D.O.F   -  28-12-2012

                                            D.O.O   -  06-03-2015

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

                Present: Sri.Roy Paul                   :    President

                             Smt.Sona Jayaraman.K. :    Member

                             Sri. Babu Sebastian        :    Member     

                              Dated this the 6^th day of March , 2015

CC.No.437/2012

Shylesh.K.K.,

Cheriyakongatta House,

Pathayakkunnu (PO),                                    :    Complainant

Thalassery (Via),

Pin – 670 691.

(Rep. by Adv.Ranjith.K.S.)

The  Proprietor,

Samsang Exclusive Service Centre,               :    Opposite Party

SB-5/22,

Near Makkani,

South Bazar,

Kannur – 2.

(Rep. by Adv.Babu Mandein      

O R D E R

Smt.Sona Jayaraman.K., Member

          This is a complaint filed by the complainant Under Section 12 of The Consumer Protection Act for directing the opposite party to pay compensation.

         The case of the complainant in brief is as follows:   The complainant had approached the opposite party on 18-09-2012 to repair the Samsung mobile set.  The opposite party had verified and told that it had some problem with display and it would be cured after repair.  According to the opposite party the cost will be Rs1,500.   As per the demand the complainant paid  Rs1,000 as advance and opposite party issued a receipt for the same.  At that time  opposite party agreed to repair the phone within one week.  But even though the complainant several times went to opposite party’s shop for mobile phone he did not get the mobile set.  So the complainant  was constrained to purchase a new mobile set.  Thereafter complainant sent a lawyer notice to opposite party demanding for the return of mobile set for which the opposite party sent a reply stating that the mobile phone was purchased from abroad and opposite party could not complete the repair process due to that.  The complainant had explained this fact to the opposite party at the time of entrustment itself.  So the dragging of complainant for a period of four months without any reason is a deficiency in service from their part.  Hence this complaint.

          On receiving the complaint Forum sent notice to opposite party.  Opposite party appeared and filed their version. 

          As per the version of opposite party.  The complainant approached them with a complaint of display and opposite party checked and found that it was true and the display was cured and rectified by replacing LCD of the mobile set.  After that they contacted the complainant, but complainant never turned up positively and used to escape by giving lame excuses. Then on 18.09.2012 as per the request of the opposite party the complainant approached the opposite party to collect the mobile set which was repaired by the opposite party.  At that time the opposite party informed the complainant that the defect is to the PBA and it can be cured only by replacing the existing PBA.  As per the instruction of the complainant the PBA was replaced by the opposite party.  But when the opposite party tried to rewrite IMEI No. on PBA a message received to the effect that it is a foreign set.  IMEI number could be written only on Indian set.  The complainant has not disclosed that fact earlier and the opposite party could not carry out the repair completely because, the set was foreign.  So there is no deficiency in service from the part of opposite party and this complaint is liable to be dismissed.

          On the basis of the above pleadings the following issues were framed for consideration. 

1. Whether there was any deficiency in service from the part of opposite party?

2. Whether the complainant  is entitled to get any remedy?
3. Relief and cost.

The evidence in this case consists of the oral testimony of PW1, DW1 and Ext.A1 to A4.

Issue No.1

          Ext.A1 is the repair slip which shows that the mobile phone has been entrusted to opposite party for repair and Rs1000 has been received as advance.  In Ext.A1 document under the heading “Terms and conditions” the first and second clauses are as follows : (1) warranty repair will be carried out subject to warranty validation  check by service centre staff.  (2) For warranty validation  customer is required to carry valid warranty card/ proof of purchase and it is to be produced at the time of providing the product, else warranty service will not be provided.”  Although the counsel for the opposite party argued that the complainant has approached the opposite party by concealing the fact that it was a foreign set, it is not at all believable as per the terms and conditions of Ext.A1.  According to the complainant he has stated that fact at the time of entrustment itself.   It can be seen that opposite party has received Rs1000 as advance on the date of entrusting the product itself.  When the opposite parties were  aware of the fact that the set is a foreign one they could have returned the same to the complainant.  But that was not done so.  The complainant was constrained to visit the opposite party’s service centre several times without any result.  After receiving Rs1000 as advance the irresponsible attitude of the opposite party constitutes deficiency in service.  It can be seen that Ext.A2 lawyer notice was issued on 11.12.2012 and acknowledged on 13.12.2012 as per Ext.A3 card.  Ext.A4 the letter of opposite party was dated 13.12.2012.  That itself shows that the opposite party has responded to complaint only after receipt of Ext.A2 notice.  So all these acts and defaults of opposite party clearly shows the irresponsible attitude which leads to the deficiency in service from their part.  So Issue No.1 is answered in favour of complainant.

Issues No.2 & 3

          As the acts of opposite party clearly constitutes deficiency in service the complainant is entitled to get the remedy.  It must be seen that the mobile phone is still in the hands of opposite party.  So the opposite party is liable to refund Rs1000 to the complainant, which they received towards advance.  There is no dispute to the fact that the acts and defaults of the opposite party caused great hardships to the complainant.  So we are of the opinion that the opposite party is liable to pay Rs5000 towards compensation along with litigation cost of Rs1000.   Hence order passed accordingly. 

          In the result the complaint is partly allowed directing the opposite party to refund Rs1000 (Rupees One Thousand only) and compensation of Rs5000(Rupees Five Thousand only) along with litigation cost of Rs1000(Rupees One Thousand only).  The opposite party is liable to comply the order within one month from the date of receipt of this order failing which the complainant is at liberty to execute the order as per the provisions of the Consumer Protection Act, 1986.

    Dated this the  6^th day of  March, 2015

                    Sd/-                   Sd/-                   Sd/-

                          President           Member              Member

                                           APPENDIX

Exhibits for the complainant

A1-  Original bill dated 12-09-2012.

A2-  Copy of lawyer notice dated 11-12-2012.

A3-  Postal acknowledgement card.

A4-  Reply notice of O.P. dated 13-12-2012.

Exhibits for the opposite party:  

 Nil

Witness examined for the complainant

PW1- Complainant

Witness examined for the opposite parties: 

DW1- Shijil                                                                                                                      

                                                                   //Forwarded by Order//

                                                                 SENIOR SUPERINTENDENT