OFFICE OF THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KAMRUP,GUWAHATI
C.C.14/2011
Present:-
1)Md.Sahadat Hussain, A.J.S. - President
2)Smti Archana Deka Lahkar - Member
Mahesh Kumar Sah - Complainant
S/O- Sri Jogendra Pd.Sah
R?O House No.40, Pragjyotish Path,
Santipur Hillside, Guwahati.781009,
Kamrup,Assam
-vs-
1) Alok Communication - Opp.parties
Represented by its proprietor,
Sri Vinay Tiwari.
2) Mr.Bunty,
Authorized Signatory.
Both are situated at opposite Gurucharan Poly Clinic, Md Shah Road, Paltan Bazar,Guwahati-8.P.S.Paltan Bazar.
Appearance : -
Ld. advocate for the complainant -Complainant himself.
Ld. advocate Mr.Tridip Kalita for Opp.Party No-1
Date of argument- 02. 08. 2017
Date of judgment- 30. 01. 2018
JUDGMENT
This is a complaint U/S- 12 of the Consumer Protection Act, 1986.
1) The complaint filed by Sri Mahesh Sah was admitted on 16.3.11 and notices were served upon the opp.parties and both opp.parties filed their written statement. The complainant side filed evidence of Mahesh Sah and Sri Arjun Sah in affidavit and they are cross-examined by the opp.party sides, Ld.advocate. Thereafter, the opp.party side filed Sri Binoy Tiwari and Sri Bipin Ch.Tripathy on affidavit and they were cross-examined by the complainant side’s ld counsel. Both sides filed respective written argument and then-after, on 2.8.17, we have heard oral argument of the complainant and of Ld.advocate Mr.Tridip Kalita for the opp.parties. On 17.8.17, we have tested the charging capacity of the disputed mobile in the office and found that it is taking charge . The mobile is kept in safe custody. As the president had gone on earned leave in previous month , the judgment could not been delivered on 2.11.17; and today, we deliver the judgment which is as below.
2) The complainant’s case in brief is that he had purchased one Sci phone-NM Fujizone Touch Screen Dual Sim GSM phone from Home Shop 18 T.V. by Special order No. 71472946 on cash payment of Rs.5999/- on 20.7.09 and he inserted SIM therein and used upto Oct/Nov 2009, but hand-set stopped functioning due to invalid registration of IMEI number as per Government of India as the mobile hand-set was made in China. He then, removed the SIM and sent the hand-set to Opp.Party No.1 through his younger brother Arjun Sah for registration of valid IMEI numbers for both SIMS were registered in the mobile, but after few minutes of registration of IMEI numbers , the hand- set automatically switched off due to non-working of invalid IMEI number and then he again sent the hand-set to Opp.Party No.2 and Opp.Party No.2 received the same and asked his brother to take it after few days. His brother on the next day visited Opp.Party No.1 to know about the hand-set, but Opp.Party No.2 informed him that the hand-set and SIM were opened and found that software application is not supporting the mobile hand-set because the software of this set was damaged at the time of installation/registration of the valid IMEI numbers by them and so it will take few more days to arrange the software because it is advanced software which is not easily available in the market. In the first week of Feb./2010 Opp.Party No.2 called his brother , but Opp.Party No.1 & 2 failed to repair the damage, nor issued any job card even after receiving Rs.400/- as charge of installation and registration of IMEI numbers, however they issued a Job Card No.2040 on 7.4.2010 only. The opp.parties sent the hand-set to Home Shop 18 T.V at Delhi to load the software. The help line of Home Shop 18 T.V informed them that the technical person of Alok Communication had destroyed the software as they are not proper trained expert. Opp.Party No.2 called him again in the middle part of July/2010 and asked him to give time for arranging of advance software in the hand-set to solve the problem. His mobile hand-set is in the custody of the opp.parties till 2010 and they failed to repair the said hand-set and then he sent notice to the opp.parties to replace it with a new one of the same value having of advance facilities like Big Screen, dual SIM, mega pixel camera, 2 GB Memory card (extendable to 8 GB), Video Player,Audio Player, 1000 phone memory , 1000 SMS store, GPRS, INTERNET Support, Bluetooth, FM Radio etc.alongwith compensation of Rs.50,000/- for professional loss and Rs.25,000/- mental pain, agony and harassment, Rs.2,000/- conveyance expenses, Rs.3,000/- cost of notice within seven days. Opp.parties replied the legal notice. On 3.9.10, Opp.Party No.1 called on him through phone and told him that they should have sent the mobile to the manufacturer for installation of IMEI number. The opp.parties committed deficiency of service by dishonest/ misappropriation of his mobile hand-set and by not registering the IMEI number. He prays for directing the opp.parties to replace the defective hand-set with a new one of value of Rs.5,999/- with all latest facility and to pay compensation of Rs.50,000/- for professional loss, Rs.25,000/- for mental agony, Rs. 2,000/- for conveyance expenses, Rs.6,000/- as cost of notice as well as the cost of proceeding.
3) The gist of the pleading of the opp.parties is that there is no cause of action for filing the complaint. The complaint is fake and false. It is not true that the complainant had purchased the Sci Phone NM Fujizone Touch Screen Dual Sim GSM phone from them. The statement of the complainant that the hand-set stopped working due to invalid registration of IMEI number as per the order of the Government of India as the mobile hand-set was made in China and he had removed the SIM and kept the mobile hand-set in the box in switched off mode due to non working of invalid IMEI for few months are all false statements. The statements of the complainant that he sent the hand-set to Opp.Party No.1 through his brother for registration of IMEI number for both SIMS in the first week of 2010 because Opp.Party No.1 is the licensee and authorized centre to registered IMEI number and mobile hand-set was automatically switched off when it was switch on and the hand-set could not show Dual SIM network and it became functionless are also false statements. The statement of the complainant, that the Opp.Party No.2 called the brother of the complainant and received the hand-set from him for writing valid registration of IMEI Number and informed him that hand-set is not working when it was switched on and Opp.Party No.2 asked him to leave the hand set for few days to solve the problem and it was handed over to Opp.Party No.1 for writing valid registration of IMEI number are all false statement. The statement of the complainant that Opp.Party No.2 informed the brother of the complainant on the next day that hand-set was opened and software is not supporting the mobile hand-set and SIMS because the set was damaged at the time of installing valid IMEI number by the opp.parties and it would take few more days to arrange software because it is advanced software not usually available in the market are all false statements. The statement of the complainant that between the first week of Feb to first week of April,2010 , Opp.Party No.2 called upon complainant’s brother in numbers of time to enquire the condition of hand-set without giving specific answers and that he visited Opp.Party No.1 & 2 , they showed lame excuses and failed to repair the hand-set, but damaged the hand-set and that they received Rs.400/- as charge for registration of IMEI number and Job Card No. 2040 was issued by them are all false statements. It is fact that on 7.4.2010 the complainant delivered the alleged hand-set to them for repairing, and after inspection they found that there was SIM writing problem and Opp.Party No.2 issued a receipt after receiving the hand-set from the complainant without IMEI number and the battery No., and receipt No. and they sent the hand-set to Home Shop 18 T.V. at Delhi for repairing and that they received it back in the middle part of July,2010, they asked the complainant for another one month for arranging software and the complainant allowed the time, and due to non-functioning of the mobile the complainant suffered professional loss are all false statement. The statement of the complainant that till 18.8.10 the hand-set is in the custody of the opp.parties without solving the problem of it and opp.parties are not in position to solve the problem created by the opp.parties themselves and Opp.Party No.2 harassed and misbehaved the complainant that he demanded new mobile of equal value are all false statements. The complainant is not entitled to any new mobile hand-set from them. The complainant did not pay anyservice fee to them till date. The mobile hand-set is already repaired , but the complainant refused to accept it from them by paying service charge. The statement of the complainant that he served legal notice on them and they are negligence in writing /installation of IMEI number in the hand-set resulting destruction of software of the hand-set are also false statement. The statement of the complainant that Opp.Party No.2 called him on 3.9.10 and told him that he should have to send the hand-set to the manufacturer for writing IMEI number are all false statements. The complainant refused to accept the hand-set after installation of new software on the plea of replacement with a new one which he is not entitled . They are ready to produce the hand-set before this forum. They repaired the hand-set and requested the complainant on 25.6.2010 to 10.7.10 and on several subsequent dates to receive the hand-set from them, but he refused to receive the same. He suppressing the material fact by not producing the backside of the job card issued on 7.4.10. The hand-set is not showed any network problem. Home Shop 18 T.V. returned the hand-set confirming that new supporting software was not available with them and then they informed the complainant that since the hand-set is a Chinese mobile the software is not easily available in the market and they need further time to collect the software and the complainant also asked them to retain the hand-set for arrangement of such software. On 20.5.10 they managed the software of another customer of a mobile from Bangkok and on the consent of the said customer they installed the same in the hand-set of the complainant and after installation of the software the hand-set started working and it was kept for observation for 10-12 days . They requested the complainant to take back the hand-set, but the complainant refused to take back it demanding replacement with new one. They have repaired the hand-set within reasonable period, and hence they are not guilty of deficiency of service and so, the complaint is liable to be dismissed.
4) We have found that it is also both sides’ admitted fact that M/S Alok Communication own by Sri Binoy Tiwari has been doing the business of repairing of mobile handset of different companies and they represented themselves as authorized repairing centre of mobile handset of different companies.
It is also both sides’ admitted fact that the complainant Sri Mahesh Kr.Sah had sent his mobile handset to Opp.Party No.1 for registration of valid IMEI Nos.for both SIMS in the first week of Feb.2010 as Opp.Party No.1 is the licencee and authorized centre to register IMEI Nos. in the handset, where IMEI Nos. are not available; and accordingly IMEI Nos. for both SIMS were registered, but after few minutes of registration of IMEI Nos. the handset automatically switch off and on switching on the handset it could not show dual SIM network or any network of the screen of the mobile and the mobile handset became functionless..
5) The complainant sides’ states in evidence that his brother on the next day visited Opp.Party No.1 to know reason of the non-working of the mobile handset and Opp.Party No.2 informed him that the software application is not supporting to the mobile handset as the software of the said hand set was damaged at the time of registration of valid IMEI Nos. and so they require more days to arrange software and they also paid Rs.400/- to the opp.party for repairing the handset and Opp.Party No.2 had issued a job card No. 2040 in the complainant’s name of stating valid of SIM writing problem.
We have perused Ex.2, which is Job card issued by Opp.Parties to the complainant and found that in the job card it is written that SIM writing problem and job card is date 7.4.10. Thus, it is established that the complainant deposited handset again to the opp.parties on 7.4.2010 for SIM writing problem.
6) The complainant further states that the Opp.Party No.2 informed the complainant that they need one month for arranging advance software for the handset and solving the problem and till 18.8.2010 the hand set in custody of the opp.parties and opp.parties are not in position to solve the problem of software application and that he visited opp.parties establishment to know about the repairment of the handset, the Opp.Party No.2 badly treated him and then he demanded compensation for delay and replacement of the handset and he sent legal notice to the op.parties vide Ex.3 which was received by the opp.parties and then Opp.Party No.1 called him over his phone on 3.9.2010 stating that they are not responsible for damage of the mobile handset nor committed deficiency of service and therefore, it was needed to send the handset to the maker for writing valid IMEI Nos. and solving the problem; and Opp.Party No.2 also quarreled with him and then he again sent a reminder to Opp.Party No.1 on 8.9.2010 demanding replacement of the mobile and to pay compensation to the tune of Rs.50,000/-, Rs.25,000/- as well as Rs.2,000/- for convenient cost and Rs.6,000/- as cost of the proceeding vide Ex.6. He further states that the mobile is yet in the possession of the opp.partieis . The opp.party side witness, Mr.Binoy Tiwari states in evidence that the mobile handset was sent by them to Home Shop 18 T.V. , New Delhi, but the latter sent the mobile back to them with a note that new software could not be arranged by them, and thenafter Opp.Party No.2 installed the software in the said handset after filling similar software in the mobile handset belonging to one of their customer, and then mobile handset started to work and it was kept under observation for 10 to 12 days and after observation they informed the complainant on 25.6.2010 to 7.7.2010 and on several subsequent dates that his mobile handset has been repaired, and asked him to collect the mobile handset from their shop after paying necessary service charge, and accordingly, the complainant visited their shop during last week of July, 2010, but demanded a written warranty for one year or replacement of it in the pretext of delay in repairing. He , further states that the mobile was repaired within a period of 2 and ½ months from the date of receipt and that delay was done in search of similar software. He further states that in the first week of Feb.2010 while they had done registration of IMEI Nos. the handset was not automatically switching off, but on swiching on it, started to function. From the evidence of the O.P.No.1 it is seen that their stand is that the software problem of the handset was repaired by them, after receiving back the handset from Home Shop 18 T.V., but the complainant refused to receive back the handset on the ground of delay caused in repairment. Now the question is that whether the mobile handset was repaired by opp.party side and whether it is repaired within reasonable time .The complainant side argues that it was not repaired properly and software problem yet exists in the handset and that was due to damage caused by the opp.party side. The complainant side Ld.advocate further submits that the opp.party side has no qualified technician for repairing handset and Opp.Party No.2 is not qualified technician for repairing handset. In the cross-examination Opp.Party No.2 (O.P.W.2) Sri Bipin Kr.Tripathy alias Banty Tiwari states that he used to see the repairing and sales of mobiles in their shop, and he has proficiency certificate and Ex.D is his proficiency certificate, and he has undergone three months course . We have perused Ex.D and found that the certificate issued by a proprietor of a Training Centre of Mumbai which has no any registration as training institute, and moreover the said certificate does not state that Opp.party No.2 had undergone three months course in hardware, software technology. As certificate is given by a training centre having no proper registration and as the period of course undergone by Opp.Party No.2 not mentioned therein; the said certificate cannot be accepted as a professional certificate of Opp.Party No.2. Therefore, we hold that Opp.Party No.2 has no authority or qualification to repair cellular phone. It is already found that the concerned handset was given to Opp.Party No.1 only for registration of IMEI No. and op.party side handed over the mobile to the complainant stating that IMEI No. was registered, but after taking delivery the complainant found that the handset automatically switched off and did not function and then they again handed over the mobile handset to opp.parties in the first week of April, 2010 with SIM writing problem of software. Thus, it is clear that after returning the handset with installing the IMEI No. the handset started to show SIM writing problem and that SIM writing problem was caused to the handset due to repairing by Opp.Party No.2 who has no quaification and experience for repairing cellular phone. Therefore, the opp.parties are liable to repair the said problem at their own cost. It is also found that opp.party side sent the handset to Home Shop 18, New Delhi for repairing , but the later returned the mobile stating that the software problem is found which they cannot repair. It is found that the opp.party side clearlystates that after receiving the mobile handset , they installed software in the said mobile with the help of a mobile handset of another customer, but they have not adduced evidence to prove that fact. The said mobile is examined by this forum in the premises of this forum on 11.1.18, but found that handset is not functioning. Thus, it is crystal clear that due to damage caused in the handset by Opp.Party No.2 in the first repairing, the handset is not functioning. So, it is an act of deficiency of service on the part of the opp.partieis and hence they are liable to pay the value of the handset which is Rs.5,999/-. It is also found that the opp.party side caused harassed and mental agony to the complainant for several months by not repairing the handset and by causing damage to the handset and therefore they are also liable to pay another amount of Rs.5,000/-as compensation. Thirdly, for no fault of the complainant, he is to bear cost in prosecuting the opp.parties in this forum and therefore the opp.parties are also liable to pay at least Rs.3,000/- as cost of the proceeding.
7) Because of what has been discussed as above the complaint against both the opp.parties are allowed on contest and they are directed to pay the value of the mobile handset which is Rs. Rs.5,999/- and possess the hand-set and also to pay Rs.5,000/-as compensation and Rs.3,000/- as cost of the proceeding to which they are jointly and severally liable . They are directed to pay the awarded amount within 45 days , in default of which ,the amounts carry interest @ 6% per annum from this day.
Given under our hand and seal on this the 30th day of Jan,2018.
(Smti.Archana Deka Lahkar) (Md.Sahadat Hussain)
Member President
