BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.245 of 2014

Date of Instt. 23.07.2014

Date of Decision :24.04.2015

Parween Kumar son of Ram Sawroop R/o 34 Rani Bagh, Basti Peer Daad, Jalandhar.

..........Complainant

Versus

1. Cell World, through its MD/Director/General Manager/Manager/Representative/Prop., Shop No.27, Canal Road, Jalandhar-144001.

2. Logic Computers, through its MD/Director/General Manager/ Manager/Representative, First Floor, Guru Amar Dass Market, Prem Palace Complex, Over SBI ATM, Near Bank of India, Garah Road, Jalandhar.

3. Black Berry Corporate Office through its MD/Director/General Manager/Manager/Representative, 76-Udyog Vihar-1, Gurgaon, Haryana, India.

.........Opposite parties

Complaint Under Section 12 of the Consumer Protection Act.

Before: S. Jaspal Singh Bhatia (President)

Ms. Jyotsna Thatai (Member)

Sh.Parminder Sharma (Member)

Present: Sh.Rajat Chopra Adv., counsel for complainant.

Sh.Sanjiv Sharma Adv., counsel for opposite party No.2.

Opposite parties No.2 and 3 exparte.

Order

Jyotsna Thatai (Member)

1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act against the opposite parties on the averments that the complainant is a customer and opposite party No.1 is dealer of mobile phones and opposite party No.2 is the service centre of the Blackberry phone and complainant purchased a mobile handset bearing model number Blackberry Q5 and IMEI No.356969051254783 from the opposite party No.1 vide invoice No.4086 dated 26.3.2014 manufactured by Blackberry company. When opposite party No.1 opened the box of the above mentioned handset then he found that the handset is faulty and on this complainant said to the opposite party No.1 about the defect and then opposite party No.1 told that this is nominal defect and referred the case to the service centre and opposite party No.2 will solve this issue. On next day complainant approached to the service centre which is opposite party No.2 and they said this is a physical damage and service centre is not responsible for it. On this complainant approached to the dealer and gave the handset to the opposite party No.1 and opposite party No.1 claimed time of one week and said that he will replace the above mentioned handset within one week but he was unable to do so and claimed more time. Finally on 16.4.2014 opposite party No.1 deposited the handset with the service centre on the name of the complainant and the receipt of that was handed over to the complainant and opposite party No.1 stated that they are having conversation with the ASM of the above mentioned company and he assured that they are processing the change of the above mentioned handset but after few days opposite party No.1 showed its in ability to do so and gave the contact details of the ASM Mr.Deputy Sharma having contact No.08968573200 and then complainant had the conversation with the ASM of the company and ASM told that he already had the conversation with the concerned person and asked that his case is in process. After this complainant approached the service centre which is opposite party No.2 and opposite party No.2 demanded Rs.7500/- to solve this issue which is a fraud on the part of the all the opposite parties. Handset is still lying with the service centre of the company and complainant is unable to use his handset from the date, he purchased it and got harassed due to this. On such like averments, the complainant has prayed for directing the opposite parties to refund the price of the handset to him alongwith interest. He has also claimed compensation and litigation expenses.

2. Upon notice, opposite parties No.1 and 3 did not appear and as such they were proceeded against exparte. However, opposite party No.2 appeared and filed a written reply pleading that opposite party No.1 deposited the handset with the service centre and as per job sheet opposite party No.2 narrated the problem as handset touch panel LCD damaged. As per the job sheet it is very much clear that the said product is damaged and is not covered under warranty. The opposite party No.2 have demanded the cost of the repair of the set. It is admitted that set is still lying with it and denied other material averments of the complainant.

3. In support of his complaint, learned counsel for complainant has tendered into evidence affidavit Ex.CW1/A alongwith copies of documents Ex.C1 to Ex.C7 and closed evidence

4. On the other hand, learned counsel for opposite party No.2 has tendered affidavit Ex.OP2/A and evidence of the opposite party No.2 was closed by order.

5. We have carefully gone through the record and also heard the learned counsel for the complainant and learned counsel for the opposite party No.2.

6. Complainant purchased the Blackberry Q5 mobile handset in question from opposite party No.1 vide retail invoice dated 26.3.2014 Ex.C1 for Rs.19,000/-. According to the complainant when he opened the box after purchasing the mobile handset, he found fault in it and told about the same to opposite party No.1 and opposite party No.1 told him that it is a nominal defect and referred the case to the service centre for solving the problem. Opposite party No.2 is service centre. In its written reply, opposite party No.2 has admitted that opposite party No.1 deposited the handset with it. Opposite party No.2 issued the job sheet Ex.C2 wherein it is specifically mentioned that handset touch penal LCD damaged. So it is case of physical damage and same is not covered under the warranty. So opposite parties No.2 and 3 are not liable for the damage to the mobile handset in question. However, dealer can not escape its liability. In Balaji Motors Vs. Devendra & ANR, II(2013) CPJ 534(NC), the Hon'ble National Commission has held as under:-

"We have examined the material on record and given a thoughtful consideration to the arguments advanced before us. Vide impugned order passed by the State Commission, it has only been stated that since the complaint was made to the dealer within the warranty period, it was the duty of the dealer to attend to the same and repair the vehicle. The petitioner was directed to repair the vehicle to the satisfaction of the appellant within three months. We do not find anything wrong with this order. If the vehicle is presented before the dealer within the warranty period, it is his duty to attend to the complaints, if any, and rectify the defects to the satisfaction of the complainant. In case, the dealer thinks that there is no defect in the vehicle, it can give a certificate to this effect that the vehicle is fit from all angles. Such a certificate shall be open to scrutiny by any expert/specialized agency. However, the dealer can not escape his responsibility of attending to the complaints if made before it during the warranty period".

7. According to the complainant, when he purchased the handset and opened it, it was faulty and told about it to opposite party No.1. The fact that opposite party No.1 deposited the mobile handset with the service centre also corroborates his version. Opposite party No.1 has not come present to rebut the allegations of the complainant. So it is liable for selling the defective mobile handset to him.

8. In view of above circumstances, the present complaint is accepted against opposite party No.1 and opposite party No.1 is directed to either give new mobile handset of the same make and model to the complainant or in the alternative to refund its price i.e Rs.19,000/- to him. The opposite party No.1 is also directed to give Rs.3000/- in lump sum on account of compensation and litigation expenses to the complainant. Opposite party No.1 may receive back the old mobile handset from opposite party No.2 with whom it deposited the defective mobile handset. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.

Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia

24.04.2015 Member Member President