IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM

DATED THIS THE 20^th  DAY OF DECEMBER 2021

Present: -    Sri. E.M.Muhammed Ibrahim, B.A, LLM. President

Smt.S.Sandhya   Rani. Bsc, LLB ,Member

Sri.Stanly Harold, B.A.LLB, Member

    CC.No.21/2018

Indulal,

S/o Vidhyadharan,

Residing at Thushara,

Panachivila Edamulakkal Village,

Anchal, Kollam.                                                    :         Complainant

(By Adv.Sreenadh S.)

V/s

1.    The Manager,

      Mobiz Mobile, R.O.Junction, Anchal,

      Kollam.

2.  The Manager,                                                      :          Opposite parties

     OPPO Exclusive Service Center

      by pace Tel Systems,

     Krishnajyothi Complex,

    Near Indian Bank, Polayathode, Kollam.

     (By Adv.Anoob K.Basheer)

3.    The Manager, Head office Oppo mobile,

​              2^nd Floor,Block 1,Vatika Business Park,

            Sohna Road, Sector 49, Gurgaon, Haryana.

            (Deleted as per order dated 26.03.2021)

    ORDER

Smt.Sandhya Rani, B.Sc, LLB, Member

1.       This is a case based on a complaint filed U/s 12 of the Consumer Protection Act 1986.

2.       The averments in the complaint in short are as follows:-

          On 22.11.2017 the complainant has purchased a mobile phone bearing No. OPPO F3-865245031975373 from 1^st opposite party Mobiz Mobile Anchal by paying Rs.19,990/-.  At the time of purchase the sales man representing 1^st opposite party Mobiz Mobile pleasingly made the complainant to believe that OPPO mobile phone company is very genuine and trustworthy company  for mobile headsets and after purchase services and also assured that if there arise any complaint with respect the mobile phone, it will be get replaced by the 2^nd and 3^rd opposite party within 7 days of purchase of the mobile phone.  The complainant gave the said mobile phone to his wife and daughter to use while travelling and their stay at CBSE SAHODAYA KALOTSAV at Thrissur, so that the complainant would be able to keep in touch with them and know their wellbeing.  But on the very first day of purchase itself the battery of the mobile drained out so fast that is within two hours as against the guarantee made by the sales representative of 1^st opposite party that the battery can be used for 3 days in one full charging .  Though the complainant had tried to contact with his wife and daughter who were left for CBSE SAHODAYA KALOTSAV held at Thrissur district he couldn’t touch in contact with them since the mobile phone’s battery had become empty within two hours and the phone got switch off in no time.  So he had to go Thrissur to realize the wellbeing of his wife and daughter.  Thereafter on 25.11.2017 the complainant had informed the 1^st opposite party that the mobile phone is having manufacturing defect and the phone will be replaced by 2^nd and 3^rd opposite party for that the mobile along with whole documents should be send to the company but after few days 1^st opposite party informed the complainant that they would not replace the mobile.  Thereafter the complainant had send legal notice to opposite parties on 27.12.2017 and it was received by them but they didn’t respond to the same.  The above conduct of the opposite party caused mental agony as well as financial loss to the complainant which cannot be compensated in terms of money.  Hence he filed the present complaint praying to pass an order directing the opposite parties.

1. To return the amount of rs.19,990/- received as the price of mobile
2. To pay compensation of Rs.80,001/- to the complainant for the deficiency in service and violation of terms on the part of opposite parties.
3. Direct the opposite party to pay the cost of the complaint.

3.       1^st opposite party set exparte.  3^rd opposite party was deleted from party array.

4.       2^nd opposite party filed version by stating that all the allegations made by the complainant are false and frivolous and the complaint has been filed with the ulterior motive to harass and defame the contesting opposite party.  The first contention raised by the 2^nd opposite party that there is no “manufacturing defect” to the mobile phone hence there is no “deficiency in service” rendered by 2^nd opposite party.    In the legal notice dated 16.12.2017 sent by the complainant addressed to Head Office OPPO Mobile it was clearly stated that the mobile will be replaced by the company.  That contradiction in the complaint and notice is the after effect of a fictious cooked up story.  Opposite party is only one among the service centres of the OPPO across the state.  No legal notice has been received by the answering opposite party from the complainant.  Therefore the contents of notice is not binding on 2^nd opposite party.  The statement in para 6  of the complaint is misleading and hence denied.  There is no deficiency in service or violations of terms on the part of 2^nd opposite party.  There is no cause of action against 2^nd opposite party and none of the demands made by the complainant is not only unreasonable but also without any legal right.  The complainant is not entitled to get any relief from the opposite party.  Hence this forum may be pleased to dismiss the complaint with the costs of 2^nd opposite party.   

5.       In view of the above pleadings the points that arise for consideration are:-

1. Whether there is any deficiency in service or unfair trade practice on the part of opposite parties 1 and 2 ?
2. Whether the complainant is entitled to realize the amount Rs.19,990/- received as the price of the mobile ?
3. Whether the complainant is entitled to get compensation for Rs.80,001/- for the deficiency in service and violation of terms on the part of opposite parties?
4. Reliefs and costs?

6.       Though sufficient time has been allowed the complainant was not turned up and adduced any oral evidence.  Documents produced along with the complaint are marked Ext.P1 to P3.  The 2^nd opposite party has not adduced any evidence either oral or documentary.  Neither the complainant nor the 2^nd opposite party filed any notes of argument.  Heard the counsel for 2^nd opposite party.

Point 1 to 3

7.       For avoiding repetition of discussion of materials these three points are considered together. The averments in the complaint coupled with Ext.P1 invoice would indicate that the complainant on 22.11.2017 at about 12.34 p.m.(noon) purchased the disputed mobile phone by paying Rs.19,990/- from the 1^st opposite party shop.  According to the complainant he entrusted the mobile phone to his wife and daughter to use the same while travelling in connection with CBSE SAHODAYA KALOTSAV at Thrissur.  But on the first day of mobile phone purchased it showed some defects.  According to the complainant the battery of the newly purchased mobile phone was draining out so fast which is against assurance made to the complainant while purchasing the mobile phone.  At the time of purchase the sales representative of 1^st opposite party made the complainant to believe and guaranteed that battery can be used for 3 days in one full charging of battery.  But after purchase it was found that battery has become empty after two hours.  It is well known to everybody that if a new mobile phone is purchased or a new battery is installed it is to be charged at least for 5 to 8 hours so as to make the new battery fully charged.  Usually a new battery is being installed in the new mobile phone.  It is called new since it has not been previously used or charged.  If it is not charged after purchasing a new mobile phone containing new battery the same can be used only for a few hours and thereafter battery has to be charged for 5 to 8 hours.  If the battery is fully charged the same will be working for two three days without recharging it.  In this case the complainant has no case either in the complaint or in the Ext.P2 lawyer notice that after purchasing the mobile phone he has charged the battery.  Therefore there is every chance of exhausting the charge filled in the battery within two three hours of its purchase.  The remedy available to the complainant is to recharge the battery by using a charger.  Then the mobile phone will be in a working condition. Without attempting to charge the battery by using a charger the complainant has been blaming the seller and manufacturer of the mobile phone.

8.       According to the complainant the above defect of draining out the charge in the battery is a manufacturing defect in the mobile phone and therefore he is entitled to get the mobile phone replaced by the 2^nd and 3^rd opposite parties or else he is entitled to get Rs.1,00,000/- as compensation for the loss suffered by the complainant for which he sent Ext.P2 notice.    It is crystal clear that the battery attached to a mobile phone or a vehicle is a separate unite which can be easily charged when the charge is exhausted or if the battery has become defective it can be well replaced by a new battery which will cost less than Rs.1,000/-.  Battery is not a integral part of the mobile set just like motherboard, screen, switch, keypad etc of the mobile phone.  If the motherboard of  a mobile phone is damaged or has become defective it can be stated that the mobile phone is having manufacturing defect.  But if the battery which is a separate unit which can be charged at anytime it cannot at any stretch of imagination be termed as manufacturing defect of the mobile phone.    Neither the manufacturer or wholesale or retail dealer of the mobile phone is liable to replace the mobile phone or to pay compensation simply because the charge of the battery is exhausted especially when the complainant has no case that even after recharging the battery the same is not become useful or the battery is not storing the charge.  Even if it is considered that the battery is totally defective and it is not capable of storing charge the remedy available to the complainant is not to purchase a new mobile phone but to replace the defective battery.  But the complainant has no claim to replace the battery nor he is having a case that the battery has become useless.  In view of the materials available on record we are of the view that the entire problem could have been solved by recharging the battery for 5 to 8 hours.

9.       The non-recharging of the battery within the stipulated time as instructed in the owners manual is a fault on the part of the complainant or his wife who used it.  Therefore this commission cannot found fault with any of the opposite parties.  It is interesting to note that the relief sought for the complainant is to direct the opposite party without specify which opposite party to return the amount of Rs.19,990/- received as the price of the mobile phone.  The date of purchase of the mobile phone is 22.11.2017 the complainant is seen filed on 22.01.2018.  He has not expressed anywhere in the complaint or anywhere in P2 lawyer notice that he is ready to return the mobile phone and receive back its price.  If the first prayer as such is allowed the complainant will be doubly benefited.  He can used the mobile phone by recharging the battery and also get returned the price paid by him as per P1 invoice.  The second relief sought for is Rs.80,001/- as compensation for deficiency in service and violation of terms on the part of the opposite parties.

10.     Here in this case the complainant has not proved any manufacturing defect or any major defect in the mobile phone except minor complaint of drained out the charge within two hours that to without recharging the battery.  In such circumstances the opposite parties are not bound to replace the mobile phone or return its price.  In fact the complainant has not sought for any relief to replace the mobile phone.  Materials available on record would not established any deficiency in service or any unfair trade practice on the part of the opposite parties.  The point answered accordingly against the complainant.

Point No.4

11.     In view of our finding with regard to Point 1 to 3 we hold that the complainant has not succeeded in establishing any deficiency in service or any unfair trade practice on the part of any of the opposite parties.  Therefore they are not liable to return the price nor entitled to pay any compensation as claimed.  We find no merit in the complaint and the same is only to be dismissed.

In the result complaint stands dismissed.

No costs.

Dictated to the Confidential Assistant  Smt. Minimol S. transcribed and typed by her corrected by me and pronounced in the  Open Commission this the 20^th  day of  December 2021.

         S.SANDHYA RANI:Sd/-

E.M .MUHAMMED IBRAHIM:Sd/-

STANLY HAROLD:Sd/

Forwarded/by Order

                                                                                       Senior superintendent

INDEX

Witnesses Examined for the Complainant:-Nil

Documents marked for the  complainant

Ext.P1             : Invoice dated 22.11.2017

Ext.P2             : Lawyer notice dated 16.12.2017

Ext.P3             : Postal receipt dated 27.12.2017

Witnesses Examined for the opposite party:-Nil

Documents marked for opposite party:-Nil