O R D E R

Sri. P. Satheesh Chandran Nair (President):

                   The complainant filed this complaint before this Forum u/s.12 of the C.P. Act for getting a relief against the opposite parties.

                   2. The case of the complainants is stated as follows:  On 07.04.2015 the complainant purchased a mobile phone (Model No.SMN7500d2KAINC, IMEI No.35165/06/960364/C) from 1^st opposite party for an amount of Rs.23,900/-.  The 2^nd opposite party is the manufacturer of the mobile phone.  The 3^rd opposite party is the authorised service centre of 1^st opposite party.  After the purchase of the said mobile, the mobile phone has shown some defect from 6 months onwards.  The complainant informed the defect of the mobile to the 1^st opposite party and the 1^st opposite party directed the complainant to entrust the same with 3^rd opposite party for the rectification of the mistake.  The 3^rd opposite party found a complaint on the mobile phone named “Octa LCD Blue Colour”.  It is also contended that the 3^rd opposite party stated that the defect shown above was a manufacturing defect and therefore it could not be fully repaired without payment even within the warranty period.  The complainant further contended that the 1^st opposite party is duty bound to replace the mobile or else the act of the opposite parties are comes under clear deficiency in service and unfair trade practice on their side.  Hence the complaint, for the refund of purchase amount of the mobile Rs.23,900/-, damage, cost etc. etc.

                   3. The complainant filed this complaint before this Forum, this Forum peruse the complaint and records before us and issued notice to opposite parties for their appearance.  Though all the opposite parties are received notice, except opposite party 1, opposite party 2 and 3 entered appearance and filed a joined version.  On 12.05.2016 opposite party 1 was called absent and declared exparte against him.

                   4. The version of opposite party 2 and 3 are briefly stated as follows:  According to the opposite parties 1 and 2, the complainant filed this case against the law and fact by stating baseless fact in the complaint.  There is no cause of action against the opposite parties as per this complaint.  It is also alleged that this Forum has no jurisdiction to entertain this complaint.  According to this opposite parties, they are providing high level service to their customers.  It is further contended that the complainant violated the terms and conditions of this transaction since he entrusted the mobile phone to a stranger for rectification. 

                   5. Apart from the above objection, the opposite parties opposed the allegation of the complainant in Para wise also.  It is contended that on 07.10.2015 the complainant produced the handset before the 3^rd opposite party and on inspection it was found that the problem of the display of the phone is known as “OCTA LED” was not correct or genuine.  It is further contended that the handset’s ‘LED’ is seen tampered with and replace with a non genuine display without the consent or knowledge of this opposite parties.  According to them, if the warranty condition was broken by the complainant there is no need of excluding the repair cost to the complainant.  It is further contended that the defect with the phone is not a manufacturing defect and no deficiency in service happened on the side of this opposite parties.  According to them, the complainant is not entitled to get a refund or compensation, cost from these opposite parties as alleged.  Therefore, these opposite parties prayed to dismiss the complaint with cost to them.

          6. On the basis of the complaint, versions and records before us we framed the following issues:

1. Whether the complaint is maintainable before the Forum?
2.  Whether the opposite parties are committed any   deficiency in service as alleged by the complainant?
3.  Regarding relief and costs?

                   7. In order to prove the case of the complainant, the complainant he who filed a proof affidavit in lieu of chief examination and examined him as PW1.  Through him Ext.A1 to A3 are also marked.  Ext.A1 is the sale invoice dated 07.04.2015 for Rs.23,900/-.  Ext.A2 is the warranty card.  Ext.A3 is the acknowledgment of service request dated 07.10.2015.  On the other side opposite party 1 is examined as DW1 and marked Ext.B1.  Ext.B1 is the Tax Invoice dated 20.03.2015.  Though this Forum granted sufficient time to opposite parties 2 and 3 for adducing evidence on their side, they did not adduce any evidence in their favour.  Though opposite party 1 was declared exparte as stated above he was present before the Forum and filed a proof affidavit in lieu of his chief examination.  It is true that he is declared as exparte on 12.05.2016 by this Forum but his evidence is treated as opposite party’s evidence in this case as a witness.  At the time of closing the evidence opposite party 1 again filed a petition to set aside the exparte order of this Forum dated 12.05.2016.  Since this Forum has no jurisdiction to pass an order to set aside exparte order we decided to dismiss I.A.No.39/17.  Hence, I.A.No.39/17 is dismissed.  After closing the whole evidence of this case we granted opportunity to both sides for hearing.  The complainant’s counsel appeared before this Forum and argued their case.  DW2 and DW3 has either appeared before the Forum or filed any argument note in their favour. 

                   8. Point No.1:- opposite parties 2 and 3 through their version it is contended that the case of the complainant is not maintainable either in law or on facts.  When we peruse the evidence of this case it is evident to see that the complainant PW1 he who purchased a mobile phone from 1^st opposite party by paying an amount of Rs.23,900/- and also admitted that the 2^nd opposite party is the manufacturer of the mobile phone and the 3^rd opposite party is the 2^nd opposite party’s authorised service centre, which is functioning at Thiruvalla, which is within the jurisdiction of this Forum.  We can easily arrived a conclusion that the complainant is a consumer and opposite parties are service providers of this complainant.  Hence it is found that the complaint is maintainable and this Forum has every right to try this case and this Forum is enjoying jurisdiction for it.  Hence Point No.1 found accordingly.

          9. Point Nos.2 & 3:- For the sake of convenience, we would like to consider Point No.2 and 3 together.  As discussed earlier, the complainant PW1 in this case deposed before this Forum as PW1 and convinced this Forum that he had purchased a mobile phone (Model No.SMN7500d2KAINC, IMEI No.35165/06/960364/C) from 1^st opposite party by paying an amount of Rs.23,900/-.  PW1 produced and marked Ext.A1 sale invoice to prove this fact.  As per Ext.A1 we can see that he paid an amount of Rs.23,900/- as a price of the mobile phone.  Ext.A2 is the warranty card issued by opposite party 1 in favour of PW1.  As per Ext.A3 it is proved that, “the customer handset was black colour we found OCTA LCD Blue Colour”.  When we rely Ext.A3, it is cogent evidence to see that the complainant’s mobile phone is suffering a defect known as “OCTA LCD Blue Colour”.  When we peruse Ext.A2 warranty card we can inferred that the complainant’s mobile phone suffered defect within the warranty period.  Though opposite parties 2 and 3 are cross-examined PW1 nothing brought out to disbelieve the contention or credibility of the complainant PW1 in this case.  Though opposite party 1 was exparte in this case as a witness of opposite party 1 he also cross-examined PW1 and in his cross PW1 answered, “O.P 2-ൻറെ productsന് warranty period-ൽ ഉള്ള servicing ൻറെ ബാദ്ധ്യത O.P 3 ക്ക് ആണ്. ആയതുകൊണ്ട് O.P 1 þൻറെ ഭാഗത്തുനിന്ന് യാതൊരു സേവനവീഴ്ചയും ഇല്ല എന്നു പറയുന്നു”?. (A) “ശരിയാണ്”.  In the light of the facts and circumstances of this case and as per the answer given by PW1 with regard to the liability of opposite party 1 towards the complainant, the complainant has given a clear answer in favour of opposite party 1.  It is true that opposite party 1 in this case has only received an amount from the complainant for the sale of this mobile.  Except this transaction the complainant failed to adduce any positive evidence against opposite party 1.  The opposite party 1 also produced and marked Ext.B1 to prove that he purchased the said mobile phone from opposite party 2.  Therefore, we decided to exonerate opposite party 1 from all charges.  It is admitted that opposite party 2 is the manufacturer of this mobile phone and opposite party 3 is the authorised service centre of opposite party 2.  It is also to be noted that the Ext.A2 warranty card, which was issued by opposite party 1 for and on behalf of opposite party 2 the manufacturer.  As per Ext.A2, it is so clear that the defect of the mobile phone happened within the time limit of the warranty for which the opposite party 2 and his authorised service person opposite party 3 are also liable to rectify the defect of the mobile phone with free of cost since the complainant enjoying a warranty claim against opposite party 2 and 3.  Though opposite party 2 and 3 cross-examined PW1 in this aspect they did not put any specific question with regard to the defect noted in Ext.A3 with regard to the defect of the phone.  In Ext.A3, it is clearly stated that the “OCTA LCD Blue Colour” is seen in the mobile phone.  In the absence of any suggestion from opposite party 2 and 3 we can safely come to a conclusion to the effect that the mobile phone of the complainant has suffering a major defect and the mobile phone is not functioning properly.  Therefore we found that the complainant has succeeds to prove deficiency in service against opposite party 2 and 3 and we also found that the complainant’s mobile phone is inoperative.  It is also come out in evidence that opposite party 3 is the authorised service centre opposite party 2.  So opposite party 2 and opposite party 3 are jointly and severally liable to the complainant.  Hence, Point No.2 and 3 are also found in favour of the complainant.

            10. In the result, we pass the following orders:

1. The opposite parties 2 and 3 are hereby directed to repair the mobile phone within 1 month of the receipt of this order and also directed to produce a fitness certificate from a BSNL Engineer (not below the Rank of a Sub Divisional Engineer), B.S.S, Pathanamthitta before the Forum if fails opposite parties 2 and 3 are liable to pay the cost of the mobile phone Rs.23,900/- (Rupees Twenty Three Thousand Nine hundred only) to the complainant with 10% interest from the date of filing of this petition onwards, i.e. 01.04.2016.

2. The opposite parties 2 and 3 are also directed to pay a compensation of Rs.10,000/- (Rupees Ten Thousand only) and a cost of Rs.2,500/- (Rupees Two Thousand Five hundred only) to the complainant with 10% interest from the date of order onwards.

3. In order to comply relief order No.1 the complainant is also directed to handover the mobile phone to opposite party 3 within 15 days of receipt of this order and also obtain a receipt of the entrustment. 

            Dictated to the Confidential Assistant, transcribed and typed by her, corrected by me and pronounced in the Open Forum on this the 16^th day of June, 2017.

                                                                                            (Sd/-)

                                                                             P. Satheesh Chandran Nair,                                                                                                                                                                                                                                              

                                                                                          (President)

Smt. Sheela Jacob (Member)               :   (Sd/-)

Appendix

Witness examined on the side of the complainant:

PW1  :  Pramod

Exhibits marked on the side of the complainant:

A1 :  Sale invoice dated 07.04.2015 for Rs.23,900/-. 

A2 :  Warranty card. 

A3 :  Acknowledgment of service request dated 07.10.2015. 

Witness examined on the side of the opposite parties:

DW1  :  Praveenkumar. S

Exhibits marked on the side of the opposite parties:

B1 : Tax Invoice dated 20.03.2015.                                                                                   

                                                                                          (By Order)

Copy to:- (1) Pramod. D.P, S/o.  Prasad K.,

 Mini Bhavan, Paipadu.

2. TTL Trading Pvt. Ltd., 27/306-1 Mariyil Building,

           Opp. S.N. Mandiram, Muthoor. P.O., Thiruvalla,

           Rep. by its Manager, Praveen Kumar. S

3. Samsung Electronics Pvt. Ltd.,A-25 Ground Floor,                            

                     Front Tower, Mohan Co-operative Industrial Estate,

           New Delhi – 110 044, India.

4. Samsung Authorised Service Centre,

Jumbo Electronics, SCS Junction,

Marthoma Building, Thiruvalla.

(5) The Stock File.