State Consumer Disputes Redressal Commission
K.R.Nehru, B.A.,B.L.,Tirunelveli ... vs Harun Nathirsha Babu, Proprietor, A To Z ... on 22 January, 2014
IN THE TAMILNADU STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MADURAI BENCH.
Present: Thiru.A.K. ANNAMALAI, M.A.M.L.,M.Phil., Presiding Judicial Member
Thiru.S. SAMBANDAM, B.Sc, Member
F.A.No.343/2012
(Against the order in C.C.No. 58/2011, dated 05.09.2011 on the file of DCDRF, Tirunelveli.)
WEDNESDAY, 22nd DAY OF JANURARY 2014.
K.R.Nehru, B.A.,B.L.,
Advocate,
11th Ward Counselor,
South Car Street,
Sankaran Kovil,
Tirunelveli District. Appellant/Complainant
Vs
Harun Nathirsha Babu,
Proprietor,
A to Z Mobiles,
Opp.To Aravind Eye Hospital,
S.N. High Road,
Tirunelveli. Respondent/Opposite Party
Counsel for Appellant/Complainant : In Person
Counsel for Respondent/Opposite Party : Mr. P.J.Ramesh Raja, Advocate.
This appeal coming before us for final hearing on 18.12.2013 and on
hearing the arguments of both sides and upon perusing the material records this
Commission made the following:
ORDER
THIRU. A.K.ANNAMALAI, PRESIDING JUDICIAL MEMBER.
1. The unsuccessful complainant is the appellant.
2
2. The complainant had entrusted a mobile cell phone 5130 Express Music (I.M.E.I. 828768/C.) model for repair to the opposite party on 27.11.2010 for which the opposite party issued a job card and assured to return the mobile phone after one week after rectifying the defects and thereafter when the complainant demanded for the return of the mobile phone after one week the opposite party had not returned the mobile phone till date and when demanded on 02.02.2011, the opposite party alleged that the complainant already received back the same and scolded the complainant and thereafter the complainant on 03.02.2011 sent a notice for which a reply with false details was sent by the opposite party and thereby the complainant filed a consumer complaint claiming return of cell phone already handed over for repair and to pay Rs.30,000/- as compensation for mental agony and Rs.35,000/- as costs for the same and also Rs.5000/- towards costs of the complaint.
3. The opposite party denied the allegations of the complainant by contending that on 27.11.2010 the complainant entrusted the cell phone for repairing and a big size (A4 size) job card was given for the same and since the spare parts yet to be received from outside, 10 days time was needed to repair the same which was informed to the complainant but within 2 days from handing over of the cell phone the complainant came and got back the mobile phone by stating that spare parts are available in their place itself and thereby signed in the job card itself and went away. They have not issued any such job card as filed by the complainant and other claims are denied and the complainant on 3 21.02.2011 at about 7.00 p.m. through the mobile phone No.8220162928 contacted the opposite party and demanded Rs.30,000/- for him and thereby the complaint is false and to be dismissed.
4. On the basis of both sides materials and after an enquiry the District Forum dismissed the complaint by accepting the contentions of the opposite party by stating that the job card relied upon by the complainant is not issued by the opposite party.
5. Aggrieved by the impugned order, the complainant has come forward with this appeal by contending that the District Forum erroneously dismissed the complaint by rejecting the job card and Ex A2 job card issued by the opposite party to be accepted. Regarding the C.D. conversation under Ex B6 not properly proved through the expert opinion which has to be rejected by the District Forum, hence the complaint to be allowed. The respondent/opposite party contended that the complainant has received back the mobile phone within 2 days from handing over it for repair and acknowledged the same in the job card and the claim was erroneously made since the complainant demanded money from the opposite party or to issue new cell phone which was proved through the C.D. conversation between the parties and the order passed by the District Forum needs no interference.
6. We have heard both sides' arguments and perused the materials in this regard. The opposite party admitted in his written version that on 27.11.2010, the complainant entrusted his mobile phone model 5130 Express Music 4 (I.M.E.I.828768/C.) for which they have issued a job card. The model of the cell phone and I.M.E.I. 828768/C are all not denied. The complainant stated that Ex A2 job card, post card size said to have been issued for the entrustment of the cell phone for repair in which the name has been mentioned as Nehru, Model 5130 I.M.E.I 828768/C and complaint - Full dead, Amount -left blank after striking figure 30 below which no battery and back door was mentioned and also it is scribbled with "showroom manager" with 2 phone numbers as "97881 23200 and 4020088". This job card was denied by the opposite party stating that they have used to issue only A4 size big size job card and filed a specimen of the same as Ex B1 and also filed the carbon copy said to have been issued to the complainant as Ex B5. On perusal of Ex B5, it is found and mentioned as "A to Z mobile service care, date 22.01.2011" in the name of Nerhu, Sankarankovil and the cell details are mentioned as Model No. NOKIA 5130, Colour-Red, IMEI No.35 308 and service details mentioned as full dead and charge Rs.200/-. The opposite party alleged that the complainant has singed the job card for getting back the cell under Ex B5. It is seen below the Ex B5, lower portion some initial like signature which is said to be the customer signature return date has been mentioned as 25.01.2011 when we compare the details of Ex B5 and Ex A2, in Ex A2, the job card in original mentioned as A to Z mobiles with their address and phone number are all in printed form and the details of cell entrusted mentioned as model 5130, IMEI as 828768/C which is said to have been taken for repair from the complaint of full dead with no battery and back door which is 5 usually returned to the customer while taking the cell for repair. But, under Ex B5 the date with reference to job card is mentioned as 22.01.2011, IMEI No. 35 308 which is entirely different from the details of Ex A2 in which entrusted date is mentioned as 27.11.2010. The opposite party contended that the complainant in order to get money from the opposite party he made conversation which was recorded in C.D. under Ex B6 and the conversation details reduced in writing has been marked as Ex B6 and the District Forum failed to record whether the conversation details are one and the same as recorded in the C.D. and failed to mark the C.D. as M.O. and on perusal of the alleged conversation under Ex B6, the conversation is found in the form of narration except the speech of the complainant in the direct conversation form but the reply and other details are in the narrative form in 3rd person as what are the reply was made and no direct conversation of the parties were recorded and thereby the reliability of Ex B6 conversation version and the C.D. itself is doubtful and in those circumstances from the materials filed by the opposite party alleging that he never used small size job card as produced by the complainant as Ex A2 and used to issue A4 size as found in Exs B1 and B5 and the details in Ex B5 are completely in contra to the details under Ex A2 including the date of entrustment, etc. would also prove that the opposite party prepared Exs B5 and B6 for the purpose of case in order to defeat the claim of the complainant. Further, the opposite party failed to explain or prove how their job card like material with printed form of name of their company and other details under Ex A2 came to the possession of the 6 complainant and they have not alleged that it was stolen or forged by the complainant. Further, the signature of the complainant said to have been affixed under Ex B5 is not proved by the opposite party that the complainant had really attested the same by way of any expert evidence or with their own witness. On perusal of the reply notice, they have admitted the entrustment of the mobile phone for repair on 27.11.2010 with model number and IMEI number incorporated with the details as in the complaint and stated that the job card already given to the complainant was in the size of A4 and was returned by the complainant and also contended that on 21.02.2011 at about 3.00 p.m. the complainant contacted through the cell phone No.8220762928 and threatened the opposite party and demanded money etc., which are all not proved and the mobile number mentioned was not explained to whom that mobile phone was belonging and the details of conversation even though said to have been recorded and filed as Ex B6 which was not proved by sending the C.D. to prove the voice tests etc.,. But, the complainant was in a position to prove that he has entrusted the cell phone on 27.11.2010 with details of IMEI number and model of the phone for which job card Ex A2 was issued by the opposite party. In those circumstances, we are of the view that there was deficiency in service on the part of the opposite party in not returning the mobile phone to the complainant which was entrusted for repair and thereby the complainant is entitled for reliefs under the provisions of Consumer Protection Act and accordingly, the complaint is allowed by setting aside the order of the District 7 Forum. Since the complainant failed to produce the receipt for purchase of cell phone and the value of the same and by considering the nature of the model and since the complainant mentioned the value of the cell phone as Rs.5000/- in para 5 of the complaint, we are of the view that 50% of the same would be fixed as value of the cell phone and directed the same to be paid by the opposite party and as far as the other claims are concerned, we are of the view that a sum of Rs.5000/- as compensation for mental agony and Rs.2000/- as costs could be awarded to the complainant by considering the facts and circumstances of the case.
7. In the result, the appeal is allowed by setting aside the order of the District Forum, Tirunelveli passed in C.C.No.58/2011, dated 05.09.2011 and the complaint is allowed. The opposite party is directed to pay a sum of Rs.2500/- towards cost of the cell phone entrusted by the complainant for repair and Rs.5000/- as compensation for mental agony to the complainant for deficiency in service caused to the complainant by the opposite party and also to pay a sum of Rs.2000/- as costs. All the directions shall be complied within six weeks from the date of receipt of copy of this order.
Sd/- S. SAMBANDAM, Sd/- A.K. ANNAMALAI, MEMBER. PRESIDING JUDICIAL MEMBER. INDEX: YES / NO TCM/Mdu Bench/Orders- 2014/Jan .