Jammu and Kashmir

Jammu

CC/2/2018

TARA CHIB - Complainant(s)

Versus

CELL SHELL - Opp.Party(s)

SANJEEV KOHLI

04 Oct 2018

ORDER

DISTRICT    CONSUMER     DISPUTES   REDRESSAL  FORUM, JAMMU

                (Constituted under J&K Consumer Protection Act,1987)

                                                         

 Case File  No               324/DFJ         

 Date of  Institution   :  28-11-2017

 Date of Decision      :    18 -09-2018

 

Tara Chib,

S/O Lt.Sh.Bishamber Singh Chib,

R/O Hari Vihar Colony,

Kunjwani By-Pass,Jammu.

                                                                                                                                    Complainant

             V/S

1.Cell Shell 430 J.M.C.

  Main Road High Court,

Janipur Jammu-180007.

2.Gionee Service Centre

  Sai Enterprises 167 A/B,

  Ist Floor Railway Road, Near

Vermani Department Store

Nanak Nagar, Jammu.

3.Gionee Manufacturing Unit,

  Faridabad,Haryana.

                                                                                                                                    Opposite parties

CORAM:-

                  Khalil Choudhary    (Distt.& Sessions Judge)   President

                  Ms.Vijay Angral                                                      Member

                  Mr.Ghulam Sarwar Chauhan                                Member.

 

In the matter of: Complaint under section 10 of J&K Consumer

                              Protection Act 1987.

     

 Mr.Sanjeev Kohli,Advocate for complainant, present.

   Nemo for OPs.

                                                            ORDER

                                             Facts relevant for the disposal of complaint in hand are that; complainant purchased one Gionee phone  from OP1,on,20-01-2017,for sale consideration of Rs.11,300/-(Copy of bill is annexed as Annexure-A)but within warrant period, the handset was marred by defects, like heating of the handset, switched off automatically and Hang problem and sometimes it shows offline when anybody calling. Complainant approached OP1 for replacement of defective handset with a brand new one as per terms and conditions of warranty, but OP1 instead of acknowledging the manufacturing defect in the handset behaved in a rude manner and thereafter advised complainant to submit the same before authorized service centre and on the advice of OP1,complainant without wasting any time approached OP2  and submit his handset on,23-10-2016,who in turn assured that his handset will be repaired and the handset will be delivered to him on the same day,however,neither the handset was rectified nor delivered to him on the same day. That on the next day complainant received the handset from the service centre with the assurance that the handset was repaired and was in OK condition, but after few days of repair, same problem persisted and complainant again approached OP2 on,20-11-2017 and apprised him that the handset had developed same problem and submit the handset for repairs and told him that the handset will be delivered on next day and issued a job sheet (Annexure-B),but till date neither the handset repaired nor delivered to him. Allegation of complainant is that he repeatedly approached OP2 for replacement of handset, as the same was under warranty, but OP2 flatly refused to replace the same and according to complainant constitutes deficiency in service, hence the present complaint. In the final analysis, complainant prays for refund of Rs.11,300/ (i.e. cost of handset) and in addition, prays for compensation to the tune of Rs.70, 000/-under different heads.

                       Notices were sent to the OPs alongwith copies of complaint through registered covers with acknowledgment due and as per record the notices were received by the Ops, but they did not choose to represent their case in this Forum, either to admit the claim of complainant or to deny the same within stipulated period provided under the Act, so their right to file written version was closed by this Forum and the complainant was ordered to produce evidence by way of affidavits in support of the complaint.

            The complainant adduced evidence by way of duly sworn his own affidavit and affidavits of Akhilshwar Jamwal and Jatinder Singh,respectively.The complainant has placed on record copy of retail invoice, copy of job sheet and copies of track consignments.

                     We have perused the case file and also heard learned counsel appearing for the complainant.

                Briefly stated facts of the case are that; complainant purchased one Gionee phone  from OP1,on,20-01-2017,for sale consideration of Rs.11,300/- but within warrant period, the handset was marred by defects, like heating of the handset, switched off automatically and Hang problem and sometimes it shows offline when anybody calling. Complainant approached OP1 for replacement of defective handset with a brand new one as per terms and conditions of warranty, but OP1 instead of acknowledging the manufacturing defect in the handset behaved in a rude manner and thereafter advised complainant to submit the same before authorized service centre and on the advice of OP1,complainant without wasting any time approached OP2  and submit his handset on,23-10-2016,who in turn assured that his handset will be repaired and the handset will be delivered to him on the same day,however,neither the handset was rectified nor delivered to him on the same day. That on the next day complainant received the handset from the service centre with the assurance that the handset was repaired and was in OK condition, but after few days of repair, same problem persisted and complainant again approached OP2 on,20-11-2017 and apprised him that the handset had developed same problem and submit the handset for repairs and told him that the handset will be delivered on next day and issued a job sheet (but till date neither the handset repaired nor delivered to him. Allegation of complainant is that he repeatedly approached OP2 for replacement of handset, as the same was under warranty, but OP2 flatly refused to replace the same and according to complainant constitutes deficiency in service.

                     The complainant in his own affidavit and  affidavits of Akhilshwar Jamwal and Jatinder Singh,respectively have supported the averments of the complaint. There is no evidence on record produced by other side to rebut the case of complainant. So from perusal of complaint, documentary and other evidence produced by the complainant, it appears that the complainant has succeeded in proving his case as narrated by him in the complaint. The complaint is fully supported by the affidavit of complainant, and affidavits of Akhilshwar Jamwal and Jatinder Singh,respectively,so, in the given circumstances of the case, and in view of the evidence on record, there is no reason to disbelieve the averments of complainant in complaint. This is a case of deficiency in service. The Ops despite service of notice, sent by the Forum through registered cover have not taken any action to represent the case before this Forum, either to admit the claim of complainant, or to deny it, so there is no reply filed by the Ops in this complaint and there is also no evidence in rebuttal. The present case of the complainant is covered by Section 11 2(b) (ii) of the Consumer Protection Act, 1987, which provides that in a case, where the OPs omits or fails to take any action to represent their case within the time given by Forum, in that situation, the Forum shall settle the consumer dispute on the basis of evidence brought to its notice by the complainant. Sub-clause (ii) of the Section 11, clearly provides that even where the OPs omits or fails to taken any action to represent their case before the Forum, the dispute has still to be decided on the basis of evidence brought to its notice by the complainant.

                  In addition complainant has also supported the averments contained in the complaint by duly sworn his own affidavit and affidavits of Akhilshwar Jamwal and Jatinder Singh,respectively, which are corroborative of the facts contained in the complaint. Therefore, in the light of unrebutted averments contained in the complaint and documents on record, we are of the opinion that complainant successfully made out a case of deficiency in service by Ops.

                      Therefore, in view of aforesaid discussion, the complaint filed by the complainant for redressal of his grievance is allowed and Ops are directed to refund the cost of handset to the tune of Rs.11,300/- to the complainant. Complainant is also entitled to compensation of Rs.5000/-for causing unnecessary harassment and mental agony and litigation charges of Rs.5 000/-, respectively. The Ops shall comply the order, within one month, from the date of receipt of this order. Copy of this order be provided to both the parties, as per requirement of the Act. The complaint is accordingly disposed of and file be consigned to records after its due compilation.

Order per President                                                    Khalil Choudhary

                                                                                     (Distt.& Sessions Judge)

                                                                                            President

Announced                                                           District Consumer Forum

    18-09-2018                                                                       Jammu.

 

Agreed by                                                               

                                                                           

Ms.Vijay Angral                                              

 Member    

 

Mr.Ghulam Sarwar Chauhan

Member