BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMRITSAR.
Consumer Complaint No. 685 of 2015
Date of Institution: 27.11.2015
Date of Decision: 09.08.2016
Sh.Harjinder Singh Dhanjal S/o Didar Singh, resident of 415-A, New Kot Atma Ram, Gali No.2, Sultanwind Road, Amritsar
Complainant
Versus
- Customer Care Officer, LAVA International Limited, A-56, Sector No. 64, Noida 201301 India
- Jasbir Telecom,Service Centre of Lava, Kitchlu Chowk, Amritsar
- Anand Telecom, Bazar Lachhmansar, Near Dhab Wasti Ram, Amritsar
Opposite Parties
Complaint under section 12 & 13 of the Consumer Protection Act, 1986 as amended upto date.
Present: For the Complainant : Sh.Rajan Sanyal, Advocate.
For the Opposite Parties No.1 & 2 : Sh.Munish Menon,Advocate
For the Opposite Party No.3 : Sh.Munish Kohli,Advocate
Coram:
Sh.S.S.Panesar President
Ms.Kulwant Kaur Bajwa, Member
Mr.Anoop Sharma, Member
Order dictated by:
Sh.S.S.Panessar,President.
- Harjinder Singh, complainant has brought the instant complaint under section 12 & 13 of the Consumer Protection Act on the allegations that complainant has purchased a Dual Sim handset mobile make LAVA, Model Iris XI Grand having IMEI No. 911424852873157 from opposite party No.3 on 2.6.2015 in the name of Sh.Raj Kumar Sharma against Retail Invoice No. 5166. Soon after some time, the said mobile handset in question creating trouble in its functioning . the complainant reported the matter to opposite party No.3 and disclosed about the defect in the function of the mobile hand set. The complainant deposited the handset in the office of opposite party No.2 on 21.9.2015 on the request of the person concerned. The defect which was found in the mobile handset was “SIM TRAY BREAK” and the office of opposite party No.2 issued job sheet dated 21.9.2015 in favour of the complainant and charged a sum of Rs. 470/- as repair charges. But the said defect was never removed by opposite party No.2 even after repeated visits and requests of the complainant. When the complainant requested opposite party No.2 to show any mail whatsoever issued by opposite party No.2 to opposite party No.1, opposite party No.2 used filthy and rough language against the reputation of the complainant in the presence of other customer . The complainant is an old age Sr.Citizen and a retired officer. The opposite parties even forcibly compelled the complainant to take the mobile set alongwith him without any repair or removing the defect in the mobile hand set. The complainant also issued legal notice dated 17.10.2015 through his counsel upon the opposite parties with a request to provide a new mobile handset to the complainant within the statutory period of 15 days from the receipt of legal notice. But the opposite parties have totally failed to comply with the directions incorporated in the legal notice. The complainant has sought for following reliefs vide instant complaint:-
- Opposite parties be directed to make payment of the mobile handset to the tune of Rs. 7100/- alongwith interest @ 18% p.a. from the date of purchase i.e.2.6.2015;
- Compensation of Rs. 2,50,000/- may also be awarded to the complainant for the harassment, mental pain and agony suffered to him at the hands of the opposite parties.
- Cost of litigation may also be awarded to the complainant.
Hence, this complaint.
2. Upon notice, opposite parties No.1 & 2 filed joint written statement while opposite party No.3 filed separate written statement to contest the claim of the complainant.
3. In their joint written statement opposite parties No.1 & 2 took certain preliminary objections therein inter alia that complaint filed by the complainant is not maintainable ; that complainant has not come to the court with clean hands and is guilty of suppression of true and material facts; that complainant has got no locus standi to file and maintain the present complaint ; that the present complaint has been filed without any technical report. So the same is required to be dismissed on this score alone ; that complainant has got no cause of action against the opposite parties ; that present complaint is nothing but an outcome of mere greed of the mind of the complainant; that Lava International Limited is a renowned company and deals in high quality mobile sets. Also company have number of service centres all over the India in order to provide better after sale services to the customers of the company ; that complainant in regard to his complaint about the alleged handset has approached the service centre of company on 2.10.2015 vide job No. 510006069892 and the engineer of the company in accordance to provide better after sale services gave the complete attention to the complainant and checked the unit and found that the alleged mobile was in broken condition. The official of service centre told the complainant that the warranty of alleged mobile has become void due to breakage of mobile by mishandling on the part of the complainant, as per conditions of warranty and the repair of mobile shall be on paid basis. But the complainant instead of getting the mobile handset repaired became adamant not to pay the charges of repair. The complainant rather demanded a new mobile phone in replacement of the broken mobile hand set. It is submitted that the company provides one year warranty an warranty is subject to some conditions i.e.:-
1. Liquid/water logged.
2. Serial number missing
3. Physically damaged
4. Mishandling
5. Tempering
That the answering opposite parties i.e. LAVA International is a renowned company in Electronic Products and Commodities and is manufacturing Electronic products for the past several years. The technology used by the company in manufacturing the World Class Electronic Products is highly sophisticated. No question of any deficiency in service on the part of the answering opposite parties arises . It is also worthwhile to mention here that present complaint is filed without any expert opinion which will prove that the mobile was not working properly. So there is no manufacturing defect and merely by the oral version of the complainant, it cannot be ascertained that the mobile was not working properly. On merits, it is submitted that complainant filed a complaint regarding the alleged mobile handset and approached the service centre of company on 2.10.2015 vide job sheet No. 510006069892. It is submitted that after 2.10.2015 , complainant never reported any complaint about the alleged mobile and despite of it on 2.10.2015 the service centre has offered the paid repair of the alleged mobile as per conditions of warranty. But the complainant refused to get the same repaired. It is further stated that complainant has made false allegations on the opposite parties and has concealed the real facts from the court. Remaining facts narrated in the complaint have been denied and a prayer for dismissal of the complaint with cost has been made.
4. In its written statement , opposite party No.3 also took certain preliminary objections therein inter alia which correspond with the objections taken by opposite parties No.1 & 2 , therefore, there is no gain saying in repeating those allegations. On merits , it is submitted that Raj Kumar Sharma had purchased a dual Sim mobile Lava, Model Iris XI, Grand having IMEI No. 911424852873157 for an amount of Rs. 7100/- from opposite party No.3 on 2.6.2015 and the question of purchase of mobile or its consideration to the opposite party No.3 by the alleged complainant does not arise at all. It is denied that opposite party No.3 reported or given any written complaint to opposite party No.3 . It is also denied that alleged complainant disclosed about the defect in the mobile hand set in question. The story created by the alleged complainant is based on false and flimsy grounds and there is not even an iota or proof therein. No other any alleged harassment, agony was caused by opposite party No.3 to the complainant . On the contrary, the opposite party No.3 is suffering a lot on account of harassment by the alleged complainant for moving false complaint. The alleged complainant is not the consumer under the Consumer Protection Act as amended upto date as he was neither purchaser of the mobile nor he ever paid consideration in respect to purchase of the mobile to opposite party No.3 and a prayer for dismissal of the complaint with cost has been made.
5. In his bid to prove the case Sh.Rajan Sanyal,Adv.counsel for the complainant has tendered into evidence affidavit of the complainant Ex.CW1/A, original bill Ex.C-1, job sheet Ex.C-2, legal notice dated 17.10.2015 Ex.C-3, postal receipt Ex.C-4 and closed the evidence on behalf of the complainant.
6. To rebut the aforesaid evidence Sh.Munish Menon,Adv.counsel for opposite parties NO.1 & 2 tendered into evidence affidavit of Sh.Amardeep Singh Ex.OP1,2/1, copy of Lava Warranty certificate Ex.OP1,2/2 and closed the evidence on behalf of opposite parties No.1 & 2.
7. On the other hand Sh.Munish Kohli,Adv.counsel for opposite party No.3 tendered into evidence affidavit of Sh.Vishal Anand, Prop. of Anand Telecom Ex.OP3/1 and closed the evidence on behalf of opposite party No.3.
8. We have heard the ld.counsel for the parties and have carefully gone through the record on the file as well as written synopsis of arguments submitted by complainant as well as opposite parties No.1 & 2.
9. On the basis of the evidence , ld.counsel for the complainant has vehemently contended that complainant purchased a Dual Sim handset mobile make LAVA from opposite party No.3 on 2.6.2015 in the name of Sh. Raj Kumar against retail invoice, copy whereof is Ex.C-1 on record. But however, soon after the purchase, the mobile handset in question started creating trouble in its functioning and the complainant reported the matter to opposite party No.3 . The complainant deposited the mobile handset in the office of opposite party No.2 on 21.9.2015 on the request of the person concerned with defect i.e. SIM TRAY BREAK”.Office of opposite party No.2 issued job sheet dated 21.9.2015 Ex.C-2 in favour of the complainant and charged Rs. 470/- as repair charges. But however, the defect in the mobile handset was not removed by opposite party No.2 even after repeated visits and requests of the complainant. The complainant requested opposite party No.3 to replace the defective mobile handset with a new one . But opposite parties No.2 & 3 did not pay any heed to the requests of the complainant. The complainant has also suffered mental agony and harassment at the hands of opposite parties No.2 & 3. Thereafter through his counsel served a legal notice dated 17.10.2015 calling upon the opposite parties to provide a new mobile handset to the complainant within statutory period of 15 days from the receipt of the legal notice. Copy of the legal notice is Ex.C-3 while postal receipt accounts for Ex.C-4 to C-6. Despite service of the notice, opposite parties have failed to redress the grievance of the complainant. The complainant has suffered immense mental torture and harassment and financial loss as well as loss of business due to repeat visits to the opposite party without any fault on his part. The opposite parties have indulged in unfair trade practice. Moreover the maxim res-ipsa-liqutor fully applies in this case where there exists clear cut deficiency in service, negligence , mal-practice on the part of the opposite parties with the aim to cause wrongful loss to the complainant and to gain wrongful gain to themselves and it is,therefore, requested that opposite parties may be directed to make payment of the price of the mobile hand set alongwith 18% interest from the date of purchase i.e. 2.6.2015 besides compensation to the tune of Rs. 25000/- may also be awarded in favour of
the complainant for harassment, mental pain and agony suffered by him at the hands of the opposite parties.
10. But however, from the appreciation of the facts and circumstances of the case , it becomes evident that the complainant is not proved to be a consumer of opposite party No.3. The mobile hand set was purchased by one Raj Kumar and copy of the invoice/bill Ex.C-1 bears witness to the said fact. So much so the stand of the complainant that he approached opposite party No.3 in getting the mobile handset repaired or paid Rs. 470/- as repair charges to opposite party No.3 is also not borne out from any documentary evidence on record. No receipt regarding the payment of Rs. 470/- to opposite party No.3 by the complainant has been adduced on record for the reasons best known to the complainant. In the said case neither complainant is purchaser of the mobile handset in dispute nor he availed the services of opposite party No.3 for getting the mobile hand set repaired for consideration, in such a situation the complainant does not fall under the purview of section 2(1)(d) of the Consumer Protection Act and he cannot be said to be a consumer as per provisions of the Consumer Protection Act.
11. Not only that the defect stated in the mobile handset in dispute was SIM TRAY BREAK. The company provides one year warranty on the gadget subject to following conditions i.e.:-
1. Liquid/water logged.
2. Serial number missing
3. Physically damaged
4. Mishandling
5. Tempering
12. In the case in hand, it is not the case of the complainant that SIM Tray Break was already in existence at the time of purchase of the gadget. Rather the defect appears to have occurred due to wear & tear or mishandling of the gadget. The warranty becomes void when any of the conditions occur as enumerated above. In such a situation, the complainant could get the part of the gadget replaced on payment only. But, however, the complainant wants opposite parties to either refund the price of the mobile handset in dispute or to replace the same with new mobile of the same make and mode. He has also prayed for compensation for mental pain, harassment and agony suffered by him to the tune of Rs. 25000/-. But however, complainant has failed to prove that the mobile hand set in dispute was suffering from some manufacturing defect. The alleged defect of SIM TRAY BREAK has occurred due to mishandling of the mobile handset in dispute and the same cannot be said to be a manufacturing defect. Moreover no report of the expert has been adduced on record for reaching the conclusion that the mobile handset in dispute suffered from any manufacturing defect. The complaint filed by the complainant is also silent and does not detail any defect in the functioning of the mobile hand set in dispute. Simply saying that mobile handset was not functioning properly is no allegation regarding the defect in the mobile hand set in dispute. The defect pointed out against job sheet No. 510006069892 relates to ‘SIM TRAY BREAK’ which is replaceable. But the same could not be replaced as the complainant failed to pay the service charges to the opposite party No.3. In such a situation there is no deficiency in service, mal practice or unfair trade practice on the part of the opposite parties. It is rather shows the adamant frame of mind of the complainant, who wanted to get the mobile hand set replaced or refund of the price of the mobile handset from the opposite parties without proving any manufacturing defect in the mobile hand set in dispute .
13. Consequently, there is no merit in the instant complaint and the same merits dismissal . The instant complaint fails and the same is ordered to be dismissed. . Copies of the orders be furnished to the parties free of costs. File is ordered to be consigned to the record room. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Forum.
Announced in Open Forum
Dated : 9.8.2016
/R/ ( S.S.Panesar )
President
( Kulwant Kaur Bajwa) (Anoop Sharma)
Member Member
