DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD

Dated this the 20^th day of January, 2023

Present   :   Sri.Vinay Menon V., President

              :   Smt.Vidya A., Member                       

              :  Sri.Krishnankutty N.K., Member        Date of filing: 30.11.2020                                                                                         

CC/153/2020

        Shoujath.K

        D/o Muhammedali

        Karukkil Kizhakkekkara House

        Manaladi, Thenkara post

        Mannarkkad Taluk

        Palakkkad – 678 582                                         -         Complainant

        (Party-in-person)

                                                           V/s

  1.    Proprietor

         Cello Mobiles

         Hospital Junction, Mannarkkad

         Palakkad – 678 582

         (By Adv. S.M.Abu Thahir)

   2.   Managing Director/Manager

Xiaomi Technology India Pvt. Ltd.

         Ground floor, AKR Infinity, Sy. No.113

         Krishna Reddy Industrial Area

         7^th Mile, Hosur Road, Bengaluru

         Karnataka – 560 068

         (Ex-parte)                                                          -        Opposite parties

O R D E R

          By Smt. Vidya.A, Member

    1.  Pleadings of the complainant in brief 

      The complainant purchased a mobile phone Redmi 7A from the 1^st opposite party on 10/12/2019 for an amount of Rs. 6,500/-.  After 3 months of its use, the phone stopped functioning and its touch screen went unresponsive.  Since it was lock down due to Covid-19, she could not approach the 1^st opposite party to get it repaired.  After that when the shops turned operational, she approached the 1^st opposite party and handed over the phone, original bill and the box to be send to the 2^nd opposite party manufacturer, on 15/08/2020.

                         The phone was returned on 21/08/2020 and they charged Rs.200/- as transportation charge even though it was in warranty period.  She paid the amount and received the phone as it was necessary for her to attend the on-line class for her niece.  After 4 days i.e. on 25^th August, the phone again stopped functioning and she entrusted it with the 1^st opposite party and got it repaired on 29^th August.  After 2 days, again the phone started malfunctioning and she gave it to 1^st opposite party for repair 02/09/2020.  Then she continuously contacted them to get the phone repaired.  But their response was “not repaired yet”.  Eventhough they provided an old phone, it was not useful as it got heated very soon and could not use even to make a call.  Finally they asked to return their phone on 24/11/2020 and told the complainant to take back her unrepaired Redmi phone.  They did not provide proper service and because of their conduct she had under gone mental agony, time loss and financial loss.  So she filed this complaint to get Rs. 6,500/-, being the cost of the damaged phone and Rs. 20,000/- as compensation for the loss of on-line classes of the child and Rs. 25,000/- for the mental and financial hardships suffered by the complainant.

2.   Complaint was admitted and notices were issued to the opposite parties.  Notice was served on 1^st opposite party.  But notice to 2^nd opposite party returned stating addressee left”.  So the complainant was asked to file e-mail id of the 2^nd opposite party.  Complainant produced fresh address of 2^nd opposite party.  Notice was served on them.  But opposite party-2 did not appear and file version.  So they were set ex-parte.  1^st opposite party did not file version; eventhough Vakalath was filed on behalf of them.

3.   Complainant filed proof affidavit in evidence and Exhibits A1 to A4 marked.  Eventhough Ext. A3 is mentioned in the proof affidavit as “mobile phone carry bag” it is not seen produced before the Commission.  Evidence closed and heard the complainant.  When it was taken for orders, 1^st opposite party filed 2 petitions IA 601/22 to re-open evidence and IA 613/22 to cross examine the complainant.  Both IAs were allowed.  Complainant was examined as PW1.  After advancing the case the 1^st opposite party filed IA 45/22 to re-open the evidence, and to waive the statutory period and accept the version.  All the IAs were dismissed.

4.   The following points arise for consideration in this case:

1. Whether there is any deficiency in service/ unfair trade practice on the part of opposite parties?
2. Weather the complainant is entitled to the reliefs claimed?
3. Reliefs as cost and compensation.

Point No: 1

5.   We have perused the affidavit and documents produced by the complainant.  Ext. A1 is the bill showing an amount of Rs. 6,500/-.  This is the Service Receipt No: 1341 issued by 1^st opposite party on 10/12/2019.  But the heading Service Receipt is struck down in this and amount of Rs. 6,500/- is shown under Service Charge.  In normal course, it appears to be the cost of the phone and Ext. A1 is given for sale of the phone.  Ext. A2 is the warranty card and Ext. A4 is the service receipt issued by 1^st opposite party for an amount of Rs. 200/- as the service charge.

6.              The complainant’s grievance is that the mobile phone purchased by her stopped functioning within 3 months.  She entrusted the phone with the 1^st opposite party and got it repaired.  But after 4 days it again stated malfunctioning.  Again the complainant approached them for repair.  The 1^st opposite party provided the complainant with an old phone.  But that was not useful as it got heated fast and could not use even for making a call.  They demanded to return the phone on 24/11/2020 and also returned her ‘Redmi’ phone without repairing it.  Her contention is that the opposite parties did not provide proper service and continued to hoax until the expiry of the warranty period.

7.     From the complaint averments, it is clear that the newly purchased phone become defective within 3 months itself.  Eventhough the 1^st opposite party had repaired it twice, the same problem persisted.  They provided another old phone to the complainant.  However it was not working and did not serve the purpose of attending on-line classes.  Finally they returned the complainant’s phone without making it functional.  So the service provided by the 1^st opposite party was not effective.

8.     Even after the service of notice, 2^nd opposite party did not appear and file their version and they were set ex-parte.  1^st opposite party appeared, but did not file version. 

9.     So prima-facie it is found that even after repeated repairs, the problems in the phone persisted.  Since the phone is within the warranty period, the dealer (1^st opposite party) is responsible to contact the 2^nd opposite party manufacturer to get the phone replaced/repaired.  They did not do the service effectively.  So there is deficiency in service on their part and they are responsible to compensate the complainant for that.

10.   Since the 1^st opposite party has failed to file version, they were permitted to cross the complainant based solely on the pleadings in the memorandum of complaint and documents submitted by the complainant.  During cross examination, 1^st opposite party challenged the sanctity of the documents produced by the complainant and alleged that they are forged documents.  But such contention is not tenable.  There was no objection from their part at the time of marking the documents.  Accordingly both receipts Ext. A1 and Ext. A4 are considered as issued by 1^st opposite party “Cello Mobiles”.  Further we observed that the 1^st opposite party issued a service receipt for the sale of phone instead of issuing GST Invoice, which is an unfair trade practice.  Ext. A4 is also issued by 1^st opposite party.  All the entries are handwritten.  The opposite parties did not enter the date in Ext. A4 and it is their fault.  1^st opposite party is also liable for the unfair trade practice of not issuing GST Invoice for the sale of the phone.  Point No: 1 is decided accordingly.

        Point 2 & 3

11.   In view of the decision in Point No: 1, the complainant is entitled to be compensated by the opposite parties.  The opposite parties are jointly and severally liable for the loss happened to the complainant.  When a newly purchased mobile phone becomes defective within short span of time, and could not serve the purpose for which it is purchased, the complainant would have definitely undergone mental agony and financial loss.  This caused her filing this complaint causing inconveniences and further expenditure.  So she is entitled to the reliefs.

                 In the result, the complaint is allowed.

1.    We direct the opposite parties to refund Rs. 6,500/- being the cost of the damaged phone together with interest at the rate of 9% from 10/12/2019 till realisation.
2.    We further direct the opposite parties jointly and severally to pay Rs. 10,000/- as compensation for their deficiency in service, Rs. 5,000/- as cost of litigation.

1^st Opposite party to pay the amount, to be reimbursed by 2^nd opposite party in their routine course of business.

3.     We direct the 1^st opposite party to pay Rs. 5,000/- for the unfair trade practice of not issuing a valid GST Invoice for the sale of phone.

Once the order is complied, the complainant is directed to return the defective phone to the 1^st opposite party.

                   The opposite parties shall comply with the directions in this order within 45 days of receipt of this order, failing which opposite party shall pay to the complainant Rs. 250/- per month or part thereof until the date of payment in full and final settlement of this order. 

Pronounced in the open court on this the 20^th day of January, 2023.

                                                                                            Sd/-

                                                                                   Vinay Menon V

                                                                              President                                                       

                                                      Sd/-

             Vidya.A

                           Member                                                                                                       

                                                                                            Sd/-

                                                                                 Krishnankutty N.K.

                                                                                          Member

APPENDIX

Documents marked from the side of the complainant

Ext. A1 – Bill No: 1341 dated 10/12/2019 (Original).

Ext. A2 – Warranty card dated 10/12/2019 (Original).

Ext. A3 – Mobile phone carry bag (Not produced).

Ext. A4 – Service Bill No: 1370 (Original).

Documents marked from the side of opposite parties – Nil

Witness examined from the complainant’s side:

PW1 – Shoujath.K – Complainant

Witness examined from the opposite parties side: NIL

Cost- Rs. 5,000/-

NB: Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.