D.O.F:14/07/2016

                                                                                                  D.O.O:05/01/2022

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD

CC.No.196/2016

Dated this, the 05^th day of January 2022

PRESENT:

SRI.KRISHNAN.K                         :PRESIDENT

SRI.RADHAKRISHNAN NAIR.M : MEMBER

SMT.BEENA.K.G                            : MEMBER

Manikandan. A aged 27 years

S/o Krishnan Nair

Gokulam House, Niduvot

Kolathur Post                                                            : Complainant

Kasaragod Taluk – 671541

                                                            And

1. Vinod

    Proprietor – Mobile Shore

    Pulinthottil; Complex, Poinachi

    Thekkil Post, Kasaragod Taluk                          : Opposite Parties

2. Mahin Kolikkara

    Kolikkara Shopping Business Solution

    Fort Road, Kasaragod 671121

    (Adv: B. Ramakrishna Bhat)

ORDER

SMT.BEENA.K.G: MEMBER

     This complaint is filed under section 12 of the Consumer Protection Act 1986.

           This complaint was allowed exparte on 31^st October 2016 by the District Forum Kasaragod and the 2^nd Opposite Party preferred appeal before the Honourable State Commission Trivandrum.  The Honourable state commission set aside the exparte order passed by District Forum Kasaragod earlier and remanded back the file for fresh disposal after giving opportunity to the appellant to file version and adduce evidence.

     The case of the complainant Sri Manikandan A  is that he purchased a Canvas Nitroz E-311 Micro Max mobile phone from Opposite Party No: 1 on 26-05-2015  for an amount of Rs. 12,000/-. At the time of purchase Opposite Party No:1 assured one year warranty and informed that  he will avail service from  their service centre at Kasaragod.  The Opposite Party No:2 is the proprietor of service centre and dealer of Micro Max phone.  On 5^th march 2016 the mobile phone became disfunct and off, while using the same. The Complainant approached Opposite Party No:1 and gave the phone for repair.  The Opposite Party No. 1 entrusted the phone to Opposite Party No: 2 for service.  The Opposite Party No: 1 has returned the phone after repair on 09/03/2016.   Again on 24^th may 2016 the phone again became faulty and the complainant approached Opposite Party No: 1 for repair.  The Opposite Party No: 1 entrusted the phone to Opposite Party No:2  for service.  Opposite Party assured that the phone will be returned after repair within two days.  But the phone is not returned even after many weeks.  Thereafter the second Opposite Party informed the complaint that the phone had send to the company for replacing the screen of the phone.   Complainant was working as an ATM operator and he could not use the phone thereafter and that badly affected his profession and due to that he has suffered damages and mental agony for which he is seeking a sum of Rs. 12000/-with interest along with a compensation of Rs. 25000/- and Rs. 5000/- as cost. 

     The Opposite Party No: 1 and 2 served notice Opposite Party No: 1 present in person and stated that what is stated in the complaint is false and he is not the original dealer. The complainant is not seeking any relief against Opposite Party No: 1.   The learned counsel advocate Ramakrishma Bhat filed a detailed version for Opposite Party No:2.

            The Opposite Party No: 2 filed version stating that the complaint is false, frivolous vexatious and is not maintainable under law. The Opposite Party No: 1 admitted that complainant had purchased Micro max mobile phone from the shop of Opposite Party No:1 on 26/05/2015 for an amount of Rs. 12,000/- .  According to Opposite Party No: 1, the contention that he assured  one year warranty to the product  and service centre at Kasaragod are false.  According to Opposite Party No: 2 the mobile phone became disfunct and off while using the same and it became faulty etc are false and hence denied.  Opposite Party No: 2 again stated that  at the time of  entrusting the same for repair, the Opposite Party No: 2 assured the complainant that the phone will be returned within 2 days and on 28/05/2016 when the complainant approached Opposite Party No: 2 to take back the mobile phone  then opposite party  told the complainant  to come on 30^th May and on that day also the phone was not returned and he told that he required three days further time for repair and complainant approached opposite party many times for take back of the phone and all those occasions Opposite Party No:  2 evaded by telling  lame excuses and phone was not returned etc are false and hence denied.  According to Opposite Party No: 2 this complaint is filed only by imaginary and he is an unnecessary party to this proceedings.  Opposite Party No: 2 states that when the complainant approached him on 26/05/2015 with the phone for repairs he told that he is not repairing any Micro Max phone or any other phones in their shop, He was not ready to accept the phone. Due to the pressure from complainant he accepted the phone only to help the complainant by sending the phone to Micromax service centre at Kannur and further told him to contact the service centre for future communications. The complainant has to make the manufacturer of the phone as a party to this complaint, therefore this complaint is bad for non-joinder of necessary party. Therefore this complaint has to be dismissed with cost to this Opposite Party.

      The complainant filed proof affidavit in lieu of chief examination and the documents produced are marked as Ext A1 and Ext A2.The complainant is cross examined as Pw1. No evidence is adduced by Opposite Parties.

     The main questions raised for consideration are:

1. Whether there is deficiency in service on the part of Opposite Party No:2 as he failed  to return the mobile phone after curing the defects in time?
2. Whether the complainant entitled to for relief?
3. If so what is the relief?

For convenience Issue number one and two can be discussed together

    Here the specific case of the complainant is that his defective mobile was not repaired and returned to him by Opposite Parties within the warranty period.   In order to prove his case he has produced Ext A1 and A2.   Ext A1 is the invoice issued by Opposite Party No:2 is that given by Opposite Parties at the time of enlisting the phone for repair .  These two documentary evidence proves the case of the complainant. As per Ext A2 Complainant is not the custodian of the mobile phone.

     Sec 2(r) 1 (v) of the Consumer Protection Act 1986 defines unfair trade practice as here under:

r. “unfair trade practice means” a trade practice which for the purpose of promoting.

1. The practice of making any statement, whether orally or in writing or by visible representation.

2. Falsely represents that the goods are of a particular standard quality and quantity.

3. Falsely represents that the services are of a particular standard quality or grade.

     On the basis of the above discussion we find that there is unfair trade practice as contemplated under Section 2 (r) (I) (V) of consumer Protection Act 1986.  Which also amounts to deficiency in service.

     By producing Ext A2 which is a chit and that document is given by Opposite Party to the complainants  Complainant established that there is unfair trade practice on the part of Opposite Party.

     Opposite Party No:2 is liable to compensate the complaint for unfair deficiency is service produced against them.   As a service centre 2^nd Opposite Party failed to cure the defects of the mobile phone of the complainant and there by the complainant suffered huge loss and mental agony.   

     On going through the entire facts on record we are of the view that 2^nd Opposite Party failed to provide proper service to the complainant.  The complainant represented before the forum that he is not seeking any reliefs against 1^st Opposite Party.  In the absence of the contra evidence the first issues found against 2^nd Opposite Party and due to deficiency in service on the part of Opposite Party No:2 complainant suffered mental agony and loss.  Complainant is entitled for relief.   The learned counsel appeared for Opposite Party No: 2 filed argument notes including many citations but here the case of the complainant is that 2^nd Opposite Party failed to provide proper service to the complainant and not regarding manufactures defect.  In the absence of rebuttal evidence we are of the view that 2^nd Opposite Party is liable to pay Rs. 12,000/-  (the price of the mobile phone) with a Rs. 5000/- as compensation and Rs 3000/- as litigation costs.

     In the result complaint is allowed directing Opposite Party No:2  to pay Rs. 12,000/- (the price of the mobile phone) to the complainant with Rs. 5000/- (Rupees Five thousand only) as compensation and Rs 3000/- (Rupees Three thousand only) as litigation cost.

     The time for compliance is thirty days from the receipt of copy of the judgement.

    Sd/-                                                   Sd/-                                                  Sd/-

MEMBER                                          MEMBER                                   PRESIDENT

Exhibits

A1- Receipt issued by OP No.2 Dt: 25/05/2016

A2- Receipt issued by OP No: 1 Dt: 26/05/2016

Witness Examined

Pw1- Manikandan.K

      Sd/-                                                   Sd/-                                                     Sd/-

MEMBER                                          MEMBER                                          PRESIDENT

Forwarded by Order

                                                                                    Senior Superintendent

Ps/