Order No.                 .

This is an application u/s.12 of the C.P. Act, 1986.

          Complainant by filing this complaint has submitted that he purchased one Micro Max Model X 294 as per his choice but as per request of the owner of the BDR Communication Model Q76 was purchased by the complainant and after that complainant found after arrival at home that said model has been used 5 or 6 occasions and moreover some photographs of Kolkata was inside the same which was purchased on 16-05-2013 but on 18-05-2013 the said mobile set was found inactive and was not functioning and so he went to the OP1’s shop on 20-05-2013 and OP1 expressed that the software is defective and it shall be repaired but complainant claimed another mobile set but OP1 assured the complainant that after repairing of software it will work accordingly.  But again on 22-05-2013 the set began to face problem and ultimately again on 28-05-2013 complainant went to the OP1 but OP1 did not properly entertain him and, thereafter, stated that machine of the mobile shall be changed when complainant expressed that he want a new set but OP1 expressed that already 7 days expired so new set cannot be handed over in place of that.

          On 29-05-2013 OP informed over phone that it will take another 8 to 10 days to change the machine because they already sent it to the Company.  When complainant asked for such paper but OP1 expressed that there was no necessity of any such paper and after that on 11-06-2013 the complainant tried to contact with OP1 but their phone continuously rang but none attended him.  When complainant went to the shop of the OP1 when OP1 asked him to produce the Xerox copy of the bill, thereafter, on 12-06-2013 the complainant submitted Xerox copy of the bill and it was received by the OP1 and asked the complainant to come after 10 to 12 days after that on 18-06-2013, 11-07-2013, 20-07-2013, 10-08-2013, 21-08-2013 complainant visited the shop of the OP1 but OP1 repeated the same version that said mobile set has yet been received by the OP1 from the company after repair.  Thereafter, on 31-03-2013 complainant went to the OP1’s shop when phone was handed over without battery.  So that was not handed over, thereafter, OP1 expressed that the person who received the same was on leave and after its return the battery shall be searched out and handset shall be returned.  After that complainant on 05-09-2013, 12-09-2013 went to the complainant for handing over the said set but they did not pay any heed and ultimately complainant submitted complaint to Consumer Affairs Office and ultimately on 25-09-2013 complainant was called by the OP1 but complainant expressed that he already went to Forum of Krishnanagar so he was not in a position to receive it.  Thereafter, complainant sent a speed post with a demand for handing over a sealed new pack mobile or the value of the said amount but that was refused and in such a manner complainant has been harassed by the OP and fact remains complainant is a man of Madanpur of Nadia District and he spent a huge money after purchasing the set from the OP and in the above circumstances the complainant prayed for relief and redressal.

          Fact remains in this case notice was served upon the OP1 BDR Communication through this Forum but he refused to accept it and for which the notice was returned with a notes “refused to accept” so we accepted as a “good service” and notice was also served on OP2 Micromax Informatics Ltd. but they did not turn up and accordingly, the case is heard ex parte.

Decision with Reasons

In fact, in this case complainant no doubt has proved beyond any manner of doubt by filing the tax invoice dated 16-05-2013 that he purchased one Micromax Q76 at a cost of Rs.2,850/- from BDR Communication and practically from the said receipt it is clear that complainant went to purchase X-294 but that was not supplied by the OP1.  But OP1 sold another model Q76.  From the said receipt copy it is found that OP received the handset Q76 on 12-06-2013.  But after that the mobile set has not been returned to the complainant as yet and it is also proved that complainant lodged one complaint before Consumer Affairs and Fair Business Practices and notice was served upon  the OP through the said authority but OP1 did not appear in that case for which complainant was compelled to file this case.

          Most interesting factor is that BDR Communication sold the said mobile but did not render service and no doubt a defective mobile set was sold to the complainant for which OP1 failed to give any service though as per warranty norms as noted in the tax invoice complainant is entitled to get service from the OP1 but OP1 did not render any service and in the above circumstances it is proved that OP1 is aware of the fact that he somehow or otherwise cheated the complainant and for which after receipt of the notice of this complaint only ob serving the first page that it was sent from the Consumer Forum OP1 that refused to accept it and it is no doubt an audacity on the part of the OP not to contest the case and not to challenge the complainant’s allegation and not to face the Forum and the very conduct of the OP1 is found unfair and no doubt the OP1 adopted unfair trade practice and sold defective and second hand article as new one to the complainant and by such way he has cheated the complainant who is hailing from Madanpur, Nadia and to get relief from the OP1, the seller he visited the shop at least 15 days and did not get result and in the circumstances we are convinced to hold that complainant not only harassed physically but also mentally and at the same time the complainant by purchasing a mobile set of Micromax Model Q76 ultimately failed to enjoy the service of the same but against that he paid more than 3000 to 4000 for her journey crossing 150 miles at Kolkata to visit the OP1 so considering that fact and the conduct of the OP1 it is proved that OP1’s conduct is unmerchantable and for which the complainant should be properly compensated and at the same time OP1 should be properly penalized for adopting unfair trade practice. 

In the result, the case succeeds.

Hence,

Ordered

That the case be and the same is allowed ex parte against OP1 but OP1 shall have to pay a litigation cost of Rs.5,000/-(Rupees Five Thousand only) to the complainant and same is dismissed against OP2 without any cost. 

          OP1 is directed to refund a sum of Rs.2,850/-(Rupees Two thousand eight hundred fifty only) the total price of the said mobile set and shall have also to pay a sum of Rs.5,000/- (Rupees Five thousand only) as compensation for harassing him and causing mental pain and agony and also to spend huge money for his journey from Madanpur to Kolkata for only getting service from the OP1 and also for not getting any service from the OP1.

          For adopting unfair trade practice by the OP1 and also for selling second hand mobile set as new one to the complainant OP1 is proved a dishonest businessman and his unmerchantable attitude is well proved and to protect consumers from such dishonest businessman in future a sum of Rs.7,500/- (Rupees Seven thousand five hundred only) is imposed as punitive damages which shall be paid by the OP1 before this Forum on proper receipt.

          OP1 is hereby directed to comply the order very strictly within 15(fifteen) days from the date of this order failing which for non-compliance of the Forum’s order penal interest @150/- shall be assessed till full satisfaction of the decree and even if it is found that OP1 is reluctant to comply that for implementation of this order penal action shall be started against OP1 and OP1 shall be liable for this.

Dictated & Corrected

      by me