Before the District Consumer Disputes Redressal Forum, Rohtak.
Complaint No. : 307.
Instituted on : 03.09.2014.
Decided on : 12.03.2015.
Sanjeet Singh Nandal s/o Sh. Baljeet Singh Nandal, resident of village-Garhi Bohar, Tehsil & District-Rohtak.
………..Complainant.
Vs.
- M/s Anmol Communication, Shop No.2, Ashoka Plaza, Near ICICI Bank, Rohtak(Through its Proprietor/Owner).
- MPS Telecom Private Limited, 702-A, Arunachal Building 19, Barakhamba Road, Connaught Place, New Delhi-1100011. (Through its MD/Authorised Representative).
- M/s Swastik Systems, Shop No.7, Bapu Asha Ram Complex, Chhotu Ram Chowk, Rohtak Haryana, (Through its Proprietor/Authorised Person).
……….Opposite parties.
COMPLAINT U/S 12 OF CONSUMER PROTECTION ACT,1986.
BEFORE: SH.JOGINDER KUMAR JAKHAR, PRESIDENT.
MS. KOMAL KHANNA, MEMBER.
Present: Sh. Sunil Nandal, Advocate for the complainant.
Opposite party No.1 and 2 already exparte.
Sh. Ram Kumar Manager for opposite party no.3.
ORDER
SH. JOGINDER KUMAR JAKHAR, PRESIDENT :
1. The present complaint has been filed by the complainant with the averments that he had purchased a mobile set on 23.11.2013 Make HTC Desire U dual sim T327w bearing IMEI No.357212051306140 worth Rs.11900/- from the opposite party no.1. It is averred that opposite party no.1 is retailer and opposite party no.2 is importer and opposite party o.3 is service centre of the above said mobile phone. It is averred that from the day of purchase the alleged handset is not functioning properly due to some technical/manufacturing defect like battery is not being charged properly, speaker is not working smoothly and sometimes it goes “Hang” and the matter was reported to opposite party no.3 many times and every time it was assured to the complainant that the handset is working properly and there is no technical fault. Lastly on 28.7.2014 the opposite party no.3 took the above said handset and issued a work order sheet in this regard and from that day opposite party no.3 is avoiding the matter on one pretext or the other. It is averred that the act of opposite parties of supplying the defective handset and not repairing the same despite his repeated requests and reminders is illegal and amounts to deficiency in service. As such it is prayed that the opposite parties be directed to refund the price of mobile Rs.11900/- along with interest, to pay Rs.40000/- as compensation on account of mental agony, harassment and Rs.40000/- on account of litigation expenses to the complainant.
2. Notice of the present complaint was sent to the opposite parties. But opposite party no.1 & 2 did not appear despite service and opposite party no.2 vide order dated 14.10.2014 and opposite party no.1 vide order dated 3.11.2014 of this Forum were proceeded against exparte. However, opposite party no.3 vide its written reply has submitted that the complainant had purchased the phone on 23.11.2013 and has used this regularly without any problem. He faced some problems after almost 8 months. It is averred that the complainant approached the opposite party on 28.07.2014, his complaint was entertained on the same day and all the problems were mentioned in the job sheet. It is averred that the answering opposite party is only liable to update the software and was not allowed to repair or replace any part and complainant was told about this fact and his handset was sent to the company service centre. After repairing the handset was received on 05.09.2014 but the complainant refused to accept the same and wants a new set. It is averred that the opposite party is not in a position to replace his phone being only a collection centre. The manufacturing defect is not acceptable after using the phone for 8 months. It is averred that there is no deficiency in service on the part of answering opposite party and dismissal of complainant has been sought.
3. Both the parties led evidence in support of their case.
4. Complainant in his evidence tendered his affidavit Ex.CW1/A, documents Ex.C1 to Ex.C5 and has closed his evidence. On the other hand, opposite party no.3 in his evidence has tendered affidavit Ex.RW1/A, document Ex.R1 and has closed his evidence.
5. We have heard ld. Counsel for the complainant as well as opposite party no.3 and have gone through material aspects of the case very carefully.
6. There is no rebuttal to the evidence that the complainant had purchased the mobile set for a sum of Rs.11900/- on 23.11.2013 from the opposite party no.1 as is proved from bill Ex.C2. It is also not disputed that as per job sheet Ex.C5 dated 28.07.2014 issued by the opposite party no.3 there was problem of Network service failure including drop call, roaming” in the mobile set.
7. After going through the file and hearing the parties it is observed that it is admitted by the opposite party no.3 in its job sheet Ex.C5 that the mobile set was in warranty period and there were some defects in the set. The contention of the opposite party no.3 is that the alleged handset was got repaired from the company but the complainant is not ready to take the alleged repaired handset. It is further contended that the opposite party no.3 is not allowed to repair or replace any part of mobile set and it is only the duty of company/manufacturer regarding the manufacturing defect and has also given a statement on this effect on dated 25.02.2015. On the other hand, contention of ld. Counsel for the complainant is that the handset in question was not repaired by the opposite parties despite his repeated requests and visits and the set in question is still in the possession of the opposite party no.3 i.e. Service Centre. It is also contended that due to non-repair/replace of handset, the complainant had to purchase a new handset and has placed on record copy of bill Ex.C4. It is also observed that opposite party no.1 & 2 had not appeared to rebut the version taken by the complainant in his complaint and were proceeded against exparte and as such it is presumed that opposite party no.1 & 2 have nothing to say in the matter. Therefore all the versions put forth by the complainant regarding manufacturing defect in the alleged mobile set stands proved. In this regard we have placed reliance upon the law cited in 1(2007) CPJ 120 titled Head Marketing and Communication Vs. Ankush Kapoor & Ors. whereby Hon’ble U.T. Commission, Chandigarh has held that: “Handset giving problems from day one/Defects could not be rectified inspite of being repaired twice-Undoubtedly, it suffered from inherent defects- Deficiency in service proved- Forum rightly ordered refund of cost of handset with interest”, as per 2008(1)CPC 52 titled Sony Ericsson India Ltd. Vs. Ashish Aggarwal, Hon’ble National Commission has held that: “Mobile purchased from OP had problem in key pad-New hand set after replacement also found to be faulty-State Commission directed refund of the money while OP insisted to offer replacement by new hand set-Refund of amount is justified as deficiency in service is writ large-Order upheld” and as per III(2007)CPJ 319, titled Samsung India Electronics Pvt. Ltd. Vs. A.S.Industries & Anrs., Hon’ble Delhi State Commission has held that: “Old software in new set, installed by O.P.-manufacturing defects-Goods sold with fault or imperfection liable to be replaced or defect removed or refunded under C.P.Act”. In view of the aforesaid law, which are fully applicable on the facts & circumstances of the case, the complainant is entitled for refund of price of mobile set. The handset in question is already with the opposite party no.3.
8. In view of the aforesaid findings and discussions, it is directed that the opposite party no.2 i.e. manufacturer shall refund the price of mobile set i.e. Rs.11900/-(Rupees eleven thousand nine hundred only) along with interest @ 9% p.a. from the date of filing the present complaint i.e. 03.09.2014 till its actual realization and shall also pay a sum of Rs.1000/-(Rupees one thousand only) as litigation expenses to the complainant within one month from the date of order. Complaint is allowed accordingly.
9. Copy of this order be supplied to both the parties free of costs and shall also sent to the opposite party no.1 & 2 through regd. post.
10. File be consigned to the record room after due compliance.
Announced in open court:
12.03.2014.
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Joginder Kumar Jakhar, President
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Komal Khanna, Member.
