IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, KOLLAM

DATED THIS THE   13^th DAY OF OCTOBER 2022

Present: - Sri. E.M.Muhammed Ibrahim, B.A, LLM. President

     Smt.S.Sandhya   Rani. Bsc, LLB ,Member

     Sri.Stanly Harold, B.A.LLB, Member

                         CC.No.111/2022

Aadil, 18 years,

S/o Sudheer Karikkal,

Karikkal veedu,

Edakkulangara P.O., Kollam                                              :           Complainant

(By Adv.Z.A.Sukul Khadar)

                              V/s

1. The Proprietor,

     EMOZZ, H&J Mall, Lalaji Junction,

    Karunagappally, Kollam.

2. The General Manager,

    One Plus Mobile Manufacturing Company,

         5^th Floor Kabra Excelsior,Opposite Wipro Park,

    80 Ft.Road, Koramangala, 1^st Block,

     Bangalore, Karnataka.                                                  :      Opposite parties

ORDER

Smt.Sandhya Rani, B.Sc, LLB, Member

       This is a case based on a complaint filed U/s 35 of the Consumer Protection Act 2019.

The averments in the complaint in short are as follows:-

            On 18.01.2022 the complainant has purchased “One Plus NORD 28 GB/128GB 85171211 865185053711258”  mobile phone from the 1^st opposite party for Rs.29,999/- as per vide invoice No.B2COO1260/2122 manufactured by the 2^nd opposite party.  After two weeks usage the mobile phone abruptly turned off.  Even after several unsuccessful attempts on the part of the complainant the system refused to turn on.  Thereafter the complainant contacted the 1^st opposite party who has directed the complainant to take the phone to the  Authorized Company Service Centre at Thiruvananthapuram.  The said service centre informed the complainant that there is a crack in the interior of the phone.  But that information surprised him how such a defect arose as he neither dropped the phone nor the phone was broken when it was with him.  Again the complainant approached 1^st opposite party and as per his direction he contacted with Mr.Nithin, a representative of the 2^nd  opposite party One Plus Company who  in turn has directed to entrust the phone with their service centre at Kollam.  The staff at the company service centre removed the tempered glass of the phone and showed the crack in the phone to the complainant and said that the phone could not be replaced as the phone’s issue is categorized under the ‘Physical damage’ category.  Though the complainant took the phone to the 1^st opposite party and told them of the above situation, instead of considering the situation and invoking a solution the 1^st opposite party verbally abused and humiliated the complainant.  According to the complainant the above mentioned statements made by the staff of the respective service centers and the 1^st opposite party were purposeful with intend to conceal the manufacturing defect of the alleged phone and to evade their obligations towards the complainant.  The complainant is an LLB student who has purchased the mobile phone to attend daily online classes during the Covid Pandemic period.  Due to the abrupt malfunctioning of the same the purpose of the purchase became invaine .  The above mentioned circumstances have caused huge financial loss and immense mental agony to the complainant.  The above said act experienced from the opposite parties amounts to deficiency in service and unfair trade practice.  In the circumstances the complainant prays to grant the following reliefs 1) to direct the opposite parties to pay an amount of Rs.50,000/- as unliquidated damages to the complainant, for the immense pain and mental agony suffered by the complainant 2) to direct the opposite parties to pay the bill amount of the mobile phone price Rs.29,999/- or to deliver a new One Plus NORD 28GB/128 GB phone to the complainant 3) Any other relief in the interest of justice.     

Though notice was issued to the opposite parties they have failed to appear before the commission hence they were set exparte.  The complainant filed chief affidavit by reiterating the averments in the complaint and got marked Exts.A1 to A4 documents.  Heard the counsel for the complainant and perused the records.

Ext.A1 is cash invoice issued by 1^st opposite party.  Ext.A2 is copy of legal notice.  Ext.A3 is postal receipt and Ext.A4 is returned letter send to 2^nd opposite party.

The unchallenged averments in the affidavit coupled with Exts.A1 to A4 documents would establish prima facie that the complainant had purchased a ONE PLUS NORD 28GB/128 GB 85171211 865185053711258 mobile phone on 18.01.2022 from 1^st opposite party by paying Rs.29,999/-.  But within two weeks of its purchase the smart phone became defective by switching off and overheating.  On an examination of the phone by authorized service centre of the 2^nd opposite party manufacturing company revealed that the product had an internal crack but the genesis of which was not explained by the service centre which confirms that the defect occurred at the time of manufacturing.  Being the seller of the product the 1^st opposite party was required to take reasonable care in inspecting, maintaining and ensuring  that the product is not defective before  selling the same to the complainant.  Hence the seller is equally liable to compensate the complainant as that of the manufacturer.

It is pertinent to note that the service centre of 2^nd opposite party manufacturing company did not take any initiative to examine the phone with intend to identify whether the damage caused to the phone is either due to manufacturing defect or due to customer induced defect while the burden of proving the same casted upon them.

It is an established fact that opposite parties are under an obligation to keep the mobile phone in perfect working condition at least for a period of 12 months from the date of its purchase.

On evaluating the entire materials discussed above we hold that there exists deficiency in service and unfair trade practice on the part of opposite parties 1 & 2.

In the circumstances we are of the view that the complaint is only to be allowed.

            In the result complaint stands allowed in the following terms:-

1. The opposite parties 1 and 2 are directed to substitute a brand new mobile phone of the same  value and specifications to the complainant or to repay its price of Rs.29,999/- and also directed to pay Rs.5,000/- as compensation for mental agony and financial loss caused to the complainant.
2. The opposite parties 1 and 2 are directed to pay Rs.3,000/- as costs of the proceedings.
3. The opposite parties 1 and 2 are directed to comply with the above directions within 45 days from the date of receipt of a copy of this order failing which the complainant is entitled to realize the amount Rs.34,999/-(29,999+5,000) along with interest @ 9 % per annum from the date of the complaint till realization along with costs Rs.3,000/- from the opposite parties 1 and 2 jointly and severally and from their assets.

Dictated to the Confidential Assistant  Smt. Minimol S. transcribed and typed by her corrected by me and pronounced in the  Open Commission this the 13^th   day of  October  2022. 

S.SANDHYA RANI:Sd/-                     

E.M .MUHAMMED IBRAHIM:Sd/-

                                                                                                                                                                   STANLY HAROLD:Sd/-

 Forwarded/by Order

                                                                                                                    Senior superintendent

INDEX

Witnesses Examined for the Complainant:-Nil

Documents marked for the  complainant

Ext.A1            : Cash invoice issued by 1^st opposite party

Ext.A2            : Copy of legal notice.

Ext.A3           : Postal receipt

Ext.A4          : Returned letter send to 2^nd opposite party.

Witnesses Examined for the opposite party:-Nil

Documents marked for opposite party:-Nil