Punjab

Faridkot

CC/15/47

Ram Dhan - Complainant(s)

Versus

Chairman MD Micromax Infromatic Ltd. - Opp.Party(s)

Kirandeep sharma

15 Jul 2015

ORDER

        DISTRICT  CONSUMER  DISPUTES  REDRESSAL  FORUM,  FARIDKOT

 

Complaint No. :        47

Date of Institution :  19.03.2015

Date of Decision :     15.07.2015

 

Ram Dhan s/o Sh Tara Chand through Jaswinder Singh,  Pankaj Kumar, H. No 49, Street No. 6 L, Dogar Basti, Faridkot.

   .....Complainant

Versus

1. Chairman/M D, Micromax Informatics Ltd, 90 B, Sec-18, Gurgaon, Haryana-122015.

2. Incharge/Prop. M/s V M Enterprises Service Centre, Near Handa Agency, Moga Road, Kotkapura, Distt Faridkot.

                                        ....Opposite Parties(Ops)

    

   Complaint under Section 12 of the

   Consumer Protection Act, 1986.

    

   Quorum:     Sh. Ajit Aggarwal, President.

   Smt Parampal Kaur, Member,

   Sh P Singla, Member.

   Present:       Sh K D Sharma,  Ld Counsel for complainant,

    OP-1 & 2 Exparte.

    

   (Ajit Aggarwal , President)

                                                Complainant has filed the present complaint under Section 12 of the Consumer Protection Act, 1986 against Ops seeking directions to Ops to replace the defective mobile hand set with new one and for also directing Ops to pay Rs 20,000/- as compensation for mental agony and harassment etc.

   2                                          Briefly stated, the case of the complainant is that complainant purchased a mobile phone of Micromax model A.94 dual sim with IMEI No. 911343701685861 and 911343701685879 worth Rs 7,914/- from OP-1 online through Flipkart.com on 2.03.2014 and said handset was delivered to complainant on his address. After about 5 months of purchase, due to some problem in mobile hand set, complainant complained about this fact at the customer care number of OPs and he was advised by concerned official of OP-1 to show his said mobile hand set with Op-2 and as per advise of said official, complainant deposited his handset with dealing hand of Op-2, who gave him a receipt and also assured that his hand set would be repaired within few days, but even after expiry of many days, they did not repair his mobile phone. Complainant  again approached Op-1 through their customer care number, who informed him that his mobile hand set is not repairable and in place of it they would send a new mobile for complainant, which complainant can collect from Op-2 and message in this  regard was also sent by them on his phone. Thereafter, complainant visited the office of OP-2 after some days and told them about his all conversation with OP-1 and on this OP-2 gave complainant a second hand mobile hand set for time being and assured complainant that they would deliver his new mobile hand set to him, on receiving the same from OP-1 and gave receipt to this effect and also asked him to come after some days. After few days, when complainant again visited the office of OP-2 to receive his hand set, officials of Op-2 insulted him and asked him to leave the place. They humiliated the complainant and said that neither they have received any new mobile phone for complainant nor it would come to them and nor it would be given to complainant, whatever was due to him, has already been provided to him. All this amounts to deficiency in service and trade mal practice and has caused much inconvenience, harassment and mental agony to complainant and due to this complainant has prayed for seeking direction to Ops to pay Rs 20,000/- as compensation for mental agony and harassment etc  besides the main relief. Hence, the complaint.

   3                                             The Counsel for complainant was heard with regard to admission of the complaint and vide order dated 24.03.2015, complaint was admitted and notice was ordered to be issued to the opposite party.

   4                                                             On receipt of the notice, OP- 2 filed reply taking preliminary objections that complaint is not maintainable as no cause of action arises in favour of complainant and complaint has concealed the material facts from this Forum and has not come to the Forum with clean hands and moreover, complaint filed by complainant is false, frivolous, vexatious and vague and is filed only to extract money from OPs. It is liable to be dismissed as complainant has no locus standi to file the present complaint. It is asserted that this Forum has no jurisdiction to hear and try the present complaint. It is further submitted that in November 2014, complainant brought his mobile with complaint that it is not working properly, which was replaced and the defective one was taken and a new replaced one (by way of SWAP) was given to complainant on the invoice given to complainant duly signed by O-2, which is clear from the copy of invoice and said phone is being used by complainant without any complaint till today and has never been brought to OP-2 with any complaint and therefore, present complaint is liable to be dismissed. However, on merits OP- 2 has denied all the allegations levelled by complainant being wrong and incorrect and reiterated that there is no deficiency in service on the part of answering Ops. All other allegations and allegation with regard to relief sought were refuted with a prayer that complaint may be dismissed with costs against the answering opposite parties.

   5                                          Despite proper notice, OP-1 did not appear before this Forum, during proceedings of complaint case, OP-2  also, did not appear in the Forum, therefore, vide detailed order dated 16.06.2015, the opposite party No. 1 and 2 were proceeded against exparte.

   6                                                Parties were given proper opportunities to lead evidence to prove their respective pleadings. The complainant tendered in evidence his affidavit Ex.C-1 and documents Ex C-2 to 4 and then, closed the evidence.

      7                                                The ld Counsel for complainant argued that on 2.03.2014, complainant purchased a mobile phone of Micromax Company model A.94 dual sim from OP-1 online through Flipkart.com for a price of Rs 7,914/-. This phone was delivered to complainant on his residential address. Copy of the bill is Ex C-2. After about 5 months, the mobile phone got some technical problem and complainant contacted with customer care helpline of OP-1 and told him about the problem. The Executive of OP-1 instructed complainant to visit OP-2. OP-2 kept the phone of complainant with them and gave him a hand written receipt and assured him that they will repair it within some days and gave him an old phone of same model to use it for meanwhile. The complainant did not receive any information from OPs for many days and then he again contacted OPs at their customer care helpline number and they informed him that his phone can not be repaired and they give him a new phone in lieu of that phone and he can get his phone from OP-2. OP-1 also sent a complaint number to the complainant. Job sheet issued by OP-2 is Ex C-3. After some days, complainant visited the office of OP-2 and told them about the conversation that took place between complainant and OP-1 and demanded a new phone but the OP-2 told that new set is not received from the Company and as and when it comes, it will be delivered to complainant. After few days, complainant again visited the office of OP-2, but OP-2 refused to deliver the new phone set and told him that the phone which was earlier given to him is given to him in full and final settlement and now no new set will be given in replacement and also insulted him. The complainant is entitled to get new phone in replacement of his old phone as promised to him by OP-1. OP-2 gave him old phone set in lieu of his phone. It amounts to deficiency in service and unfair trade practice on the part of OPs. He has prayed for accepting the complaint.

   8                                       OPs are already proceeded against exparte but OP-2 had filed his written reply which is placed on record. We took it as part of arguments by OP-2. OP-2  pleaded that complainant has not come to the Forum with clean hands and has concealed the material facts. The complainant visited the office of OP-2 in November, 2014 and brought his mobile which was not working properly. The OP-2 replaced the defective one with another phone by way of SWAP and gave note to this effect on the invoice and the said phone is used by the complainant without any complaint till today and he has not brought that phone to OP-2. There is no deficiency in service on the part of OPs and complaint is liable to be dismissed.

   9                                        We have heard learned counsel for parties and have very carefully perused the affidavits & documents placed on the file by complainant as well as opposite party. After careful observation of the record placed on file and evidence led by parties, it is observed that it is the admitted fact that complainant purchased the mobile phone manufactured by OPs and it had some technical defect and complainant gave his phone to OP-2 for repair. Version of OP-2 is that they gave another phone to complainant and replaced the phone by way of SWAP and now, complainant is not entitled to get any new phone in replacement. The complainant produced  copy of job sheet Ex C-3, vide which it is clear that the phone of complainant was sent to the Company for replacement and it was received by OP-2 after replacement on 1.01.2015, then, how OP-2 gave a new phone to complainant in November 2014. It is clear that OPs want to cheat and befool the complainant and they gave him the old phone in replacement instead of a new phone. We are of the considered opinion that there is deficiency in service and unfair trade practice on the part of OPs. Hence, the present complaint is allowed and OPs are ordered to give a new mobile phone of same model to the complainant in replacement of his old defective phone within one month from the date of the receipt of the copy of the order. Complainant is directed to return the phone which was given to him by OP-2 earlier on receipt of the new mobile phone. OPs are also directed to pay Rs 5,000/-to complainant for harassment and mental agony suffered by him alongwith Rs 2,000/-as cost of litigation. Compliance of the order be made in prescribed time failing which complainant shall be entitled to proceed under Section 25 and 27 of the Consumer Protection Act. Copy of the order be supplied to parties free of cost as per law. File be consigned to the record room.

   Announced in open Forum:

   Dated: 15.07.2015

   Member                Member            President (Parampal Kaur)         (P Singla)             (Ajit Aggarwal)