Punjab

Faridkot

CC/18/70

Sumit Kumar - Complainant(s)

Versus

Dabra Communications - Opp.Party(s)

Pardeep Singh Atwal

09 Apr 2019

ORDER

DISTRICT  CONSUMER  DISPUTES  REDRESSAL  FORUM,  FARIDKOT

 

C.C No. :                   70 of 2018

Date of Institution :    24.04.2018

Date of Decision :       9.04.2019   

 

Sumit Kumar son of Chiman Lal, Ekta Nagar, Ward No.13, Malout Tehsil Malout, District Sri Muktsar.

   .....Complainant

Versus

1. Dabra Communications, Moga Road, Near Bus Stand, Kotkapura, through its Authorized Signatory.
2.  Universal Technologies, SCF-72, Ground Floor, Aggarsain Market, NR Bathinda-151001.
3. Samsung 20-24 Floors, Two Horizon Communication Centre, Golf Course Road, Sector 43, Gurgaon-122002.

......Ops

Complaint under Section 12 of the

Consumer Protection Act, 1986.

 

Quorum:     Sh. Ajit Aggarwal, President.

Smt Param Pal Kaur, Member.

 

Present:       Sh Pardeep Atwal, Ld Counsel for complainant,

Sh Jatinder Bansal, Ld Counsel for OP-3,

OP-1 and OP-2 Exparte,

 

ORDER

(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

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Ops to pay Rs.50,000/- as compensation for mental agony and harassment etc and litigation expenses of Rs.20,000/-.

2                                             Briefly stated, the case of the complainant is that complainant purchased a mobile phone of Samsung Model S-8 Plus  IMEI No. 357851080715217 from OP-1 vide bill dated 10.05.2017 on cash payment of Rs.63,900/- and also paid Rs.1000/-to OP-1 on account of insurance of mobile. After purchase, when complainant started using the same, he came to know that there is some manufacturing defect in said mobile phone and it stopped functioning after some time. Complainant immediately complained about this to OP-1, who sent him to Op-2 i.e the Service Centre of Ops. On 12.10.2017, complainant deposited his mobile set with original bill, box, adopter and cable for the purpose of checking and he was given acknowledgment for handing over his mobile to OP-2. On 4.11.2017, instead of giving him his own set after repairs, OP-2 gave a standby set to complainant. Complainant issued letter dated 6.11.2017, but OPs did not give him his original mobile hand set and despite repeated requests, till now,  OPs have not returned his mobile hand set to him after repairs. Complainant also complained about this to the ASM Officer of OPs, but all in vain. Complainant approached OP-1 and made several requests to him to replace his old defective set with new one, but OP-1 also did not resolve his problem. Complainant again requested all OPs to return his old mobile set after repairs or to  replace the same, but they have not redressed his grievance. Despite repeated requests to OPs regarding mobile in question, OPs did not do the needful and all his efforts to get it repaired or replaced bore no fruit and complainant has suffered great harassment and mental tension due to this act of OPs, which amounts to deficiency in service and trade mal practice on the part of OPs and due to this complainant has prayed

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for seeking direction to Ops to pay compensation and litigation expenses 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 1.05.2018, complaint was admitted and notice was ordered to be issued to the opposite parties.

 4                                                On receipt of the notice, OP-3 filed reply taking averments that complaint filed by complainant is false, frivolous and is gross abuse of process of law. It is submitted that complaint is bad for misjoinder of parties and answering OP has unnecessarily been impleaded as party in present case.  It is averred that complainant is not their consumer as handset in question was not purchased by complainant himself, rather it was purchased by one Rahul Gandhi and complainant has purchased a second hand mobile set from Rahul Gandhi and answering OP has no liability towards complainant. It is asserted that handset in question was not properly handled by complainant because on 12.10.2017 when complainant handed over said mobile set to OP-2, OP-2 after checking it completely found that it was working properly and there is no manufacturing defect in said mobile hand set. OP-2 called upon complainant to take back his mobile hand set from him, but complainant did not come back to take his mobile. Complainant has concealed the material facts from this Forum and submitted that complainant gave his handset to OP-2 on 12.10.2017 with problem of ‘audio not clear when headphone connected’, but when OP-2 retained the handset for checking, OP-2 gave him a standby handset and after checkingOp-2 found that there was no manufacturing defect in said handset and it was working perfectly. OP-2 called upon complainant to take back his mobile handset, but complainant intentionally did not take back his mobile handset and asked for replacement

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without any justification. It is averred that this Forum has no jurisdiction to hear and try the present complaint and allegations levelled by complainant are false and frivolous. There is no manufacturing or other defect in mobile in question and it is working properly. There is no deficiency in service on the part of  OP-3, rather complainant himself did not take back his mobile handset and is adamant for getting new mobile phone by making replacement of his second hand old mobile hand set. It is  reiterated that there is no deficiency in service on the part of OP-3. All the other allegations and allegation with regard to relief sought too are refuted being wrong and incorrect and prayed for dismissal of complaint.

5                                                        Notice issued to OP-1 and OP-2  through RC AD, but on date fixed, no body appeared on behalf of OP-1 and 2 to defend the allegations of complainant. Case was called out several times. Despite several calls, when no body made presence in the Forum on behalf of OP-1 and 2 either in person or through counsel, then, vide order dated 19.06.2018, both OP-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 Ex C-14 and then, closed the evidence.

7                                                         Ld Counsel for OP-3 tendered in evidence affidavit of Anup Kumar Mathur Ex OP-3/1 and documents Ex OP-3/2 to Ex OP-3/3 and then, closed the evidence on behalf of OP-3.

 

 

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8                                                        We have heard the ld counsel for parties and have carefully gone through the evidence and documents placed on record by respective parties.

 9                                                        The ld Counsel for complainant argued that complainant purchased a mobile phone of Samsung model S-8 Plus from OP-1 vide bill dated 10.05.2017 on cash payment of Rs.63,900/- having guarantee of one year against any defect in phone, but since the beginning, said phone did not work properly and started creating hindrance. Complainant reported this fact to OP-1, who sent him to OP-2 service centre of OPs. Complainant handed over his mobile hand set alongwith its accessories to OP-2, but till date OP-2 has neither removed the manufacturing defect from his mobile hand set nor have returned the same. Ld counsel for complainant contended that mobile in question is under guarantee and warrantee and OPs are bound to repair or replace the same. Complainant made many requests to OPs repair or replace the mobile phone, but all in vain. Complainant has suffered great harassment due to this act of OPs, which amounts to deficiency in service. He has prayed for accepting the present complaint.

10                                            To controvert the allegations of complainant, ld counsel for OP-3 argued that present complaint is false, frivolous and is gross abuse of process of law. It is submitted that there is no manufacturing or other defect in said phone and it has been working properly. Handset in question was not properly handled by complainant because on 12.10.2017 when complainant handed over said mobile set to OP-2with problem of ‘audio not clear when headphone connected’, OP-2 retained the said handset for checking and gave him a standby handset and after thorough checking OP-2 found that there was no manufacturing defect in said handset and it was working perfectly. OP-2 called upon complainant

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to take back his mobile handset, but complainant did not receive back his mobile hand set and insisted for replacement without any justification. Complainant remained adamant for getting new mobile phone and did not take back  his mobile phone. It is further submitted that there is no deficiency in service on the part of their part and prayed for dismissal of complaint.

11                                                                After careful observation of the record placed on file and evidence led by parties, it is observed that allegation of complainant is that he purchased new mobile handset worth Rs.63,900/-from OPs against proper bill, but it has some manufacturing defect and to remove the  defect, he handed over his mobile set to OP-2 service centre for repair purpose, but till now, OPs have neither repaired his mobile set nor returned the same to complainant. He has requested for replacement of his mobile handset with new one. On the contrary, OP-3 brought before the Forum that complainant gave his handset to OP-2 on 12.10.2017 with problem of ‘audio not clear when headphone connected’, but when OP-2 retained the handset for checking, OP-2 gave him a standby handset and after careful and thorough checking OP-2 observed that there was no manufacturing defect in said handset and it was working perfectly. There was no manufacturing defect in said phone, rather complainant himself did not handle the said mobile set properly. OP-2 called upon complainant to take back his mobile handset, but complainant did not take back his mobile handset and insisted for replacement without any justification. All the other allegations are also denied. it is also brought to the notice of this Forum that complainant is not the their consumer as said mobile phone in question was not purchased by him from OP-1, rather complainant purchased the same from one Rahul Gandi as second hand mobile hand set. Real owner of this mobile handset is Rahul Gandhi. It is also

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observed that during the course of proceedings, OP-3 produced the said mobile in the Forum and  showed that there is no manufacturing or other defect in said mobile handset and it has been working perfectly and properly, but complainant denied to accept the same and insisted for getting new mobile handset by way of making replacement.

12                                           From the above discussion and keeping in view the circumstances of the case, it is made out that there is no deficiency in service on the part of OPs. Complainant has failed to prove his case. Therefore, complaint in hand his hereby dismissed being devoid of any merits. Complainant is directed to receive back his mobile hand set from OP-2 on return of stand by handset given by OP-2 to him. However, in peculiar circumstances of the case, there are no orders as to cost. Copy of the order be supplied to parties free of cost. File be consigned to the record room.

Announced in open Forum:

Dated: 9.04.2019                        

(Param Pal Kaur)              (Ajit Aggarwal)

 Member                                        President