BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. P. SUDHIR                                       :  PRESIDENT

SMT. R. SATHI                                         :  MEMBER

SMT. LIJU B. NAIR                                  :  MEMBER

C.C. No. 557/2013 Filed on 31.12.2013

ORDER DATED: 29.06.2018

Complainant:

Shinu Thomas, Kalayil House, Pattu Kallu, Mayam P.O, Vazhichal Village, Neyyattinkara, Thiruvananthapuram.

(By Adv. C.S. Raj Mohan)

Opposite parties:

1. The Proprietor, Univercell Tele Communication India Pvt. Ltd., T.C 25/3665, Kesari Building, GPO, M.G. Road, Thiruvananthapuram.

2. The Proprietor, M/s HTC India Pvt. Ltd., G4 PPP Park Centre, Sector-30, NH 8, Gurgaon City, Hariyana-120 001.

3. The Proprietor, M/s Redington India Ltd., T.C 15/1805(2), Mahesh Estate, Vazhuthacaud, Thiruvananthapuram-14.

This case having been heard on 04.05.2018, the Forum on 29.06.2018 delivered the following:

ORDER

SRI. P. SUDHIR:  PRESIDENT

Complainant’s case is that he purchased a mobile phone (HTC Desire X) on 18.03.2013 from the first opposite party for an amount of Rs.17495/-the complainant was attracted by advertisement made by 2^nd opposite party forced to purchase the mobile phone manufactured by 2^nd opposite party. The 1^st opposite party assured that the mobile phone purchased by the complainant is of good quality having one year warranty and if any problem arises it can be easily replaced through the 3^rdopposie party who is the authorized service provider of the 2^ndopposie party.  On the very same day of the purchase itself the performance of the said mobile phone was not in part with the assurance made by the 1^st opposite party.  After one and half months of purchase the said phone is not getting properly charged and when it is connected for charging the handset start heating.  When it is connected to internet automatically power switch off taken place.  Complainant immediately took the mobile phone to the 3^rd opposite party as per the direction of the 1^st opposite party.  The 3^rd opposite party after examining the mobile phone told the complainant that the motherboard has to be replaced.  After 2 week the mobile phone was returned stating that mother board was replaced.  But it is interesting to note that the same problem persisted even after the replacement of mother board. Complainant on several times entrusted the mobile phone with the 3^rd opposite party but of no use.  On 23.07.2013 complainant handed over the mobile phone with the 3^rd opposite party and also an e-mail was sent to the 3^rd opposite party stating all the facts.  Reply was received by the complainant on 28.07.2013 stating that the 3^rd opposite party is ready and willing to rectify the defect.  But to utter dismay the complainant received the mobile phone on 02.08.2013 with the same problem that persisted in the mobile phone.  Again on 14.08.2013 the complainant entrusted the mobile phone with the 3^rd opposite party.  But it is returned on 20.08.2013 by the 3^rd opposite party without curing defects.  Opposite parties are not ready and willing to redress the grievances of the complainant.  Complainant had purchased a brand new HTC desire X mobile having number 355803051301727 based on the goodwill and assurance of the 2^nd opposite party.  Complainant had already spent an amount of Rs. 17,495/-.  But is not in a position to use the same.  All the opposite parties are jointly and severally liable for the miseries suffered by the complainant.  Hence complainant approached this Forum for refund of Rs. 17,495/- with interest and compensation. 

Notice sent to opposite parties and opposite parties 1 to 3 accepted notice.  Opposite parties 1 & 2 not turned up and they were set exparte.  3^rd opposite party appeared and filed version.  As per the version the contention taken by 3^rd opposite party is that the present complaint filed by the complainant claiming that the handset in question has defective problem and seeking refund of handset cost and compensation without impleading the importer of the handset in the complaint, deserves dismissal in limine on the sole ground of non-joinder of necessary parties, as M/s Bright Points India Ltd., Importer of HTC handsets is not impleaded as a party to this complaint and as such the present complaint is baseless and untenable before the eye of law.  The 3^rd opposite party submits that this 3^rd opposite party was one of the authorized service providers for the handsets manufactured by the 2^nd opposite party the manufacturer i.e HTC.  3^rd opposite party further submits that as per understanding with HTC, the manufacture of HTC handsets this opposite party provided repair service to HTC customers during warranty period as per the terms and conditions imposed on it by the manufacturer without receiving any consideration from the customers.  This opposite party submits that they do not possess manual call reports pertaining to service done by ‘Flextronics’ as they are maintaining a service link and the service reports were maintained in their system in electronic mode.  Moreover, this opposite party was assigned to render first level service, i.e; to collect the handset and forward to Flextronics, if the handset has hardware problems.  Further, this opposite party neither authorized to attend the hardware defects nor to issue replacement handset to the customers.  Therefore this opposite party cannot hold responsible for the repairs or services rendered by Flextronics whom specifically authorized to perform second level hardware service to the handsets/mobile phones manufactured by 2^nd opposite party i.e; HTC.  Complainant had approached this opposite party service centre and complaining of battery not charging in the handset.  The service engineer of this opposite party subjected the handset and found that the handset has hardware related issues, it has to be forwarded to Flextronics level 2 higher level service centre for further repair as per the terms and condition imposed by the HTC/manufacturer because this opposite party is neither authorized to open the handset nor to attend hardware defects.  Subsequent to complainant’s concurrence, the handset in question was forwarded to the said Flextronics, in turn repaired the handset and revamped into good working condition on the above said instance.  Meanwhile the service centre were unable to afford service to the complainant as the manufacturer had withdrawn its authorization of this opposite party as its authorized service provider and this opposite party is not a service provider in the said location.  In view of the above the service centre of the opposite party constrained to close their operations at Thiruvananthapuram.  The 3^rd opposite party conveyed the complainant that refund of handset cost is not within the scope of this opposite party as this opposite party is only a first level service provider operating within a limited scope as per the terms and conditions imposed by the manufacturer.  Moreover the demand towards refund of handset cost shall not withstand against this opposite party as the purchase consideration of the handset was not paid to this opposite party.  Assuming without admitting that the handset purchased by the complainant suffers a defect in functionally, the same could not be attributed to this opposite party as their scope is limited only to provide first level service support during warranty period and they had not sold the handset in question to the complainant.  Complainant seeks cost of handset from this opposite party and had filed the present complaint with unrealistic allegations claiming that the handset in question is defective and concocted the facts that this opposite party had not replaced the handset.  This opposite party is neither the manufacturer of the handset in question nor had sold the handset in question to the complainant.  This opposite party had not collected any amount towards the service rendered to the complainant.  This opposite party acted merely as a collection point and collected the handset from the complainant and forwarded the handset to the Flextronics appointed by the manufacturer for further repairs based on the complainant’s concurrence. 

Issues:

1. Whether there is any manufacturing defect in the mobile phone purchased by the complainant?
2. Whether the complainant is entitled for the reliefs sought for?

Issues (i) & (ii):- Complainant filed chief examination affidavit and Ext. P1 to P5 marked and expert commission report marked as Ext. C1.  3^rd opposite party filed chief examination affidavit.  To prove the manufacturing defect the mobile phone was examined by an expert to ascertain whether the mobile phone is having manufacturing defects (2) to ascertain whether battery getting charged, heating hand set while using internet automatically switched off.  (3) Such other matters pointed by the complainant during the time of inspection.  The expert commissioner examined the mobile phone and filed report.  The conclusion part is reproduced here:  “(1) Battery charging is not proper: In my study I couldn’t find any such things.  The battery charged up to 100% with two different chargers.  Moreover the charge/discharge seems to be normal for a 2 year old device.  (2) Heating during charging:  The heating during charging seems to be normal.  It may be noted that the chargers I have used was made by reputed companies.  The result might have been different if the charger the complainant had used was given for test.  (3) When it is connected internet automatically power switch off happens:  I didn’t experience any such things during my study.  It may be noted that I have browsed leading news sites, forums, shopping sites of good reputation.  And most importantly I have not installed any new app other than the factory installed ones.  None of the online games or offline games were tested on the device.  The device in dispute is performing normally as of now.  That doesn’t mean the complainant was completely wrong as I have tested the device after a factory reset and no software/date other than the company supplied ones were installed.  The complainant might have experienced all such issues as he pointed out, if he had some ‘apps’/data that could compromise the normal working of the phone and caused battery drainage.  Such things were out of my study as I had to do a factory reset on the phone.  I must add that by seeing the physical condition of the phone the complainants claim that he had not used the device for a long time seems genuine physically the phone is in a good condition”.  

Complainant has not filed any objection for this report.  Since the expert finds no defect in the mobile and it is functioning properly there is no room for discussing any further points.  Hence we are of the opinion that complainant failed to prove manufacturing defect in the mobile and we are constrained to dismiss the complaint without cost.

In the result, complaint is dismissed without cost.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 29^th day of June 2018.    

        Sd/-

P.SUDHIR                             : PRESIDENT

         Sd/-

R. SATHI                               : MEMBER

          Sd/-

LIJU B. NAIR                        : MEMBER

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C.C. No. 557/2013

APPENDIX

  I      COMPLAINANT’S WITNESS:

                             NIL

 II      COMPLAINANT’S DOCUMENTS:

P1     - Tax invoice issued by 1^st opposite party

P2     - Copy of call report

P3     - Copy of delivery note

P4     - Copy of legal notice dated 13.08.2013

P5     - Acknowledgement cards

III      OPPOSITE PARTY’S WITNESS:

                             NIL

 IV     OPPOSITE PARTY’S DOCUMENTS:

                             NIL

  V     COURT EXHIBIT:

          C1     - Commission Report

                                                                                                                Sd/-

PRESIDENT

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