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Online Communications Sales & Services, Malappuram District v/s P.K. Balan

    Appeal No. 54 of 2017

    Decided On, 03 September 2018

    At, Kerala State Consumer Disputes Redressal Commission Thiruvananthapuram

    By, MEMBER

    For the Appellant: Dhananjayan, Advocate. For the Respondent: ------------

Judgment Text

S.S. Satheesachandran : President

Opposite party in CC.267/15 on the file of the Consumer Disputes Redressal Forum, Malappuram, for short, the district forum, has filed this appeal challenging the Order dated 30.6.2016 directing him to refund the price of a mobile phone purchased by the complainant with compensation of Rs.6000/- and cost of Rs.4000/-.

2. Complainant, admittedly, purchased a mobile phone through the appellant for a price of Rs.9500/-. According to him within 8 months of purchase the phone became defective. He approached the service centre with the bill and warranty card for curing the defect, but, was turned back stating that warranty provided to the phone has applicability only in Gulf countries. Imputing deficiency of service he filed the complaint before the Forum claiming refund of the price of the mobile phone with compensation and cost. Opposite party resisted the claim filing a version contending that the phone has no warranty since it was received from Gulf country. Warranty for such phone is available only in a Gulf country and that the complainant has not made any complaint to them over the defects of the phone, was its further case repudiating the claim.

3. The evidence in the case consisted of the proof affidavit by complainant and Exts.A1 and A2 on his side. Opposite party filed proof affidavit but did not tender any documentary evidence.

4. Appreciating the materials produced the lower forum finding merit in the case pleased by the complainant allowed his complaint directing opposite party to refund the price of mobile phone, a sum of Rs.9650/-, with compensation of Rs.6000/- and cost of Rs.4000/-. Aggrieved by that Order opposite party has preferred this appeal.

5. Notice given, respondent/complainant has appeared in person. We heard the learned counsel for appellant and also complainant.

6. Learned counsel for the appellant urged for remitting the case for reconsideration submitting that the manufacturer of the phone has not been made a party in the complaint where manufacturing defect had been alleged to claim compensation. Appellant was only carrying on line business and as such it cannot be made culpable even assuming there was manufacturing defect over the phone purchased utilizing its service, is the further submission of the counsel. Learned counsel fairly submitted that the grounds canvassed for remission of the case had not been taken up in the version filed before the lower Forum.

7. We find that the grounds canvassed to impeach the Order passed by the Forum to seek for remission of the case are not sustainable. The only defense canvassed by the opposite party in its version was that the phone purchased by complainant utilizing its service was having warranty only in Gulf countries. That being the case the forum below rightly and correctly found in the light of Ext.A2 warranty produced by the complainant that opposite party is liable to refund the price of the defective phone with compensation and cost. No production of the mobile phone which was stated to be defective before the Forum was not of material consequence where challenge pertained only to absence of warranty over the product sold by the opposite party.

8. We find that there is no impropriety or illegality in the order passed by the lower Forum holding that there was deficiency of service on the part of the opposite party to direct it to pay compensation and also to refund the price of the mobile phone to the complainant. However, we take note that the phone became defective 8 months after the date of purchase. So much so the refund of entire price paid for the mobile phone was not allowable. Similarly, compensation and cost awarded are also found to be excessive and reasonable. In the given facts of the case we find the complainant is entitled to have only Rs.7000/- towards the price of the phone,

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Rs.2000/- as compensation and Rs.850/- as cost, thus a total sum of Rs.9850/-. 9. Order of the lower Forum is modified limiting the sum payable to the complainant as Rs.9850/-, which the complainant is allowed to realize from the sum deposited by the appellant for entertaining the appeal, filing an application before this Commission.Appeal is partly allowed as indicated above. Parties are directed to suffer their cost.