BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM AT BANGALORE URBAN

26^th DAY OF FEBRUARY 2015

             PRESENT:- SRI. J.N.HAVANUR              PRESIDENT

                              SMT. M. YASHODHAMMA    MEMBER    

O R D E R

SMT. M. YASHODHAMMA, MEMBER

This is a complaint filed by the complainant in person seeking direction against Opposite parties to refund Rs.15,990/- being the price of the mobile handset along with compensation of Rs.32,000/- with costs on the allegation of deficiency of service.

2.      The brief averments made in the complaint are as follows:

  On 13.07.2013 complainant through website of OP-1 placed an order for purchase of iberry Auxus Nuclea N1 smart phone vide order No.9025 for a sum of Rs.15,990/-.  The said product was delivered to the complainant on 08.08.2013 with IMEI No.358865031990850 & 358865031990868 (dual sim phone).  From day one of its purchase, complainant started facing problems with the brand new phone.  The phone would restart/shutdown automatically, there was disturbance on display, PDF files were not opening, the phone would charge only through USB cable and not through the charger, the phone would get heated up within 10 minutes of usage, battery would drain out very soon, all applications would open at the same time without touching the screen, phone would hang while calling were the problems faced by the complainant.  The complainant complained to OP-1 customer care and showed the phone to OP-2 but the problems still persisted.  Even after submitting handset for about 5 times to the service centre, problems were not resolved which was extremely frustrating.  Complainant asked OP-2 to replace the handset as the said phone is suffering from manufacturing defect.  But the executives of OP-2 did not agree to replace it, instead asked the complainant to send the handset to Chennai for analyzing.  Hence on 08.01.2014 complainant sent the handset to Chennai vide job card No.1318 and got handset back from Chennai on 27.01.2014.  When he checked the phone he shocked to see that the problems are still persisting.  In spite of repeated e-mails and notice, OPs failed to refund the amount of Rs.15,990/-.  Hence left with no alternative on 14.02.2014 complainant issued notice to OPs.1 & 2 calling upon OPs to refund Rs.15,990/- along with compensation of Rs.32,000/- within 15 days from the date of notice failing which he will be forced to file a ‘consumer’ complaint for deficiency of service.  There is no response from OP.  Hence, complainant has come up with the present complaint.

3.  After registration of complaint, notices were issued to Opposite Parties.1 & 2.  In spite of service of notice, OPs failed to appear and contest the matter.  Hence, OPs were placed ex-parte and posted the case for filing affidavit of complainant.

4.  So as to prove the case, the complainant has filed his affidavit evidence by way of evidence and produced documents along with complaint.  We have heard the arguments of the complainant.  We have gone through the oral and documentary evidence of the complainant meticulously.

5. One Mr.Joseph Deepak Kumar, who being complainant has filed his affidavit evidence in support of complaint averments stating that OP-1 is company; OP-2 is service center of OP-1.  On 13.07.2013 through website of OP-1, complainant placed an order for purchasing iberry Auxus Nuclea N1 smart phone vide order bearing No.9025 for a sum of Rs.15,990/-.  The said product was delivered to the complainant on 08.08.2013 with IMEI No.358865031990850 & 358865031990868 (dual sim phone).  From day one of its purchase complainant faced problems with the brand new phone.  The phone would restart/shutdown automatically, there was disturbance on display, PDF files were not opening, the phone would charge only through USB cable and not through the charger, the phone would get heated up within 10 minutes of usage, battery would drain out very soon, all applications would open at the same time without touching the screen, phone would silent while calling, were the problems faced by the complainant to name a few.  Complainant complained about the same to OP-2 who is the customer care of OP-1 but the problems still persisted.  Even after submitting the phone for 5 times to the service centre, the problems were not resolved which was extremely frustrating.  Hence complainant requested OP-2 to replace the phone since the phone is clearly suffering from manufacturing defect.  But the executives of OP-2 did not agree to replace the same instead asked the complainant to send the handset to Chennai for analyzing.  On 08.01.2014 complainant sent the handset to Chennai vide job card No.1318 and got the phone back on 27.01.2014.  When he checked the phone he was shocked to see that the problems which are mentioned in the job card given by OP-2 are still persisting.  Hence, the complainant prayed to allow the complaint and grant the relief as prayed in the complaint.

6. The above said assertions of the complainant have been remained unchallenged.  The OPs have neither filed their version nor denied the sworn testimony of the complainant.  So under the circumstances, we have no reasons to disbelieve the sworn testimony of the complainant.

7. Let us have a cursory glance at the documents produced by the complainant.  Document No.1 is the purchase order placed by the complainant to OP-1 dated 20.07.2013 for purchasing Auxus Nuclea N1 for a sum of Rs.15,990/-.  Document No.2 is the mail sent by OP-1 dated 20.07.2013 acknowledging receipt of amount of Rs.15,990/- through SBI net Banking payment made through credit card.  Document No.3 is job card issued by OP-2 to the complainant dated 08.01.2014.  Document No.4 is the mail sent by complainant to OP-1 dated 08.12.2013 with regard to the problems he faced with his mobile handset along with reply mail of OP-1.  Document No.5 is the e-mail correspondence made by the complainant to OP-1 from 12.08.2013 to 29.01.2014.  Document No.6 is copy of notice issued by the complainant dated 14.02.2014 calling upon OPs to refund Rs.15,990/- along with compensation of Rs.32,000/- within 15 days failing which complainant will approach ‘consumer’ Forum for appropriate relief.   

8. On perusal of the complaint of complainant on the background of oral and documentary evidence, it is made clear that the complainant had placed an order to purchase iberry Auxus Nuclea N1 smart phone through OP-1 website on 13.07.2013 for a sum of Rs.15,990/- as per document No.1.  The said product was delivered to the complainant on 08.08.2013 along with dual sim bearing IMEI No.358865031990850 & 358865031990868.  It is contended by the complainant that from day one of its purchase he faced lot of problems with the handset like automatic restart/shutdown, disturbance in display, charging problem, battery draining and hanging etc.  Hence complainant approached OP-2 customer care service but the problem is still persisted.  Even after submitting the phone for more than 5 times to the service center problems did not solve.  Hence complainant sought for replacement of the phone with OP-2.  OP-2 failed to replace the handset and informed the complainant to send the handset to Chennai for analyzing.  Accordingly complainant has sent the handset to Chennai on 08.01.2014 and got his handset back on 27.01.2014 as per document No.3.  In spite of repeated requests, e-mails and correspondence OPs failed to rectify the defects.  Hence complainant got issued notice to OPs.1 & 2 on 14.02.2014 demanding refund of Rs.15,990/- along with compensation of Rs.32,000/- towards mental agony within 15 days failing which he will file a ‘consumer’ complaint for appropriate relief as per document No.6.  In spite of said notice, OPs failed to replace or refund the amount to the complainant.  Hence, this complaint.

9. So after going through the material evidence of the complainant, it is made clear that the mobile handset supplied by OP-1 to the complainant is a defective one.  In spite of repairs by OP-2 as per document No.3 job card, the defects were persisted, hence complainant could not make use of the handset.  In spite of repeated e-mail, correspondence and notice, OPs failed to rectify the defects or to refund the amount.  Within the period of warranty complainant is entitled for free service, replacement or refund of the cost of the handset.  Having paid a sum of Rs.15,990/- complainant could not make use of handset.  Hence, we are satisfied that the complainant proved the deficiency of service on the part of the OPs.  Under the circumstances, we are of the considered view that the complainant is entitled for refund of Rs.15,990/- within 30 days from the date of this order failing which OP shall refund the said amount along with interest at 6% p.a from the date of complaint till realization and to pay Rs.2,000/- towards litigation cost.  Accordingly, we proceed to pass the following:       

O R D E R

The complaint filed by the complainant is allowed in part.    OPs.1 & 2 are jointly and severally directed to refund Rs.15,990/- to the complainant within 30 days from the date of this order, failing which OPs shall refund the said amount along with interest at 6% p.a on the said amount from the date of complaint to till the date of realization.  Further OPs are directed to pay litigation cost of Rs.2,000/- to the complainant.

After receipt of the entire amount from OPs as ordered the complainant is directed to return the iberry Auxus Nuclea N1 smart phone to OPs.

          Send the copy of the order to both the parties free of costs.

(Dictated to the Stenographer and typed in the computer and transcribed by her, verified and corrected, and then pronounced in the Open Court by us on this the 26^th day of February 2015)

MEMBER                                                                  PRESIDENT

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COMPLAINT NO.533/2014

Complainant                 -        Sri.Joseph Deepak Kumar

                                        -vs-

Opposite Parties           _        1) Managing Director,

IBERRY India, Chennai – 600001.

                                                          2) Manager,

3COM Technologies,

Bangalore-560021.

Witnesses examined on behalf of the complainant dated 24.07.2014

1) Sri.Joseph Deepak Kumar

          OPs -       Nil

MEMBER                                                                 PRESIDENT

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