IN THE CONSUMER DISPUTES REDRESSAL FORUM, PATHANAMTHITTA,
Dated this the 31st day of August, 2011.
Present : Sri. Jacob Stephen (President).
Sri. N. Premkumar (Member)
C.C.No.94/11 (Filed on 06.04.2011)
Between:
Prakash Kumar. P,
Neduvelil,
Thumpamon Thazham. P.O.,
Pathanamthitta – 689 632. ..... Complainant
And:
1. The Mobile Store (Reseller),
Deepa Tower, Deepa Junction,
Near KSRTC Bus Stad, Thiruvalla,
Pathanamthitta.
(By Adv. T.S. Radhakrishnan Nair)
2. Doctor Fone Services, (Service Centre),
Shop No.6, Basement Floor,
Makil Centre, Opp. Baselius College,
GS Road, Kottayam – 686 001.
3. Sony Ericsson Mobile Communications-
(India) Private Ltd., 4th Floor,
Dakha House, 18/17, WEA Karol Bagh,
New Delhi – 110 005. ..... Opposite parties
O R D E R
Sri. N. Premkumar (Member):
Complainant filed this complaint for getting a relief from the Forum.
2. Fact of the case in brief is as follows:- Complainant purchased a Sony Ericsson vivaz U5i mobile set on 27.09.2010 from the 1st opposite party. 2nd opposite party is the authorised service centre and the 3rd opposite party is the manufacturer. The camera of the said handset had some defects. Complainant entrusted it to 2nd opposite party for repairing. They replaced the camera unit and thereby rectified and returned it to him. On the way to home its display went blank and he returned it again on the same day. A month after they rectified the display and returned it. After one week the problem again came back. Complainant again entrusted it to 2nd opposite party.
3. The said mobile handset has a warranty for a period of one year. Complainant is working in Government service on daily wages. He has to take leave to meet the 2nd opposite party, which is far from his place. He sent 2 E-mail to 3rd opposite party but they had not responded. Hence this complaint for getting the price of the mobile set with compensation for mental agony and distress.
4. 1st opposite party entered appearance and filed version.
5. 1st opposite party’s contention is that, they are functioning as retailer and engaged in the business of selling mobile phones and other electronic gadgets. They had got a chain of outlets operating through out India and has a very good reputation in the market. Warranty is provided by the manufacturer of the handset. For providing the warranty services the manufacturer has appointed its authorised service centre. According to them, the 2nd opposite party is the service centre and 3rd opposite party is the manufacturer. If any problem accrues in the mobile handset, the 2nd opposite party will cure the defects and replace the handset as per warranty conditions provided by 3rd opposite party. Therefore 1st opposite party is wrongly impleaded in this case. Complainant’s grievances are against 2nd and 3rd opposite parties. 1st opposite party is a separate distinct entity and does not have any control over the 2nd and 3rd opposite parties. Therefore, 1st opposite party is not liable for any deficiency of service.
6. 1st opposite party is getting the handsets from 3rd opposite party in sealed boxes and the same is removed from the box only in front of the customer at the time of sale. Moreover complainant has no case that the packet was unsealed or tampered. Once the handset is delivered to the purchaser, it becomes the responsibility of the purchaser to handle the same properly. If any inherent defect, it would have been detected at least the next day or within a week. In this case, the problem is only due to the careless handling of the handset by the complainant. Therefore, there is no deficiency of service on the part of 1st opposite party. The allegation if any is only against 2nd and 3rd opposite parties. Hence 1st opposite party canvassed for the dismissal of the complaint as against them.
7. Opposite parties 2 and 3 are exparte.
8. From the above pleadings, the following points are raised for consideration:
(1) Whether the complaint is maintainable before the Forum?
(2) Whether the reliefs sought for in the complaint are allowable?
(3) Reliefs & Costs?
9. Evidence of the complaint consists of the oral deposition of PW1 and Exts.A1 to A6. 1st opposite party has not adduced any oral or documentary evidence but they have cross-examined PW1. After the closure of evidence, both parties were heard.
10. Point Nos.1 to 3:- In order to prove the complainant’s case, complainant was examined as PW1 and the documents produced were marked as Exts.A1 to A6. Ext.A1 is the purchase bill for ` 19,129 issued by 1st opposite party. Ext.A2 is the warranty certificate issued along with Ext.A1. Ext.A3 is the customers acknowledgment card dated 8.1.11 issued by 2nd opposite party. Ext.A4 is the repair details dated 19.2.11 issued by the 2nd opposite party. Ext.A5 is the acknowledgment card dated 21.3.11 issued by 2nd opposite party. Ext.A6 is the copy of letter sent to 3rd opposite party. Ext.A6(a) is the postal receipt of Ext.A6. Ext.A6(b) is the postal acknowledgment of Ext.A6.
11. On the basis of the contentions and averment of the parties, we have perused the entire materials on record. Complainant’s case is that, he purchased a Sony Ericsson vivaz U5i mobile set. After three months, it became faulty. Opposite parties neither rectified the defects nor replaced the set even though it has one-year warranty. 1st opposite party’s contention is that they are only retailers and opposite parties 2 and 3 are service centre and manufacturer respectively. Therefore, they are liable for repair or replacement and 1st opposite party argued that they have not committed any deficiency of service against the complainant.
12. On a perusal of Ext.A1, it is seen that the first opposite party received ` 19,129 as price of the mobile set. Ext.A2 shows that the set has one year warranty. Ext.A3 to A5 shows that mobile set was repaired by 2nd opposite party more than once during the warranty period. According to complainant, the said defect has not yet cured. Ext.A6 shows that complainant sent a complaint to 3rd opposite party with regard to the non-functioning defect of the mobile set and demanded the replacement of the same. But they failed to respond so far.
13. According to 1st opposite party, they are only retailers and opposite parties 2 and 3 are liable for repairing and replacement. On a perusal of available materials on record and the relevant fact and circumstances shows that the 1st opposite party had not committed any deficiency of service. Opposite parties 2 and 3 neither appeared nor adduced any evidence to disprove the complainant’s case. Hence complainant’s case stands proved as unchallenged as against opposite parties 2 and 3.
14. It is not disputed that complainant’s mobile handset has become faulty during the warranty period. Even though 2nd opposite party repaired it twice, defects are not yet cured. Evidence shows that it is not repaired so far and it is not returned so far by the 2nd opposite party. 3rd opposite party has not heard the grievances of the complainant. Therefore, it is the boundan duty of opposite parties 2 and 3 to replace a new handset. Since 1st opposite party has not committed any deficiency of service, they are exonerated from the liability. Neither curing defect nor replacing the same by the 2nd and 3rd opposite parties is a clear deficiency of service by the 2nd and 3rd opposite parties. Therefore, complaint is allowable against opposite parties 2 and 3.
15. In the result, this complaint is allowed, thereby the opposite parties 2 and 3 are directed to replace the handset of the complainant by a new set of the same brand with compensation of ` 3,000 (Rupees Three Thousand only) within 15 days from the date of receipt of this order failing which the complainant is allowed to realise a total amount of ` 24,000 (Rupees Twenty Four Thousand only) from 2nd and 3rd opposite parties along with 9% interest from today till the realization of the whole amount.
Declared in the Open Forum on this the 31st day of August, 2011.
(Sd/-)
N. Premkumar,
(Member)
Sri. Jacob Stephen (President) : (Sd/-)
Appendix:
Witness examined on the side of the complainant:
PW1 : Prakash Kumar. P
Exhibits marked on the side of the complainant:
A1 : Bill for ` 19,129 issued by 1st opposite party to the complainant.
A2 : Warranty certificate issued by 1st opposite party to the complainant.
A3 : Photocopy of the customers acknowledgment card dated 8.1.11
issued by 2nd opposite party to the complainant.
A4 : Photocopy of the repair details dated 19.2.11 issued by the 2nd
opposite party.
A5 : Acknowledgment card dated 21.3.11 issued by 2nd opposite
party.
A6 : Copy of letter sent by the complainant to 3rd opposite party.
A6(a) Postal receipt of Ext.A6.
A6(b): Postal acknowledgment card of Ext.A6.
Witness examined on the side of the opposite parties: Nil.
Exhibits marked on the side of the opposite parties: Nil.
(By Order)
Senior Superintendent
Copy to:- (1) Prakash Kumar. P, Neduvelil, Thumpamon Thazham. P.O.,
Pathanamthitta – 689 632.
(2) The Mobile Store (Reseller), Deepa Tower, Deepa Junction,
Near KSRTC Bus Stad, Thiruvalla, Pathanamthitta.
(3) Doctor Fone Services, (Service Centre),
Shop No.6, Basement Floor, Makil Centre, Opp. Baselius
College, GS Road, Kottayam – 686 001.
(4) Sony Ericsson Mobile Communications (India) Private Ltd.,
4th Floor, Dakha House, 18/17, WEA Karol Bagh,
New Delhi – 110 005.
(5) The Stock File.
