By Sri. Chandran Alachery, Member:

The complaint is filed under Section 12 of Consumer Protection Act for an order directing the Opposite parties to replace the mobile and to pay compensation of Rs.10,000/- and cost of the proceedings.

2. Complaint in brief:- The Complainant purchased a Samsung S.7262 Galaxy Star Produal Sim Mobile for a sum of Rs.6,700/- from the 1^st Opposite party on 19.02.2014. The 1^st Opposite party promised repair and replace if there is any complaint. The product is having 1 year warranty. Even if mobile is double sim only one sim is working in it. The complainant contacted 1^st Opposite party and 1^st Opposite Party asked him to contact 2^nd Opposite Party being the service centre. On contacting 2^nd Opposite Party, the 2^nd Opposite Party told the Complainant that it is a software complaint. The 2^nd Opposite party told the complainant that there are some other defects to the mobile and it is not repairable but it can be replaced only after getting response from 3^rd Opposite party being the manufacturing company. Thereafter, the 2^nd Opposite party informed the Complainant that there is a small crack damage on the body cover of mobile and the software defect occurred due to the mobile fall from height and the company is not responsible. There was no damage occurred when the mobile was handed over to 2^nd Opposite party and it occurred only due to the mis handling of the mobile phone by 2^nd Opposite party. The Opposite Parties are not ready to give free repair or replace the mobile. Aggrieved by this, the complaint is filed.

3. On receipt of complaint, notices were issued to Opposite parties and 1^st and 3^rd Opposite Parties appeared before the Forum and filed version. 2^nd Opposite party not appeared and not filed version and 2^nd Opposite Party is set exparte. In the version of 1^st Opposite party, 1^st Opposite Party admitted the selling of mobile to the Complainant on 19.02.2014 for a sum of Rs.6,700/-. All other allegations in the Complaint are denied by 1^st Opposite Party, 1^st Opposite party is only a sales point and the service to the mobile are done by service centres. 1^st Opposite party assisted the Complainant to visit 2^nd Opposite Party. There is no deficiency of service from the part of 1^st Opposite party. In the version of 3^rd Opposite party, the 3^rd Opposite Party contended that the question of replace of the mobile set arises only if the same is suffering manufacturing defect of incurable nature. The mobile set of Complainant does not suffer any kind of manufacturing defect. Physical damage caused to the mobile set is not coverable by the terms and conditions of warranty. All other allegations are denied by 3^rd Opposite Party. There is no deficiency of service or unfair trade practice from the side of 3^rd Opposite party.

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

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

2. Relief and cost.

5. Point No.1:- The Complainant filed proof affidavit and is examined as PW1 and document is marked as Ext.A1. Damaged mobile handset is marked as MO1. Ext.A1 is the invoice issued by 1^st Opposite party to the Complainant at the time of purchasing the mobile. The Opposite Parties not adduced any oral evidence. On perusal of version of 1^st Opposite party, 1^st Opposite party stated that the 2^nd Opposite Party informed that the mobile had same defects with respect to its software configuration and after verification of the mobile, the Complainant was required to return the mobile set along with other accessories so that it could be replaced with a new set. Later, it is informed by 2^nd Opposite party that 2^nd Opposite Party found the set was in broken conditions due to fall from height. On verification of mobile by 1^st Opposite party, in the initial stage, no physical damage is noted. Thereafter, 1^st Opposite party got information from 2^nd Opposite Party that the Complainant brought the mobile having physical damage. The specific case of Complainant is that no such break happened to the mobile while he entrusted it to 2^nd Opposite party. It is up to 2^nd Opposite party to deny it and give adequate evidence in this aspect. But 2^nd Opposite Party is exparte in this case. 1^st and 3^rd Opposite Party got information from 2^nd Opposite party regarding the physical damage. Even though 1^st and 3^rd Opposite party filed version, 1^st and 3^rd Opposite party not adduced by oral evidence and not proved that the software defect arised due to physical damages. So by analysing the entire evidences, the Forum found that there is deficiency service from the part of 2^nd and 3^rd Opposite parties in dealing the matter. 1^st Opposite party is only a sales point and there is no deficiency of service and unfair trade practice from the side of 1^st Opposite party. Point No.1 is found accordingly.

6. Point No.2:- Since point No.1 is found in favour of Complainant. The complainant is entitled to get cost and compensation.

In the result, the complaint is partly allowed and the 2^nd and 3^rd Opposite parties are directed to replace the defective MO1 Mobile (Samsung S7262 Galaxy Star Produal Sim with IMEL No.359717056058981) with a new one of the same company and value to the Complainant. The 2^nd and 3^rd Opposite Parties are also directed to pay Rs.1,500/- (Rupees One thousand Five hundred) only as cost and compensation to the Complainant. On complying the order by 2^nd and 3^rd Opposite Parties, the Complainant is directed to return the defective MO1 Mobile set to 2^nd and 3^rd Opposite Parties. The 2^nd and 3^rd Opposite Parties are jointly and severally liable to 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 4^th day of July 2015.

Date of Filing:01.08.2014.

PRESIDENT :Sd/-

MEMBER :Sd/-

/True Copy/

Sd/-

PRESIDENT, CDRF, WAYANAD.

APPENDIX.

Witness for the complainant:

PW1. Eldho Complainant.

Witness for the Opposite Parties:

Nil.

Exhibits for the complainant:

A1. Invoice No.8259 dt:19.02.2014.

MO1 Mobile handset.

Exhibits for the opposite Parties.

Nil.