This case is coming for final hearing on 06-08-2014 in the presence of Sri Kurma Appala Raju, Advocate for Complainant and Opposite Parties 1 & 2 set exparte and 3^rd Opposite Party in person filed Counter evidence Affidavit and Written arguments by post and having stood over till this date, the Forum delivered the following.                                                                                                                                                                                                                                                                                                                                                                                           

: O R D E R :

(As per Sri V.V.L.Narasimha Rao, Honourable Member on behalf of the Bench)

The Complainant filed the present complaint against the Opposite Parties 1 to 3 on 20.12.2013 under Sec.12 of Consumer Protection Act and requested the Forum to direct the Opposite Parties to provide a new H.C.L. Tablet in the place of old defective Tab, which is lying with 2^nd Opposite Party or return the amount of Rs.8,650/- i.e. price of

1. Tablet with interest at 18% p.a. also he prays the Forum to award Rs.30,000/- towards mental agony caused by the Opposite Parties and costs for legal expenses.

2. The brief facts are as follows: The Complainant submits that the 1^st Opposite Party is running a Big Showroom under name and style of Universal Tele Communications India Pvt. Ltd. at Visakhapatnam District and gave wide publicity. Basing upon the publicity of the Opposite Parties the Complainant purchased the HCL Me Tablet vide Item No.911251100029062 from the Opposite Party on 12.01.2013 for Rs.8,650/-. The said Tablet is having additional features of USB connection, SD Card slot, SIM Card slot, Front Camera, 3G Dongle support etc. along with the Invoice the warrant card is given to the Complainant. From the date of purchasing the Tablet, the Tablet is not working properly and when the Complainant approached the Opposite Party for rectification of problem, the Opposite Party rectified the problems for the first time and gave the Tablet to the Complainant in the month of April, 2013. Thereupon, as there was again some problem arised and 1^st Opposite party advised the Complainant to approach the 2^nd Opposite Party.  Also stated, if the problem is not rectified it may be exchanged with the new one. Basing upon the instructions of the 1^st Opposite party, Complainant approached 2^nd Opposite Party and the set was rectified and delivered to the Complainant after one week. For one month, the set worked property and again in the month of May, 2013 there was a repair of USB slot in the HCL Tab. Though the 2^nd Opposite Party use to rectify the problem, he has not given any certificate to state that there was a manufacturing defect.  On 19.08.2013 again Complainant intimated about SLIM SLOT NOT WORKING problem of 2^nd opposite party and the set was delivered to him after one month. Even after the repairs done to the HCL tab for several times as there was a problem of SET IS NOT WORKING, the Technician of 2^nd Opposite Party received the set and gave acknowledgement and stated that “the set cannot be rectified as there is a manufacturing defect in the set, for that the 1^st Opposite Party is not ready for exchange of new Tab, then the 2^nd Opposite Party finally took the Tab for getting the repairs done and as it was still with the 1^st Opposite Party. Hence the present Complaint is filed seeking reliefs as sought for.

3. The notices were sent to Opposite Parties 1 to 3. On 30.01.2014 as there is no representation for the 1^st Opposite Party & 2^nd Opposite party they were set exparte. On behalf of 3^rd Opposite Party, the 3^rd Opposite Party filed Counter, Evidence Affidavit and Written arguments post from Noida on 21.01.2014. In the Counter the 3^rd Opposite Party stated that the Complainant has made false allegations against the Opposite Party, the present case is not maintainable as per the law, as there is no manufacturing defect in the Tab and also the Complainant has not furnished any evidence to show that the Tab is not working property also the Complainant has not furnished any documentto prove that the 3^rd Opposite Party is the Service Provider. The Complainant has filed the present case for wrongful gains, 3^rd Opposite Party has not made any promise either verbally or orally that in place of any defect or any repairs, the Tab will be replaced in a week at any point of time.Hence, the Complaint is liable to be dismissed and he is not entitled for any relief as sought for.

4. On perusal of the pleadings of the both sides, the Forum has made the following points for consideration

   1. Whether there is any deficiency of service on part of the Opposite parties and

   2. to what relief.

5. The Complainant filed his Evidence Affidavit and on his behalf Ex.A1 to A4 were marked. Though the Opposite Party sent the Evidence Affidavit by post did not choose to file any documents in support of their version. The complainant field Evidence Affidavit reiterating the averments mentioned in the Complaint and the Evidence Affidavit. Heard the counsel for the Complainant.

6. Point Nos.1 & 2. The present Complaint is filed by the Complainant against the Opposite Parties 1 to 3 for exchange of new HCL Tablet in place of old defective one or else for refund of Rs.8,650/- i.e. price of HCL Tablet along with 18 percent p.a. and Compensation of Rs.30,000/- for causing mental agony to him as there are so many repairs for the HCL Tablet since from the date of purchase i.e. from 12.01.2013. The Opposite Parties in their Counter stated that the Complaint is not maintainable as per the law and as there is no specific documents that there was a manufacturing defect in the Tab and also he is not a Service Provider. There is no specific confirmation from 3^rd Opposite party either orally or verbally that the HCL Tab will be replaced with new one. Hence, Opposite Party prays that the Complaint is not maintainable and has to be dismissed.
7. Ex.A1 is the Invoice dt.12.01.2013 along with Cash Receipt for Rs.8,650/- in which it was mentioned that the Complainant has purchased HCL Tab ME-V vide No.911251100029062. The said Tab is containing the provisions of (1) Mobile Theft Insurance (2) IMIE No.355177051434998 (3) Scandisc 8 GB Card. In the Ex.A1 under column Note in blue colour letters it was stated as for any suggestion or Complaint  kindly email to md at universal.in. Ex.A1 Invoice was signed by Authorised Signatory of Universal Tele Communications India Pvt. Ltd., wherein Complainant signatures is also there.
8. Ex.A2  is the brochure for using the HCL Tab and it was mentioned about 12 months warranty terms and conditions in Pg.No.1. So warranty period for HCL Tablet will be from 12.01.2013 to 11.01.2014.
9. Ex.A3 dt. 19.08.2013 is the Customer Service Report/Job Sheet given by the 2^nd Opposite Party stating that SIM IS NOT WORKING, Ex.A4 is the Customer Service Report in which date is not mentioned and it is stated that SIM SLOT NOT WORKING and in the column of ACTION TAKEN it is mentioned as only Tab taken for repair. In Ex.A3 & Ex.A4, the signatures of the Complainant and the Service Engineer of 2^nd Opposite Party Sri G.Manikanta are there.
10. Except the Ex.A1 to A4 documents, though the Complainant has stated that the Tab was repaired by the Opposite Parties 1 & 2 prior to the date 19.08.2013 i.e. from 12.01.2013 to 19.08.2013 he has not furnished any documents to that extent. So viewing Ex.A1, A3 & A4 we conclude that after purchase of the HCL Tab set gave service to the Complainant for 291 days i.e. nearly about 7 months.
11. As seen from the Ex.A1, A2 it seems the 1^st Opposite Party seller has sold the HCL tab Me-V to the Complainant which was manufactured by the 3^rd Opposite Party and for the repairs, the 2^nd Opposite Party i.e., the service centre of 3^rd opposite party has undertaken for the repairs. So, we are of opinion that the Complaint is maintainable before this Forum as 3^rd Opposite Party along with Opposite Parties 1 & 2 are Service Providers.

12. With regarding to the issue of manufacturing defect though Opposite Party alleged that there is no manufacturing defect the documents Exs.A3 & A4 reveals that there is some repair in the Tab set and also viewing the earlier averments of the Complainant prior to the Ex.A3 and A4. It seems the Tab set is giving continuous problems from date of purchase. Hence, we are of considered opinion that there is some defect in the Tab, though the Complainant has not furnished any document i.e. Expert Report to that extent.

13. As per I (2014) CPJ 51 (Goa) between Accel Frontline Ltd Vs Anant Govind Kandeparkar while deciding the issue related to the defective Mobile set which is not having the certificate or expert report pertaining to the Mobile defects and having job sheets of the Service Centers, the Hon’ble Goa State Commission stated that 2^nd Opposite Party states, Complainant with a view to find out whether there was any manufacturing defect has to produce Mobile before the Forum for an Expert Opinion under Sec.13(1)C of C.P.Act. The 2^nd Opposite Party use to get the repairs done to the Mobile Phone whenever the Complainant brought the set before the 2^nd Opposite Party. The Job card submitted by the Complainant will prove that whenever the phone was given for servicing for repairs and the phone was handed over to the Complainant in proper working condition. In Para 13 of the Judgement it was held that as the responsible repairer duly authorized by the manufacturer it was the duty of the 2^nd Opposite Party who have repaired the Mobile and called upon the Complainant to collect the same and in the case they are entitled for repair charges. We have hold that the Complainant was entitled for free repairs. In this case the Mobile set purchased by the Complainant had any manufacturing or inherent defect but it would not work well for more than 7 months and again whenever the defective parts were replaced. Since it is more than 3 years the set mobile was lying with 2^nd Opposite Party and does not know about its condition. At this stage there is no point in directing it repairs and to return to the Complainant and also as the Complainant has used the Mobile for 7 months and so there was no question of full refund or replacement. Hence we therefore allow the Appeal partly and modify the Order of the Forum and directed the 2^nd Opposite Party to refund to the Complainant a sum of Rs.9,400/- (2/3^rd of the price paid by the Complainant) as he has utilized the cell phone for 7 months. The said amount is to be paid within 30 days by 2^nd Opposite Party or else it will carry interest at 9% till realization and the cost and compensation awarded by the District Forum shall remain unchanged.

14. The facts relating to the case law mentioned in para-13 supra and the present complaint are similar, but the issue is related to the Mobile set. Viewing Ex.A1 & A3 it seems after 219 days from 19.08.2013 the Tablet set is giving troubles.The Complainant filed the complaint on 20.12.2013. As per Ex.A4 it seems the Tab is under custody of the 2^nd Opposite Party till date.So, as on date we cannot imagine that the HCL Tab set is repaired or in what condition it is. Hence, viewing the above case law I(2014) CPJ 51 (Goa) along with the Exs.A1 to A4 though the Complainant has requested the Forum to direct Opposite Parties for the new HCL Tab or else for refund of amount paid for the tab set, the only equitable remedy is available to the Complainant is refund of amount Rs.5,766/- (i.e. 2/3^rd price of HCL Tab set as per Ex.A1) along with interest at 9 percent p.a. from 12.01.2013 i.e. date of Ex.A1 till realization. Viewing the documents and the averments of the 3^rd Opposite Party we conclude that the Complainant is entitled for compensation of Rs.4,000/- to be paid by the Opposite Parties 1 to 3. As the Compensation is granted for the harassment done by the Opposite parties 1 to 3, so, the Complainant is not entitled for costs. Accordingly points 1 and 2 answered.

15. In the result the Complaint is allowed in part, directing the Opposite parties 1 to 3 are jointly and severally liable to refund an amount of Rs.5,766/- to the Complainant along with interest at 9 percent p.a.from 12.01.2013 till realization. The Opposite Parties 1 to 3 are jointly and severally liable to pay Rs.4,000/- as compensation to the Complainant. No order to costs. Time for compliance is 30 days from the date of receipt of this Order.

    Dictated to the Shorthand Writer, transcribed by him, corrected and pronounced by us in the open Forum on this the 25^th day of August, 2014.

     

           Sd/-                                                                    Sd/-

    President (FAC)                                                         Member           

                                                                            District Consumer Forum-I

                                                                                Visakhapatnam

    CC 297/2013

     

    APPENDIX OF EVIDENCE

     

    Exhibits Marked for the Complainant:

    Ex.A1	12.01.2013	Receipt issued by the 1st Opposite Party	Original
    Ex.A2	12.01.2013	Warranty Card
    Ex.A3	19.08.2013	Acknowledgement/Job Card vide No.1544 from 2nd OP
    Ex.A4	14.10.2013	Acknowledgement/Job Card vide No.2295 from 2nd OP

     

    Exhibits Marked for the Opposite Parties:    - NIL -

     

     

            Sd/-                                                                   Sd/-

    President (FAC)                                                         Member           

                                                                            District Consumer Forum-I

                                                                                Visakhapatnam