Consumer Complaint No. 196 of 2015
Date of filing: 04.9.2015 Date of disposal: 14.12.2016
Complainant: Partha Sarathi Mukherjee, S/o. Subal Kumar Mukherjee, Vill. & PO: Shankarpur, PS: Gurap, District: Hooghly, Pin – 712 303.
-V E R S U S-
Opposite Party: 1. CELKON IMPEX PVT. LTD., represented through its Manager, 3rd Floor, Block –II, My Home Hub, Hitech City, Madhupur, Hyderabad, Andhra Pradesh, Pin – 500 081.
2. Expunged.
3. Mukherjee Telecom, represented through its Proprietor, Baranilpur More, Anandapally, PO: Sripally, District: Burdwan, PIN - 713 103.
Present: Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant: Ld. Advocate, Suvro Chakraborty.
Appeared for the Opposite Party No. 1: None.
Appeared for the Opposite Party No. 3: Ld. Advocate, Moumita Mitra.
J U D G E M E N T
This complaint is filed by the Complainant u/S. 12 of the Consumer Protection Act, 1986 alleging deficiency in service as well as unfair trade practice against the OPs as the OPs have neither replaced his defective mobile hand set nor refund the money paid by him at the time of its purchase till filing of this complaint.
The brief fact of the case of the Complainant is that he purchased a Celkon 7045 mobile phone from the OP-2 on 31.09.2013 against payment of consideration for Rs.3,000/- and accordingly the OP-2 issued an invoice in favour of him. The said mobile was under the coverage of warranty for a period of one year. Within a very few days from its purchase several problems cropped up in the said mobile i.e. during its use the set became shut down automatically, technical problems, absence of light on the screen etc. For removing the defects he rushed before the OP-3 on 25.10.2013. The officials received the said set from the Complainant and issued a job sheet in his favour. The OP-3 had admitted in its job sheet that there is touching problem along with S/p problems. With a view to repair the problems the OP-3 received the said set from the Complainant and kept the same in its custody. Since then inspite of several visits and requests repair could not be done and the OPs have failed to return the set after its necessary repairing to him nor replace the set with a new and defect free one. Being compelled the Complainant send legal notice on 28.01.2014 to the OPs asking for replacement of the defective mobile set, but inspite of receipt of the said notice the OPs did not bother to take any fruitful step in this regard and the OP-3 has kept the said set in its custody till date. Such conduct of the OPs suffers from deficiency in service and unfair trade practice and for this reason the Complainant is entitled to get adequate compensation from the OPs. Finding no other alternative the Complainant has approached before this Ld. Forum by filing this complaint praying for direction upon the OPs either to replace the defective mobile set with a new one or to pay a sum of Rs.3,000/- to him towards the consideration as paid by him during its purchase, to pay a sum of Rs.3,000/- as compensation and litigation cost of Rs.5,000/- to him.
After admission of this complaint notices were issued to the OPs, but inspite of receipt of the notice by the OP-1, chose not to turn up to contest the complaint either orally or by filing any written version, so this ld. Forum was pleased to pass an order that this complaint will run ex parte against the OP-1. As the notice could not be served upon the OP-2 which was returned as unserved with the endorsement as ‘addressee left without any intimation’, the Complainant had prayed for expunging the name of the OP-2 from the cause title of the complaint and accordingly the prayer was allowed by this Ld. Forum on 16.05.2016. Only the OP-3 has contested the complaint by filing written version.
The petition of complaint has been contested by the OP-3 by filing written version contending that this OP is only the service centre, not the manufacturer, so it is liable for any manufacturing defect and this reason replacement of the defective set with a new defect free one. It is submitted by the OP-3 that the Complainant came before this OP along with the alleged mobile set for repairing. But as there were some defects this OP intimated the same to the Complainant as well as to the OP-1 through e-mail. In reply to the e-mail the OP-3 was informed by the OP-1 that as the mobile was purchased by the Complainant from Tirupati, the same can only be changed through the dealer of that place i.e. OP-2. Thereafter the mobile set was returned to the Complainant for doing the needful for replacement of the set. But the Complainant with all sorts of fake and frivolous allegations has filed this complaint against this OP with a view to harass it unnecessary. Being a service it has no deficiency in service as well as unfair trade practice on its part, so this OP cannot be burdened with cost and compensation. Accordingly prayer is made by the OP-3 for dismissal of the complaint with cost.
The Complainant has adduced evidence on affidavit along with some documents in support of his contention.
We have carefully perused the record; documents filed by the Complainant and heard argument advanced by the ld. Counsel for the Complainant and the OP-3. It is seen by us that admittedly the Complainant purchased one mobile hand set on 31.09.2013 from the OP-2 against payment of Rs.3,000/- towards its consideration and the said set was under the coverage of warranty for one year from the date of its purchase. It is the case of the Complainant that within warranty period several defects and problems were cropped up in the mobile set and for removal of the same the Complainant approached the OP-3 being the authorized service centre of the OP-1 on 25.10.2013. The allegation of the Complainant is that inspite of receiving the mobile hand set from him for its necessary repairing; the Op-3 did not bother to return the same to him after repairing till filing of this complaint. Therefore by filing this complaint the Complainant has prayed for either replacement of the defective mobile hand set with a defect free and new one or to refund the amount for Rs.3,000/- as paid by him during its purchase to the OP-2. From the written version it is revealed that admittedly the questioned mobile hand set is suffering from some defects as the OP-3 being the service centre has admitted that it informed the OP-1 through e-mail regarding the defects of the said mobile and the Complainant was also intimated the same. Therefore it can be said that during warranty period several problems cropped up in the said mobile and not only that within a very short period from its purchase the Complainant had to approach before the OP-3 alleging the defects and praying for its removal and necessary repairing. We have noticed that though in the written version the OP-3 has stated that the defective mobile hand set was returned by it to the Complainant without making any repairing, but during argument the Ld. Counsel for the OP-3 has submitted that the said set is still lying with it after its necessary repairing and though the Complainant was intimated time and again to receive his mobile hand set, but the Complainant did not bother to receive the same from the custody of the OP-3. In this respect we are to say that it was the duty of the OP-3 to intimate the Complainant in writing to receive the said set from it after repairing. But the OP-3 has failed to show us that any written correspondence through which the Complainant was intimated that the mobile hand set had already been repaired. As the OP-3 has failed to discharge its duty and liability, hence such inaction of the OP-3 can be termed as deficient. It is true that the OP-3 is not liable and entitled to replace the set or to return the price of the same to the Complainant. The Complainant purchased the set from the OP-2, who has already been expunged from the cause title of the complaint as per the prayer of the Complainant. The OP-1 being the manufacturer of course has some liability and obligation in this matter. As the mobile hand set has already been repaired and lying under the custody of the OP-3, hence the OP-3 is under obligation to return the same to the Complainant upon giving prior letter/intimation to him. The Complainant purchased the mobile hand set on 31.09.2013, but could not use/enjoy the questioned hand set for a prolonged period due to its several problems and since 25.10.2013 the set is lying with the OP-3 and in the meantime warranty expired, hence the OP-3 being the authorized service centre of the OP-1 shall arrange to provide further warranty for one year from the OP-1 and the warranty for one year will start on and from the date of receipt of the hand set from the OP-3.
We have noticed that within a period of less than one month from the date of purchase the mobile hand set became defective and as the grievance of the Complainant had not been redressed by the OP-1, inspite of receipt of an e-mail from the OP-3, the Complainant has initiated this complaint before this Ld. Forum. Inspite of receipt of notice the OP-1 did not appear to contest the complaint. Such action of the OP-1 cannot save it from its deficient service being the manufacturer of the said hand set and for which the OP-1 is liable to pay compensation to the Complainant.
Going by the foregoing discussion hence, it is
O r d e r e d
that the complaint is allowed on contest with cost against the OP-3 and allowed ex parte against the OP-1. The OP-3 shall returned the repaired mobile hand set (Celkon 7045) to the Complainant within 30 days from the date of passing of this judgment, in default the OP-3 shall take step to replace the defective mobile with a defect free of similar description and new one after obtaining the same from the OP-1 within 45 days from the date of passing of this judgment. The OP-3 shall pay a sum of Rs.500/- as litigation cost to the Complainant within 45 days from the date of this judgment, in default the Complainant may put the order into execution. The OP-1 shall provide warranty for a period of 12 months to the Complainant in connection with the questioned hand set which will start on and from the date of receipt the mobile set from the OP-3 by the Complainant. The OP-1 is directed to extend its all sorts of co-operation to the OP-3 in respect of providing service to the Complainant and the OP-1 shall pay a sum of Rs.500/- as compensation due to mental agony, pain and harassment faced by the Complainant within 45 days from the date of this judgment, in default the Complainant is at liberty to put the decree into execution as per provision of law.
Let plain copies of this order be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
