BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PONDICHERRY

C.C.No.57/2015

Dated this the  28^th  day of January 2016.

K. Vasanthakumar, son of Kuppan          

No.18, Mariamman Koil Street       

Pillaiyarkuppam           

Thondamanatham Post                   

Puducherry – 605 502.

                                                ….     Complainant

Vs.

1. The Managing Director

    Lava International Limited            

    A-506, Sector 64                    

    Noida – 201 301

    Uttarpradesh

2. The Proprietor              

    Mobile Zoo            

    No.468, Anna Salai          

    Puducherry – 605 001.                

3. The Manager                     

    Lava Xolo Service                  

    Guna Electronics 

    No. 245, Thiruvalluvar Salai

    1^st Floor, near Kumaran Gas Agencies

    Puducherry – 605 005.

                             .                                     ….     Opposite Parties

BEFORE:

          THIRU.A.ASOKAN, B.A., B.L.,

          PRESIDENT 

Thiru V.V. STEEPHEN, B.A., LL.B.,

           MEMBER

FOR THE COMPLAINANT            :  K. Ravikumar,  Advocate

FOR THE OPPOSITE PARTIES:          :  Exparte

O R  D  E  R

(By Thiru. A. ASOKAN, President)

This is a complaint filed by the complainant under Section 12 of the Consumer Protection Act, 1986 praying to direct the Opposite Parties;

1. to replace the defective Q510 S IPS GOLD XOLO mobile phone manufactured by the 1^st Opposite Party and sold by the second Opposite Party to the complainant on 31.08.2014 with a new Q510 S IPS GOLD XOLO mobile phone or repay the sum of Rs.6,400/- being the price of the Q510 S IPS GOLD XOLO mobile phone.
2. To pay a sum of Rs.1,00,000/- towards compensation for the deficiency in service, unfair trade practice rendered by the Opposite Parties;
3. To pay a compensation of Rs.1,00,000/- for the deficient act of the 3^rd opposite party in continuing the unfair trade practice by sending a letter as if a brand new mobile is offered by way of replacement;
4. To pay a sum of Rs.1,00,000/- towards compensation for the loss sustained by the complainant in his Advocate profession due to loss of contact caused by the prolonged repair of the mobile;
5. To pay a sum of Rs.10,000/- to the complainant towards litigation expenses and cost of this complaint

2.  The case of the complainant is as follows:

          The complainant purchased a mobile phone namely Q510 S IPS GOLD XOLO mobile phone for a sum of Rs.6,400/- from OP2 on 31.08.2014 with warranty.  When the said cell phone was charged on 25.09.2014, it does not properly charged, therefore, the complainant approached the second Opposite Party who sent him to third Opposite Party who is the authorised service centre of LAVA Cell phones who in turn received the cell phone and requested the complainant to get back after service on 26.09.2014.  When the complainant went to the third Opposite Party to receive the cell phone, the third Opposite Party asked him to come on the next day i.e. on 27.9.2014 and then on 06.01.2014, the same was informed to the Customer care service provided by the first Opposite Party who assured the best of the service.  On 06.10.2014 the third Opposite party gave the mobile to the complainant and again on 7.4.2015 the said mobile phone could not be charged and the phone volume has become very low and thus became unusable.  On the same day, the complainant approached the third Opposite Party who received the cell phone and returned back after getting it repaired on 17.4.2015, however, the cell phone was worked for two days and against the problem started.  On 16.06.2015 the mobile phone could not be charged and the phone volume has become very low and thus become unusable and therefore, the complainant against gave the cell phone to the third Opposite Party who received the cell phone and issued work order memo No. 510004438137.  On 27.6.2015 the third Opposite Party returned the cell phone claiming to be repaired, the phone was worked for two days and again the problem started.  On 24.07.2015 the mobile phone could not be charged and the phone volume has become very low and thus become unusable and therefore, the complainant against gave the cell phone to the third Opposite Party who received the cell phone and issued work order memo No. 510004999328.  On 30.072015 the third Opposite Party returned the cell phone claiming that the problems could not be rectified.  On 01.08.2015 the complainant approached the 2^nd Opposite Party to replace the defective mobile with a new one as assured by them when the mobile was purchased, but the second Opposite Party refused for replacement without taking any steps at least to bring the issue to the knowledge of the first Opposite  Party.  The complainant stated that within five months of purchase of the cell phone, the said unit was not function even after service / repairs.  Since the cell phone has manufacturing defect, the first and second Opposite Parties are liable to replace with a new mobile.  The act of the second Opposite Party in not taking any steps to the address the grievance of the complainant and the act of the third Opposite Party in dragging the complainant for several times under the guise of servicing the mobile is an unfair trade practice which caused mental agony to the complainant.  The complainant is an Advocate, due to not working of the mobile, his profession has been affected for which also, the opposite parties are liable to damages.  Hence, this complaint.

3.       The opposite parties remained absent and were set exparte.

4.       On the side of the complainant, he has chosen to examine himself as CW.1 and marked Exs.C1 to C3 and MOs 1 to 3.

5.  Points for determination are:

1. Whether the complainant is the consumer?
2. Whether the opposite parties attributed deficiency in service?
3. To what relief the complainant is entitled for?

6.  Point No.1:

          The complainant purchased one mobile phone Q510 S IPS GOLD XOLO for Rs.6,400/- from the OP1 on 31.08.2014 with one year warranty vide Ex.C1.    Hence, the complainant is the consumer.

7.       Point No.2:

          The complainant examined as CW1 and marked Exs.C1 to C3 and MO1 to MO3.  The Opposite Parties were duly served, but called absent and set ex parte.  The complainant submits that he has purchased one Q510 S IPS GOLD XOLO cell phone from the Opposite Party No.2 for Rs.6,400/- on 31.08.2014.  Ex.C1 is the original invoice issued by the OP2 for the alleged purchase made by the complainant.    The complainant further alleged that the said cell phone did not get proper charge and the phone volume became very low and ultimately, it became unusable.  It is alleged by the complainant that after 25 days of purchase i.e. on 25.09.2014 the cell phone did not get charge, immediately, he approached the second Opposite Party who asked him to approach the third Opposite Party who is the Authorised Service Centre of LAVA Cell phones.  The third Opposite Party received the said cell phone from the complainant and asked him to come on the next day i.e. on 26.09.2014.  When he went on the next day i.e. on 27.09.2014, the cell phone was not repaired and the complainant was asked to come and collect the cell phone on 06.10.2014.  On the said date i.e. on 06.10.2014, the mobile phone was handed over to the complainant.  The act of the third Opposite party was informed to the first Opposite Party's customer care who assured best service.  Again on 07.04.2015 the said mobile phone got same problem and therefore, the complainant handed over the same to the third Opposite Party on the same day and received it on 17.04.2015 after duly repaired.  The same defect was occurred on 16.06.2015 and hence, the complainant given the cell phone to the third Opposite Party on the same day for repair vide work order No. 510004438137 and the same was repaired by third Opposite party and returned on 27.06.2015.  Again the said defect was continued, on 24.07.2015 the complainant handed over the unit with the third Opposite Party vide work order No. 510004999328 dated 27.07.2015 (Ex.C3).  But, the third Opposite Party returned the mobile stating that the problem could not be rectified.  Hence, the complainant approached the second Opposite Party for replacement of new one as assured by them while purchasing the same, but failed to do so.  It is alleged by the complainant that he is practicing as an Advocate and without mobile, he could not contact his clients and thereby sustained loss in the profession and also due to the act of the Opposite Parties 2 and 3, he suffered mental agony and the same should be compensated.

8.       From the above facts and evidence adduced by the complainant, it is clear from Ex.C1 that the complaint alleged mobile phone was purchased by the complainant from the second Opposite Party on 31.08.2014 for Rs.6,400/- with warranty period of one year.   Ex.C2 shows that the warranty period for the transceiver is one year and for battery, charger and headset is six months from the date of purchase.  Hence, the mobile is under warranty period.   Further, on perusal of Ex.C3, the Job Sheet dated 24.07.2015 issued by the third Opposite Party, it is found that the said mobile phone was not getting charged  and the volume became low.  All the efforts taken by the complainant ended in vein, the purpose for which the mobile phone purchased by the complainant was not served.  But, it gave mental agony, loss and sufferings.  It is alleged by the complainant that when he reported the defect for many times and it could not be rectified by the second opposite party  from whom the complainant purchased the cell phone, they have neither replaced the unit and taken the issue with the manufacturer, the first Opposite Party refused to replace the cell phone.     To refute the contentions of the complainant and establish that the cell phone is in good working condition, the Opposite Parties did not turn up before this Forum to let in evidence even though they have received summons from this Forum.  The above act of the Opposite Parties clearly establish the complainant's case and hence, this Forum has come to the conclusion that the Complainant has proved the negligent act and unfair trade practice of the Opposite Parties.  Thus, the complainant is entitled for the claim and Opposite Parties are liable for their negligent act, deficiency in service and unfair trade practice.

          9. In respect of the allegation that he lost his business due to non-function of the cell phone, the complainant has not filed any documentary evidence, hence, the above said claim are not taken into consideration by this Forum.   However, as stated supra, the opposite parties are liable to return the cost of the cell phone and to pay the compensation and cost of this complaint to the complainant.

          10. The material objects are with the District Forum and the opposite parties are ordered to be collected the same from this Forum after compliance of this order.

11.     Point No.3:

          In view of the decision taken in point No.2, this complaint is hereby allowed and the Opposite Parties are directed to 

1. Return the cost of the mobile phone of Rs.6,400/- to the complainant;
2. Pay a sum of Rs.6000/-  as compensation to the complainant for the deficiency in service.
3. To pay a sum of Rs.5000/- as cost of the proceedings.

The above said order should be complied within two months from the date of receipt of this order.

Dated this the 28^th day of January 2016.

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

MEMBER

COMPLAINANTS' WITNESS:  

CW.1          11.11.2015           K. Vasanthakumar     

OPPOSITE PARTY'S WITNESS:  Nil

COMPLAINANTS' EXHIBITS:

OPPOSITE PARTY'S EXHIBITS: Nil

LIST OF MATERIAL OBJECTS:

MO1           One Q510 S IPC GOLD XOLO mobile phone with IMEI

911369300116925.

MO2           One battery No. CHY14G0056179

MO3           One charger No. S/N: TY14F0004247

1. ASOKAN)

PRESIDENT

(V.V. STEEPHEN)

     MEMBER