SKY CELL COMMUNICATION LTD. vs M. CHINNASAMY

-THE opposite party in O.P. 781/1997 on the file of District Forum, Chennai (South) is the appellant herein.

THE case of the complainant was as follows : He was a practicing Advocate. He bought a handset for Rs. 14,999 on 17.2.1997 from the opposite party and became subscriber with mobile No. 53272. He was not given demonstration regarding the operation of the instrument. THE instrument was not working properly. It was showing low battery condition and even though he did not make any calls after May 97, the opposite party continued to send monthly bills regularly to the complainant. His grievances were not rectified. He caused a lawyer''s notice to be issued on 12.8.1997 for which, there was no response. Under such circumstances, the complaint came to be filed for a direction to the opposite party to pay a sum of Rs. 50,000 for mental agony and untold hardship suffered at the hands of the opposite party, and adverse effect on the complainant''s profession from 27.2.1997 besides the cost or in the alternative to pay a sum of Rs. 14,999 with interest @ 24 p.a. from the date of purchase till realization. The opposite party resisted the complaint inter alia contending as follows : The instrument was given along with users manual and demonstration of the instrument was given at the time of delivery of the instrument. Subsequently also the representatives of the opposite party tried to meet the complainant number of times but they could not meet. The few times, they could meet him, he asked them to come on some other date as he was busy. The opposite party was not the manufacturer of the instrument. If the instrument was defective he ought to have brought it to the office of the opposite party or to the Service Centre to the manufacturer indicated in the users'' manual, which was not done. Further, the complainant had not pointed to any particular defect in the instrument except making a vague statement. In fact in the complaint he had admitted that he did not know whether the instrument was in good working condition or not. In the subsequent paragraphs he had admitted that he had been using the instruments for two months. His grievance had not been proved. The low battery condition should be due to failure to charge the battery regularly while using the instrument. As long as he was one of the subscribers of the mobile services, he had to pay the monthly bills whether he used the mobile services or not. There was no deficiency in service.

Before the District Forum on the side of the complainant Exs. A1 to A14 were marked while on the side of the opposite party no documents were marked and by order dated 14.2.2000 the District Forum allowed the complaint and directed the opposite party to return Rs. 14,999 together with interest at 18% p.a. from 27.2.1997 till the date of realization, damages of Rs. 10,000 and Rs. 250 towards the cost. It is as against that the present appeal has been filed.

THE learned Counsel for the opposite party/appellant submitted that the District Forum failed to note that there was no proof that the instrument was defective as admitted by the complainant in para 6 of the complaint. THE complainant was not able to pin-point any particular defect in the instrument. He had admitted that he had been using the instrument for two months by making overseas calls to his family members. This clearly showed that the instrument was in good working condition. THE low battery condition was due to the battery not being charged and for that the instrument was in good working condition. THE low battery condition was due to the battery not being charged and for that, the opposite party could not be penalized. If the complainant had doubt about any defect in the battery he should have brought the instrument to the office of the opposite party or to the Service Centre for testing the same. Subsequent to the lawyer''s notice, the representatives of the opposite party tried to meet the complainant, but could not meet him as he was away. THE complainant was not having proof of grievance. THE District Forum ought to have dismissed the complaint. Per contra, on behalf of the complaint in following submissions were made. The complainant opted to buy a mobile phone from the opposite party. The sale representatives brought his handset, they did not give any operational instructions and promised to send the technical person to give demonstration. The technical person did not keep his promise. The handset did not function properly. The battery became low within an hour of working even though it had been kept plugged for charging. The complainant had sent notice under Ex. A10. Though the opposite party had received they did not choose to send any reply. There was no response from the opposite party. The District Forum had on a careful consideration of evidence produced before reached the correct conclusion that there was deficiency in service on the part of the opposite party. No exception could be taken to the same.

ACCORDING to the opposite party, representatives had made several attempts to meet the complainant, but they could not meet him, because of his non-availability. This could hardly be a proper excuse. There was notice issued through lawyer. If really, the opposite party intended to give good service, they ought to have responded at least after the lawyer''s notice tried to find out as to what was the problem and made an attempt to rectify the defect if any. On the side of the complainant as many as 14 documents have been produced. On 12.3.1997 under Ex. A3 he had a request for change of the telephone. On 12.8.1997 under Ex. A10 he caused a notice to be issued to the opposite party Ex. All being the acknowledgement, Ex. A12 being the receipt, Ex. A13 being the bill of opposite party and Ex. A14 dated 9.2.1998 being the letter from the opposite party to the complainant. The Ex. A14 dated 9.2.1998 has no relevance to the complaint of the complainant. The letter is so very impersonal that there is no reference to the complaint of the complainant. Even as claimed by the opposite party that soon after the complainant expressed his dissatisfaction of the working of the cell phone their representatives tried to meet him and it was not possible to meet him. The same should have found a place in Ex. A14. This would clearly show that the opposite party was not keen to satisfy the customers in respect of the complaints with regard to the working of the mobile service. As already pointed out, the opposite party did not choose to respond to the lawyer''s notice nor did they attempt to substantiate their stand that the representatives tried to meet the complainant to rectify the defects. For all the reasons stated above, we do not find any merit in the appeal. The appeal fails and the same is dismissed. Appeal dismissed.