribed by him and corrected by me and Pronounced in the Open Forum on this the 21^st day of May 2015.

Date of Filing:08.11.2013.
PRESIDENT :Sd/-

MEMBER :Sd/-

/True Copy/

Sd/-

PRESIDENT, CDRF, WAYANAD.

APPENDIX.

Witness for the complainant:-

PW1. Varghese. Complainant.

Witness for the Opposite Parties:-

OPW1. Nishad. Manager, 3G Mobile World, Sulthan Bathery.

Exhibits for the complainant:

A1. Retail Invoice. Dt:15.12.2012.

A2. Job Sheet. Dt:12.08.2013.

C1. Commissioner Report.

Exhibits for the opposite parties:-

Nil.

Sd/-

PRESIDENT, CDRF, WAYANAD.

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