SMT. RAVI SUSHA: PRESIDENT

Complainant filed this complaint U/s 35 of Consumer Protection Act 2019 seeking to get an order directing Opposite parties to refund the value of mobile phone Rs.10,100/- together with Rs.1,00,000/- towards compensation to the complainant for the mental agony and financial loss happened to him due to the unfair trade practice and deficiency in service on the part of Opposite parties.

Case of complainant is that he had purchased mobile phone worth Rs.10,100/- from OP No.1 shop on 10/09/2019.  2^nd OP is the authorized service centre. 3^rd OP is the manufacturer of the mobile phone.  In addition to one year warranty OPs had given display replacement as ‘onam offer’.  Complainant alleged that just about 5 months after its purchase, the front camera became damaged as not working.  Immediately he reached the OP NO.1’s shop.  Then they directed the complainant to approach OP NO.2 the authorized service centre for repair work.  So he entrusted the mobile to OP No.2.  After checking he phone staff of OP No.2 assured him to return within two days after its repair work.  But after 4 days when the complainant approached OP  No.2, they demanded Rs.1,500/- as repair charge after informing that there is no warranty benefit and returned the mobile phone without repairing it.  Complainant submitted that though the approached OP No.1 no positive result got.  It is submitted that since the defect happened to the mobile phone is within the warranty period, he is entitled to get warranty benefit and hence OP could not levy charge.  Complainant alleged that the action of OP amounts to deficiency in service and unfair trade practice.  Hence filed this complaint for getting the relief as claimed in the complaint.

After receiving notice OP No.1 appeared in person and filed version stating that they sold this device and have helped Mr. Muasammil V in every aspect they could.  When Mr. Musammil V reported an issue with his device, they did the right thing by guiding him to the authorized service center OP No.2 (Appasons Mobile gallery) for help.  As they are the only one who can open/repair this mobile device under the warranty period.  They are the one who need to check the warranty condition of the device and give proper support to Musammil V in the 1^st one year of purchase of his device.  Further stated that he came back and explained that the service center is not honouring the warranty and they are charging for getting the phone fixed.  Thus he called the manager and checked why the warranty is denied for this handset.  It is submitted that as a sales point they have done their best to assist Mr. Musammil V, they cannot interfere in the warranty policy set by manufacturer and thus they were helpless.  Hence prayed for the dismissal of the complaint against them.

2^nd OP though appeared in person, did not file version and hence they were set       ex-parte.

            OP No.3 manufacturer of the mobile phone, after getting notice, entered appearance through counsel and filed their written version.  It is contended by OP No.3 that the third OP is unaware of any transactions which took place between the 1^st OP and the complainant.  The 3^rd OP is unaware of any of the fact stated in the complaint including his conversation with the 1^st and 2^nd OP.  It can only be answered by the 1^st and 2^nd OP to complaint.  The 3^rd OP only offers product warranty and any damage caused due to any external factors will not be covered under the warranty provided by the 3^rd OP.  There is no negligence on the part of the 3^rd OP as alleged by the complainant. The complaint to the mobile mentioned by the complainant must have caused due to the negligence of the complainant in using the same.  The complainant is not eligible for any compensation as alleged.  Hence prayed for the dismissal of the complaint.

            At the evidence stage complainant has filed his chief-affidavit and documents and also submitted the subject mobile phone.  He has been examined as Pw1 and the documents were marked as Exts.A1 to A6 and the subject mobile phone is marked as       MO1.  He has been subjected to cross-examination by OPs.

            Through Ext.A1 cash bill complainant proved that the mobile in dispute was purchased by him from the OP No.1 on 10/09/2019 for a consideration of Rs.10,100/-. Ext.A2 is the service order reveals that the said mobile entrusted to service centre OP No.2 on 13/02/2020 with a complaint ‘front camera not working’.  Ext.A3 is also service order dated 17/02/2020 given by OP No.2.  In Ext.A3 fault described as front camera not working.  It is also noted that Hand set delivered.  Ext.A4 is service record in which service charge stated as Rs.712.81.  Ext.A5 is the Barcode sticks with IMEI number.  Ext.A6 is the warranty book.  Through Ext.A1 to A6 complainant has proved his case about purchase of mobile phone, its value, product has 1 year warranty and also proved that “the product became defective within one year and also the defect has not been rectified by the OPs with free of cost.

            Here OP No.3 the manufacture of the product contended that they only offers product warranty and any damage caused due to any external factors will not be covered under the warranty provided by the 3^rd OP.  It is to be noted that OP No.1 the shopy from where  the complainant has bought the mobile set.  In their version nowhere stated that the defect ‘front camera not working’ was happened  due to any external factors or misuse from the side of complainant.  Moreover OPNo.2  the service center also has not filed  version stating that the effect was happened due to external factors or misuse from the side of complainant.  Without filing version, questions put forwards during the cross-examination time by OP No.2 could not be accepted. From the submissions made by OP No.1 it is clear that the defect of mobile happed within the warranty period and he enquired to OP NO.2 service centre about the denial of warranty facility to the complainant.  Here, in Ext.A4 it is mentioned in the Fault description form the customer- Front camera not working, main camera lens cracked, TP frame has slight damage, checked with technical team and denied warranty.  Further in Inspection  remarks :- “warranty void after consulting technical term, we did not have front camera in stock to confirm the issue”.  Here it is to be noted in Ext.A4 also OP No.2 has not stated the reason for denial of warranty was due to crack happened  by misuse from the side of complainant.  Further stated that OP No.2 did not have front camera in stock to confirm the issue.  During cross-examination of Pw1 by OP No.3, complainant categorically denied the suggestion of OP No3 about the damage was happened due to careless use of complainant.  Then OPs should have proved their contention through expert opinion.

            Taking over all view of the matter, we are of the opinion that in the above mentioned circumstances, where the mobile phone worth Rs.10,100/- have become defective within 6 months after purchase, there is mental agony and financial loss happened to the consumer.

            As the defect happened within the warranty period, manufacturer is also a necessary party and there is liability on the part of OP No.3 also. OP No.1 cannot wash off his hands after making a sale of a defective product.  Hence we are of the view that there is deficiency in service on the part of all OPs.

            In the result complaint is allowed in part.  Opposite parties 1 to 3 are directed to refund of the amount of mobile phone ie Rs.10,100/- to the complainant.   Opposite parties are also directed to pay Rs.5,000/- as compensation for the mental agony of the complainant happened due to the deficiency in service on the part of Opposite parties.  Opposite parties1 to 3 are jointly and severally liable to comply the order within one month from the date of receipt of this order, failing which the awarded amount Rs.15,100/- carries interest @ 9% per annum from the date of order till realization.  Complainant is at liberty to execute the order as per provision of Consumer Protection Act 2019.

Exts

A1- Cash bill

A2- Service order dated 13/02/2020

A3- Service order dated 17/02/2020

A4- Service record copy dated 17/02/2020

A5- Barcode Sticker, IMEI Number

A6- Warranty folding book

MO1-Mobile phone (returned to complainant)

Pw1- Complainant

      Sd/                                                                                    Sd/                                                     Sd/

PRESIDENT                                                                   MEMBER                                             MEMBER

Ravi Susha                                                               Molykutty Mathew                                     Sajeesh K.P

(mnp)

/Forward by order/

Assistant Registrar