DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016.

Case No.870/2009

Sh. Sunil Kumar

S/o Sh. Malkhan

R/o H. No. J-3/68F,

Aradhna Apartment, Khirki Extn.

Malviya Nagar,

New Delhi-110017                                                      ……Complainant

Versus

1.       M/s Bharat Communication

          Through its Proprietor

          Shop No. 87, Sarojni Nagar Market,

          New Delhi-110023

2.       M/s Hotspot Retails Ltd.

          (Service Centre)

          K-32, Lajpat Nagar-II, Delhi

3.       M/s Spice Mobile Limited

          Through its Director/Principal Officer

          D-1 Sector-3, Noida-201301 UP                  ……Opposite Parties

                                                          Date of Institution          : 09.12.09                                                            Date of Order        : 08.12.15

Coram:

Sh. N.K. Goel, President

Ms. Naina Bakshi, Member

O R D E R

Brief facts of the case are that Complainant purchased a mobile handset, make spice, model No.M-5252, EMEI No.354989033971843 manufactured by OP No.3 from OP No.1  for a sum of Rs.3400/- vide bill No.987, book No.20 dated 16.08.2009.  Just after the purchase of handset, he came to know that the said handset was not working properly.  On 02.09.09, OP No.2 took the mobile set for repairing the defect and OP No.2 handed over a new mobile handset bearing EMIE No.354989033971843, detailed as follows:-

On 14.10.2009, he was assured that the same would properly work in future but he found that the same was not working properly as it was a defective piece and there was manufacturing defect in it. It used to stop working automatically.  He personally met with the OP No.2 on 06.11.2009 but he refused to do anything and also told him that this type of spice dual mobile is not successful in these days and what can be done.  Hence, pleading deficiency in service on the part of OPs the Complainant has prayed as under:-

1. Direct the OPs to refund the amount of the sale consideration i.e. Rs.3400/- alongwith interest @ 24% per annum from the date of its purchase till its realization.
2.  Direct the OPs to pay Rs.15,000/- to the Complainant as compensation for the mental agony and harassment undergone by the Complainant.
3. Direct the OPs to pay Rs.5500/- to the Complainant as litigation charges.

When no one appeared on behalf of the OP No.1, the OP No.1 was proceeded exparte vide order dated 25.01.2012.

In the written statement OP No. 2 has denied that they had given him new handset bearing IMEI No. 354989033971843 because the said IMEI no. is the same IMEI no. of model No.M-5252 purchased by the Complainant himself and both the handsets cannot have the same EMEI nos. (Para 4).  It is stated that it put its best effort to resolve the defects and handed over the repaired handset to the Complainant.  Complainant is not entitled to any relief. OP No.2 has prayed for dismissal of the complaint with exemplary costs.

In the written statement OP No.3 has stated that OP No.3 is an importer and not the manufacturer of the mobile phones. It is denied that just after purchasing the handset it started giving trouble.  It is stated that Complainant never initiated any negotiation nor sent any demand notice in lieu of grievances.  OP No.3 has prayed for dismissal of the complaint.

Complainant has filed rejoinders to the written statements of OP No.2 & 3.

Complainant has filed his own affidavit in evidence testifying all the facts as alleged in the complaint. On the other hand, affidavits of Sh. Manish Kumar Sharma and Sh. B. M. Aggarwal have been filed in evidence on behalf of OP No.2 & 3 respectively deposing all the facts as mentioned in the written statements.

Parties have also filed their respective written arguments. We have heard the arguments on behalf of the Complainant and have also gone through the record very carefully.

Complainant has placed on record a copy of invoice dated 16.08.09 (copy Ex. C-1) showing purchase of Spice M-5252, IMEI No.354989033971843 for a sum of Rs.3400/- from OP No.1.  The Complainant has further placed on record a copy of the job sheet dated 14.10.09 (copy Ex.C-2) whereby he had handed over the handset bearing No. 354989033971843 to the  OP No. 2. A perusal of the job sheet shows  that the handset had been delivered with the problem of “ battery back, charging, heat up phone, low battery”.   Apart from this, no evidence has been led on record by either party in the shape of any document to show that the handset had other damages and required other repairs.  According to the Complainant on that day OP No.2 had given him a new mobile phone bearing IMEI No. 354989033971843. This was the same IMEI No. which had been mentioned on the mobile phone purchased by the Complainant on 16.08.2009. (copy of retail invoice Ex. C1). We do not feel inclined to believe that the two mobile handsets had the same IMEI Nos.  Moreover, in corresponding para No.4 of the rejoinder to written statement of OP No.2, Complainant has not denied the said fact but has stated that he had got repaired the mobile handset. Complaint is thus, without any cause of action and it is false and frivolous. We dismiss the complaint with no order as to costs.

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations.  Thereafter file be consigned to record room.

Announced on  08.12.15.

(NAINA BAKSHI)                                                             (N.K. GOEL)                                                                                                      MEMBER                                                                           PRESIDENT