Per Sri A. Hazarath Rao,  President:-

        The complainant filed this complaint u/s 12 of the Consumer Protection Act seeking payment of Rs.7000/- being the cost of mobile; Rs.610/- being the cost of battery; Rs.2,00,000/- towards loss of memory in mobile; Rs.50,000/- towards compensation for deficiency of service and Rs.5,000/- towards legal expenses.  

2.   In brief the averments of the complaint are these:

        The complainant purchased Nokia model 6233 BP–6M mobile in February, 2008.   The complainant on 26-07-11 purchased battery for Rs.610/- from the 2^nd opposite party.   The complainant approached the 2^nd opposite party who in turn advised him to approach the 1^st opposite party.   The 1^st opposite party received the said mobile, changed the battery for the said mobile as it was under guarantee period.   The complainant stored much information and contact numbers in the said mobile being a retired BSNL-DGM.   The said information is not available any where.   The complainant noticed that there was no change in the condition of mobile even after replacement of battery.   The complainant again approached the 1^st opposite party at the advice of 2^nd opposite party.   The complainant informed the opposite party that there was no problem in the said mobile.   Inspite of that the 1^st opposite party demanded the complainant to handover the mobile.  Accordingly the complainant handed over the mobile to the 1^st opposite party on 03-01-12.  The 1^st opposite party informed the complainant that there will be no problem for the memory stored in the mobile.  But on the same day evening the 1^st opposite party through phone informed the complainant to receive the said mobile from Nokia service centre as there was no display of information.   Due to negligence of 1^st opposite party the memory and important files in the mobile phone were destroyed.   The complainant on number of occasions requested the opposite parties to return mobile in good condition but the opposite parties failed to do so.   The complainant thereupon got issued a notice to the opposite parties.   The 1^st opposite party intentionally avoided to receive notice.  The 2^nd opposite party though received notice kept quite.  The complaint therefore be allowed.         

3.  The 2^nd opposite party remained exparte.

4.   The contention of the 1^st opposite party in nutshell is hereunder:

        The 1^st opposite party is an authorized service agent of Nokia.  The 1^st opposite party replaced the battery only as it was during warranty period.   For replacing battery no one will touch the internal parts of mobile.  After that the 1^st opposite party never handled the said mobile of the complainant.   The 1^st opposite party did not take the complainant’s mobile for repair as alleged by him.   The 1^st opposite party if took complainant’s mobile for repair it will issue acknowledgment and job card.   The complainant did not file any document to prove that the 1^st opposite party took his mobile for repair.   The complainant retired as a DGM in BSNL and is quite aware that no one will touch inner parts of mobile to replace the battery.  The complaint was silent what are the things that the complainant stored in the mobile and the manner of assessing damages at Rs.2,00,000/-.   The loss of memory in complainant’s mobile was not due to replacement of battery but for other reasons known to him.   The 1^st opposite party did not receive any notice from the complainant.   The complaint therefore be dismissed with exemplary costs being vexatious.        

5.    Exs.A-1 to A-6 were marked on behalf of the complainant.  No documents were marked on behalf of the contesting 1^st opposite party.

6.  Now the points that arose for consideration in this complaint are these:

1. Whether the opposite parties committed deficiency of service?
2. Whether the complainant is entitled to compensation?
3. To what relief?

7.     POINT No.1:-     The complainant along with complaint filed office copy of notice with postal receipts (Ex.A-3), postal acknowledgment of the 2^nd opposite party  (Ex.A-4) and returned postal cover addressed to the 1^st opposite party (Ex.A-5).   In the returned postal cover (Ex.A-5) the concerned post man mentioned that 1^st opposite party avoided to take delivery of that cover.  The postal receipt in the name of 1^st opposite party coupled with the endorsement on Ex.A-5 leads us to draw an inference that the                     1^st opposite party refused to receive notice and thereby it amounted to constructive notice of its contents.   Under those circumstances the contention of the 1^st opposite party that it did not receive notice from the complainant is devoid of merit.  

8.     The complainant for the reasons best known to him did not file Ex.A-1 bill showing the replacement of battery on 26-07-11,                     Ex.A-2 job card and Ex.A-6 bill and thereby denied an opportunity for the opposite parties to deny or admit the truth or otherwise of them. 

9.     Ex.A-6 bill revealed that the complainant purchased Nokia 6233 mobile on 29-02-08.  The complainant did not file the warranty card attached to the said mobile for the reasons best known to him.  Ex.A2 is the job card given by the 1^st opposite party on 03-01-12.   Not filing Ex.A-2 along with complaint made the 1^st opposite party to deny issue of job card.  The learned counsel for the complainant relied on the endorsement made in Ex.A-2 job card in support of her contentions.  In Ex.A-2 job card dated 03-01-12 it was mentioned “quick discharge and blank display (data important)”.  The contention of the learned counsel for the 1^st opposite party that there was no display at all on the screen of complainant’s mobile while giving for repair is having considerable force. The words ‘blank display (data important)’ is with different ball pen from the words ‘quick discharge’ as rightly contended by the learned counsel for the complainant.  It is for the complainant to prove who wrote those words  ‘blank display (data important)’  when Ex.A-2 job card is with him from 03-01-12 till filing the same on 28-08-12. Under those circumstances the contention of the learned counsel for the complainant that the 1^st opposite party ingeniously endorsed those words ‘blank display (data important)’ cannot be accepted because it is not his case that the 1^st opposite party did the same as seen from his complaint.  

10.   The complainant in Ex.A-4 notice mentioned “No.1 of you received the mobile phone from my client on 03-01-12 and promised to my client that there will be no problem in the memory.  But on the same day evening you called my client through telephone number 9395311555 from one Satyam of No.1 of you and requested my client to receive the mobile phone from the Nokia service centre and there was no display of any information, collected and stored by my client”. In his complaint also the complainant mentioned “opposite party No.1                   received the mobile phone from the complainant on 03-01-12 and promised to the complainant that there will be no problem in the memory.  But on the same day i.e., on 17-01-12 evening opposite party No.1 called the complainant through telephone number 9395311555 from one Satyam of opposite party No.1 and requested the complainant to receive the mobile phone from the Nokia service centre and there was no display of any information, stored in the mobile memory of the complainant”.

The said averments clearly revealed that the 1^st opposite party on                03-01-12 itself required the complainant to take his mobile as there was no display of any information.  It was already observed that              Ex.A-2 job card revealed that the complainant’s mobile was not displaying any thing on the screen.   Under those circumstances, the 1^st opposite party cannot be found fault with loss of memory stored in complainant’s mobile.  At the same time it is the complainant who refused to take mobile from the 1^st opposite party though informed on 03-01-12 itself.   On that count also the 1^st opposite party cannot be found fault with.   The 2^nd opposite party replaced the battery once as it was in warranty period as seen from Ex.A-1.   We therefore opine that the opposite parties did not commit any deficiency of service and therefore answer this point against the complainant. 

11.  POINT No.2:-  In view of above findings, the complaint is not entitled to any compensation.  We therefore answer this point also against the complainant.   

        Ex.A-2 revealed that the complainant’s mobile is with the                         1^st opposite party.  In the absence of warranty card nothing can be inferred regarding complainant’s mobile which was purchased in 2008. Under those circumstances the complainant is at liberty to obtain return of mobile from the 1^st opposite party in the condition as mentioned in Ex.A-2.    

12.  POINT No.3:-     In view of above findings, in the result the complaint is dismissed without costs with an observation that the complainant is at liberty to obtain mobile from the 1^st opposite party in the same condition as mentioned in Ex.A-2.

 Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 4^th day of March, 2013.

          MEMBER                                                                      PRESIDENT

APPENDIX OF EVIDENCE

DOCUMENTS MARKED

For Complainant  :

For opposite parties:       NIL

                                                                            PRESIDENT

NB:   The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.